Delhi High Court
Pradeep Kumar vs Smt. Anita & Ors. on 5 February, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 23/2010
Date of Decision: February 05, 2010
PRADEEP KUMAR ..... Appellant
Through: Mr. Pradeep Kumar, Adv.
versus
SMT. ANITA & ORS. ..... Respondents
Through: Mr. M. Sajid, Adv. with
Mr. Shahnawaz Ahmed Malik,
Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Appellant through his next friend Smt. Urmila, filed a suit for
permanent injunction and declaration claiming following relief:-
i) To pass a decree of declaration in favour
of the plaintiff and against the defendants
thereby declaring the plaintiff Sh.
Pradeep Kumar as mentally retarded
person, in the interest of justice & equity;
ii) To pass a decree of declaration in favour
of the plaintiff and against the defendants
thereby declaring that no legal & valid
document can be executed qua the
properties of the plaintiff including the
suit property bearing Khasra Nos. 97/7
(4-16), 8(4-16), 9(3-16), 98/1 (0-11), 11
(1-01) total measuring (15-00) situated in
the revenue estate of Village
Kanjhawala, Delhi without the consent &
signatures of Smt. Urmila, the next
friend of the plaintiff, in the interest of
justice & equity;
iii) To pass a decree of permanent injunction
in favour of the plaintiff and against the
defendant no.1 thereby restraining the
defendant no.1, her, assignees,
successors, agents, attorneys,
sympathisors etc. from selling,
alienating, transferring, disposing of or
by any other way creating third party
interest in the suit property i.e. land
bearing Khasra Nos. 97/7 (4-16), 8(4-
16), 9(3-16), 98/1 (0-11), 11 (1-01) total
measuring (15-00) situated in the
revenue estate of Village Kanjhawala,
Delhi of the plaintiff , without the prior
permission of the court of competent
jurisdiction under law, in the interest of
justice & equity;
iv) To pass a decree of permanent injunction
in favour of the plaintiff and against the
defendant nos. 2 to 4 thereby restraining
them, their assignees, successors, agents,
attorneys, sympathisors etc. from
purchasing, taking possession of,
registering, getting mutation sanctioned
in their name(s), using, further
transferring, disposing of or by any other
way creating third patty interest in the
suit property i.e. land bearing Khasra
Nos.97/7 (4-16), 8(4-16), 9(3-16), 98/1
(0-11), 11 (1-01) total measuring (15-00)
situated in the revenue estate of Village
Kanjhawala, Delhi of the plaintiff,
without the prior permission of the court
of competent jurisdiction under law, in
the interest of justice & equity;
v) To pass a decree of permanent injunction
in favour of the plaintiff and against the
defendant no. 5 thereby restraining the
defendant no. 5, his successors or any
other officer competent to mutate any
property in Kanjhawla from sanctioning
any mutation in favour of any other
person regarding the suit property i.e.
land bearing Khasra Nos. 97/7 (4-16),
8(4-16), 9(3-16), 98/1 (0-11), 11 (1-01)
total measuring (15-00) situated in the
revenue estate of Village Kanjhawala,
Delhi of the plaintiff, in the interest of
justice & equity, without the prior
permission of the Court of competent
jurisdiction under law, in the interest of
justice & equity; and
vi) To pass a decree of permanent injunction
in favour of the plaintiff and against the
defendant no. 6 thereby restraining the
defendant no. 6, his successor(s) or any
other officer competent to register any
property in Kanjhawla from
registering/issuing copy of any sale deed
or attorney or title transfer document in
favour of any other person regarding the
suit property i.e. land bearing Khasra
Nos. 97/7 (4-16), 8(4-16), 9(3-16), 98/1
(0-11), 11 (1-01) total measuring (15-00)
situated in the revenue estate of Village
Kanjhawala, Delhi of the plaintiff, in the
interest of justice & equity, without the
prior permission of the Court of
competent to jurisdiction under law, in
the interest of justice & equity; and
vii) To award Cost of the suit in favour of the
plaintiff and against the defendant no.1.
viii) To grant any other such relief(s), which
this Hon'ble Court may deem fit &
proper in favour of the plaintiff and
against the defendants, keeping in view
the facts & circumstances of the present
case."
2. The suit was dismissed by the Civil Judge vide his judgment and
decree dated 3.05.2007. Appellant filed first appeal against the said
judgment and decree, which was also dismissed by the Additional
District Judge vide impugned order dated 3.11.2009. Raising certain
substantial questions of law, appellant has filed the second appeal
invoking Section 100 of Code of Civil Procedure (CPC).
3. Appellant is stated to be mentally retarded and sought permission to
file the suit through his next friend Smt. Urmila, who happened to be
his sister. Respondent No.1 is the wife of the appellant.
Respondents No. 2 to 4 are the purchasers of the suit land bearing
Khasra No. 97/7 (4-16), 8(4-16), 9(3-16), 98/1 (0-11), 11 (1-01) total
measuring (15-00) situated in the revenue estate of Village
Kanjhawala, Delhi.
4. All substantial questions of law as suggested by the appellant relate
to mental capability of the appellant to execute the impugned Sale
Deed in favour of respondent Nos. 2 to 4.
5. Trial court while dealing with issue No.1 as to whether the appellant
is a person of unsound mind, assessed the evidence adduced on
record by the appellant in the following manner:-
"ISSUE NO.1:- Whether the plaintiff is a person of unsound mind?
OPP.
The onus to prove this issue was on plaintiff. It
has been claimed that plaintiff is a person of
unsound mind, however, deft has denied the
same. Plaintiff has mainly relied on PW5 to
prove the insanity of plaintiff. The said witness
has deposed that he examined plaintiff only
once, however, he claimed that the plaintiff was
suffering from mental retardation and mental
epilepsy though he claimed that he saw plaintiff
only once and he has not carried out any test of
plaintiff to ascertain that fact of retardation and
epilepsy and even no prior medical record of the
plaintiff was there and history of the plaintiff
was only told through attendant of the plaintiff.
In the circumstances, it is clear that the said
witness has not based his opinion of retardation
and epilepsy of the plaintiff through conducting
any test or proper examination and prior
treatment medical record of the plaintiff.
Plaintiff has met him only once and even then
he did not carry out any test to find out the
insanity etc. In the circumstances, the evidence
of the doctor said PW5 with regard to insanity
does not inspire much confidence. Hence, on
basis of the same plaintiff can not be considered
to be an insane person.
When we look to other evidence even as per
PW2 the plaintiff was granted land after
consolidation and thereafter he has been
cultivating the said land. The plaintiff is also
admittedly holder of a joint account with deft
no.1 and it is not case of plaintiff that he was
unable to the said joint bank account due to
insanity. It is strange that plaintiff though
claimed to be an insane person and allegedly
not capable of entering into a contract and he
still had a bank account jointly operated by him
for long time. If the plaintiff was insane as
claimed by his sister then there ought to have
been constant supervision and watch for and
over his acts, however, no such record has been
brought and in fact his sister has admitted that
she never had strained relation with deft no.1,
the wife of the plaintiff and prior to this she has
never acted as guardian of plaintiff in any
matter, transactions or other acts. In the facts
and circumstances of the case, it is clear that the
judgments cited by the plaintiff do not help
them since the facts of the present case are
different and the plaintiff has not been held to
be an insane person. It is clear from the
aforesaid that plaintiff has failed to establish
that Pradeep Kumar is an insane person.
Accordingly, issue no.1 is decided against the
plaintiff and in favour of defts."
6. These findings on facts based on analysis of medical opinion and
other oral evidence adduced on record were confirmed by the
Appellate Court. This question cannot be allowed to be re-agitated
by the appellant in this appeal.
7. Suit of the appellant was dismissed by the trial court on the ground
that the property in suit was sold by appellant to respondent Nos. 2 to
4 by way of a registered Sale Deed before filing of the suit. Court
also observed that the suit was barred under Section 41 (h) of the
Specific Relief Act as another efficacious remedy by way of a
declaration that Sale Deed executed by the appellant in favour of
respondent Nos. 2 to 4 was illegal and void ab initio and therefore,
appellant was not entitled to claim the relief that document executed
by him was not validly executed without the signatures of his next
friend Urmila.
8. All these findings on facts have been affirmed by the appellate Court
in the impugned judgment and decree. Appellate Court also
considered the fact that the property in suit had been sold away by
the appellant in favour of respondents No.2 to 4. It is not in dispute
that appellant has a joint account in the Bank along with respondent
No.1 for a long period. An insane person could not have operated
the joint account independently without any supervision or guidance.
The findings of the courts below are based on appreciation of oral as
well as documentary evidence of the parties and are findings of facts.
9. Under the circumstances, no substantial question of law is involved.
Both the courts below were right in holding that since the property
had been sold away in favour of respondents No.2 to 4 before filing
of the suit and there was no challenge to the legality and validity of
the questioned document, the suit filed by the appellant was not
maintainable.
10. Therefore, no substantial question of law as suggested needs
formulation as they are not questions of law but are only based on
appreciation and re-appreciation of evidence of the parties.
11. Hence, I find no merit in the appeal, the same is accordingly
dismissed.
CM APPL Nos.2276-2279/2010
In view of the dismissal of the appeal, this application has become
infructuous and is accordingly dismissed.
(ARUNA SURESH)
JUDGE
FEBRUARY 05, 2010
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