Phool Kanwar vs Ashok Nain & Ors.
2010 Latest Caselaw 312 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment Reserved on: 19.01.2010
%                   Judgment Delivered on: 20.01.2010

+                        CS(OS)2072/2006

       PHOOL KANWAR                              ...........Plaintiff
                               Through:    Mr.Prasoon Kumar &
                                           Mr.    Ravi    Chaudhary,
                                           Advts. for the plaintiff.

                   Versus


       ASHOK NAIN & ORS.                        ..........Defendants
                               Through:    None.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the Digest?
                                                        Yes

INDERMEET KAUR, J.

1. Plaintiff has filed the present suit seeking a declaration that

the (i) Agreement to Sell, General Power of Attorney (GPA), Will,

receipt and affidavit dated 18.10.2004, (ii) Agreement to Sell, GPA,

Will, receipt, affidavit and possession letter dated 4.11.2004 and

(iii) Agreement to Sell, GPA, Will, receipt, affidavit and possession

letter dated 17.11.2004 be declared null and void.

2. The factual matrix of the case is as follows:

(i) Plaintiff is the absolute owner and Bhoomidar of the

agricultural land bearing Khasra No.36/4 (5-2), 7(3-

17), 8(4-12), 9(4-16), 12(3-12), 13 (4-12), 14 (3-8), 17

(3-16) and 9/12(4-16), 13(4-16), 19/1 (2-00) and

24/4/5(1-03) total land measuring about 46 Bighas, 10

Biswas situated in the Revenue Estate of Village Jat

Khore, Delhi. The plaintiff had inherited this property

as an ancestral property.

(ii) Defendant no.1 and defendant no.2 are the neighbours

of the plaintiff. Defendant no.3 is the mother of the

plaintiff.

(iii) Defendant no.1 and 2 in order to grab the property of

the plaintiff convinced defendant no.3 that she would

become the owner of 9 acres of land which had

belonged to her deceased husband. At the behest of

defendant no.1 and 2, defendant no.3 being a illiterate

lady lured by their illegal advances conceded to thumb

impression certain documents for the said purpose

which, in fact, were GPA, Agreement to Sell, Will and

affidavit dated 18.10.2004 purporting to show this

transaction had been executed by the plaintiff in

favour of defendant no.3. The name of the plaintiff had

been mentioned at the place of the thumb impression

put by defendant no.3. The GPA was registered on

1.11.2004 and the other documents i.e. Agreement to

Sell, GPA, Will and receipt were notarized on

29.10.2004.

(iv) Defendant no.1 and 2 on the basis of these forged and

fabricated documents again got another set of

documents prepared from defendant no.3 i.e.

Agreement to Sell, GPA, Will, receipt, affidavit and

possession letter dated 4.11.2004 alluring defendant

no.3 with the impression that by thumb marking these

documents her name would be entered in the relevant

revenue records. These documents are dated

4.11.2004. They were, in fact, sale documents

devolving the rights in the said property in favour of

defendant no.2 by defendant no.3.

(v) Further on 17.11.2004 an Agreement to Sell, GPA,

Will, affidavit and receipt were executed by defendant

no.2 in favour of defendant no.1 making him the owner

of this property. These documents were signed and

attested by the same persons who were party to the

execution of the forged and fabricated documents

dated 4.11.2004.

(vi) Relations of defendant no.3 were estranged with the

plaintiff because of the strain that defendant no.3 had

with the wife of the plaintiff. Plaintiff partially learnt

about this fraud from his mother only after these

documents had been executed. Further defendant

no.3 was under the belief that these documents so

executed by her would have transferred some share of

the property belonging to her husband in her favour.

(vii) Defendant no.1 and 2 filed a civil suit for declaration

and permanent injunction to obtain a stamp of the

court of law to cover up their misdeeds and to make

them legal; defendant no.2 and 3 and the plaintiff were

also arrayed as parties. It was only on the receipt of

the summons from the said court that the plaintiff

came to know about the fraud and forgery committed

by the defendants.

(viii) Plaintiff filed a criminal complaint against the

defendants which was registered as FIR no.5/2005

under Section 420/467/468/471/34 of the IPC against

the said defendants.

3. Plaintiff has accordingly prayed that the aforesaid

documents i.e. the documents dated 18.10.2004 and the

subsequent documents dated 4.11.2004 and 17.11.2004 whereby

the ownership of this disputed property allegedly stood transferred

from the plaintiff to defendant no.3, thereupon to defendant no.2

and then to defendant no.1 all documents being forged and

fabricated be declared null and void.

4. Defendants had been served and Mr.Sumit Chaudhury,

Advocate had put in appearance on behalf of defendant no.1 and 2

as also for defendant no.3. In spite of opportunity having been

granted to file written statement, the same was not filed. On

18.7.2008, opportunity to file written statement stood closed.

None was appearing for the defendants. Matter was fixed for

evidence of the plaintiff which he had filed by way of affidavit.

5. Plaintiff Phool Kunwar had appeared in the witness box as

PW-1 and his ex-parte evidence was recorded. He has reiterated

all the averments made on oath in court and has proved the

relevant documents. The ownership of the disputed property i.e.

Khatoni Consolidation and Khasra Girdawari along with true

English translation is Ex.PW-1/A. GPA, Agreement to Sell and

receipt dated 18.10.2004 i.e. the purported transaction between

the plaintiff and defendant no.3 is Ex.PW-1/B. The copies of the

Agreement to Sell, GPA, Will, receipt, affidavit and possession

letter dated 4.11.2004, the purported sale document devolving the

rights in the property in favour of defendant no.2 are Ex.PW-1/C.

The copies of the Agreement to Sell, GPA, Will, receipt and

affidavit dated 17.11.2004 executed by defendant no.2 in favour of

defendant no.1 purportedly making him the owner of the property

are Ex.PW-1/D. Copy of the civil suit filed by defendant no.1 has

been proved as Ex.PW-1/E. The copy of the FIR initiated on the

complaint of the plaintiff has been proved as Ex.PW1/F.

6. There is no opposition to the prayers made in the present

plaint. The suit has been properly valued for the purposes of

pecuniary jurisdiction. It is within limitation. There is no

impediment legal or otherwise in the grant of the prayers sought

for by the plaintiff. He is entitled to the relief claimed by him.

7. Accordingly, (i) Agreement to Sell, GPA, Will, receipt and

affidavit dated 18.10.2004, (ii) Agreement to Sell, GPA, Will,

receipt, affidavit and possession letter dated 4.11.2004 and

(iii) Agreement to Sell, GPA, Will, receipt, affidavit and possession

letter dated 17.11.2004 are declared null and void. No orders as

to costs. Decree shall be drawn.

File be consigned to record room.

(INDERMEET KAUR) JUDGE JANUARY 20, 2010.

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