Pradeep Kumar Sharma & Anr. vs Smt. Shanta Sharma @ Shanti & Ors
2013 Latest Caselaw 327 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 22nd January, 2013

+                      CS(OS) No.1920/2011
                                 &
IA No.20633/2012 (of the defendants no. 1 to 3 under Order 9 R-7 and
Order 8 of the CPC) & IA No.20634/2012 (of the defendant no.1 u/O7
R-11 of the CPC).

       PRADEEP KUMAR SHARMA & ANR.            ..... Plaintiffs
                  Through: Mr. V.K. Malik, Adv. with Mr. Rahul
                           Raj Malik & Mr. Rajeev Chauhan,
                           Advs.

                                   Versus

    SMT. SHANTA SHARMA @ SHANTI & ORS. ..... Respondents

Through: Mr. Raj Bahadur Singh, Adv. for D-1 to 3.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This suit was filed seeking i) declaration that the plaintiff No.2 Sh.

Devi Singh Sharma is the recorded owner of the agricultural land comprising

Khasra Nos.218 (2-17), 197 (2-19), 197/2 (1-8), 198 (1-2), ad-measuring 8

Bighas and 6 Biswas situated at village Asola, Fatehpur, New Delhi; ii)

cancellation of the documents dated 05.05.2011 executed with respect to the

said land; iii) permanent injunction restraining the defendants from creating

any third party rights with respect to the said land or from raising any

construction thereon or changing user thereof; and for iv) recovery of

possession of the said land. The suit was filed by the plaintiff No.1 as next

friend of the plaintiff No.2 on the ground that the plaintiff No.2 was old and

suffering from partial dementia.

2. The case set out in the plaint was that the defendant No.6 Sh. Talim

Khan who was the Chowkidar employed for safeguarding the said land and

the room constructed thereon, filed a suit for injunction in the Court of the

Civil Judge, Saket Court and in which suit the defendant No.1 who is the

wife of the plaintiff No.2 and the mother of the plaintiff No.1 and defendants

No.2 to 4, appeared and made a statement and on the basis of which, forcible

dispossession of the defendant No.6 from the said land was stayed. It is

further the case in the plaint that the defendant No.1 in the said suit

represented herself to be competent to act on behalf of the plaintiff No.2 and

reported settlement with the defendant No.6 and sale of the land to the

defendant No.5 Smt. Satpal Tanwar, as per compromise recorded on

05.05.2011. The plaintiff No.1 pleads that the defendant No.1 did so under

the influence of his siblings i.e. defendants No.2 to 4.

3. Summons of the suit and notices of the applications including for

interim relief were issued though no interim relief granted. Mr. Vinod

Kumar, Advocate appeared on behalf of the defendants on 15.11.2011 and

time was granted to file the Vakalatnama and the written statement. The

said advocate also gave an undertaking, on instructions from the defendants,

that the defendants will not create any third party interest in the said land.

However the written statement was not filed and again time was sought by

the same advocate on 06.01.2012. On the following dates i.e. 27.03.2012

and 30.04.2012, Mr. Gagan Kumar, proxy counsel for Mr. R.B. Singh,

Advocate appeared and again sought time for filing the written statement.

Thereafter none appeared for the defendants on 04.05.2012, when the

defendants were proceeded against ex parte, and the plaintiffs were directed

to lead ex parte evidence and the interim order dated 15.11.2011 was made

absolute. Though, Mr. Vinod Kumar, Advocate for the defendants again

appeared on 22.08.2012 and stated that he would be moving an application

for setting aside of the ex parte order but no such application was filed. The

plaintiffs led their ex parte evidence on 20.09.2012 and closed their ex parte

evidence on 01.10.2012.

4. IA No.20633/2012 was filed on 19.10.2012 under Order 9 Rule 7 and

Order 8 of the CPC. Though affidavit in support thereof has been affirmed

on 02.11.2012. Though this application is titled as on behalf of defendants

no. 1 to 5 but the counsel who has made this application states that it is on

behalf of defendants no. 1 to 3 only. It is stated in the application that the

defendants no.1 to 3 had engaged Mr. Raj Bahadur Singh, Advocate but the

said Advocate owing to his hospitalization could not attend the Court and his

associate lawyer appeared before the Joint Registrar on 4 th May, 2012 and

communicated the next date as of 22nd August, 2012 to him. Recall of the

order dated 4th May, 2012 is sought on the ground of ill health of Mr. Raj

Bahadur Singh, Advocate.

5. Though the application aforesaid is filed beyond the prescribed period

of limitation, it is not accompanied with any application for condonation of

delay in filing the same. There is no prayer in the application also for

condonation of delay in filing the application.

6. As far as the ground of ill health of the Advocate is concerned, the

documents filed along with the application show the Advocate to have been

admitted to the hospital on 13th February, 2012 and discharged on 15th

February, 2012 and suffering from moderate to high grade fever with chills.

Thereafter the investigation reports are of 19th April, 2012 and 6th May,

2012. There is nothing to show that the Advocate was bedridden or was not

attending the Courts.

7. No case for setting aside of the ex parte is thus made out, more so, in

view of what is recorded hereinabove. The application is dismissed.

8. IA No.20634/2012 has been filed by the defendant No.1 under Order

7 Rule 11 of the CPC.

9. Though the defendant no.1 is ex parte and her application for setting

aside of the ex parte has also been dismissed, the counsel has been heard on

the said application.

10. The defendant no.1 seeks rejection of the plaint on the grounds:-

(i). that the land aforesaid is governed by the provisions of Delhi

Land Reforms Act, 1954 and this Court would have no

jurisdiction to try the suit with respect thereto;

(ii). that the plaintiff no.2 is suffering from memory loss and unable

to take any decision or look after himself;

(iii). that a petition for appointment of a guardian of the plaintiff

no.2 is pending consideration before the Addl. District Judge

(South), New Delhi;

(iv). that the plaintiff no.1 has been residing separately from the

plaintiff no.2 since the year 2002 and has not been taking care

of the plaintiff no.2 and has filed the suit merely to grab the

property of the plaintiff no.2;

(v). that the suit is not properly valued for the purposes of court fees

and jurisdiction.

11. Both the counsels inform that the plaintiff No.2 Sh. Devi Singh

Sharma has died on 19th January, 2013. It is further informed that the

plaintiff no.2 has left the defendant no.1 as his wife, the plaintiff no.1 and

the defendants no.2&3 as his sons and the defendant no.4 as his daughter, as

his only legal heirs and representatives.

12. The counsel for the plaintiff contends that since all the legal heirs are

already on record, there is no need to make a formal application for

substitution of the legal representatives of the plaintiff no.2. Oral prayer is

made for taking on record the factum of the demise of plaintiff no.2.

13. The counsel for the defendants no.1 to 3 has no objection.

14. In view of the aforesaid, the factum of the demise of plaintiff no.2 is

taken on record and he is formally ordered to be substituted by the plaintiff

no.1 and the defendants no.1 to 4 who are already on record.

15. None has been appearing for the defendants No.4 to 6 who were

proceeded against ex parte as aforesaid on 04.05.2012.

16. Coming back to the application of the defendant No.1 under Order 7

Rule 11 of the CPC, the counsel for the plaintiff also does not controvert that

the subject land is governed by the provisions of the Delhi Land Reforms

Act, 1954. He however contends that the Delhi Land Reforms Act bars the

jurisdiction of the Civil Court, as this Bench is exercising, only qua the relief

claimed in the plaint of declaration (which is inter alia a claim for

declaration of bhumidari rights) and for the relief of possession. He states

that insofar as the relief of declaration is concerned, he has already on

16.11.2012, on the basis of the statement of the counsel for the defendants

No.1 to 3 that the plaintiff No.2 till then was the recorded owner of the land

in question, given up the said relief. He further states that if the need for

recovering possession arises, the plaintiff will institute appropriate

proceedings before the Revenue Court under the provisions of the Delhi

Land Reforms Act and the plaintiff as such does not press the relief of

possession also.

17. The remaining reliefs of the plaintiff are for cancellation of documents

dated 05.05.2011 and for permanent injunction restraining the other

defendants from alienating, encumbering or parting with possession of the

land or raising construction thereon or changing the user thereof. The said

reliefs are admittedly not within the purview of the Revenue Courts under

the Delhi Land Reforms Act. The plaint for the said reliefs thus cannot be

rejected on the ground of the Delhi Land Reforms Act.

18. As far as the other grounds urged for rejection of the plaint are

concerned, they do not fall within the purview of Order 7 Rule 11 of the

CPC. The defendants being ex parte are not entitled to contest the valuation

given by the plaintiff in the plaint.

19. IA No.20634/2012 (under Order 7 Rule 11 of the CPC) is accordingly

disposed of.

20. Though the plaintiff has sought the relief of cancellation of documents

dated 05.05.2011 but the counsel for the plaintiff is unable to show the

documents of which cancellation is sought and / or vide which the subject

land may have been dealt with. The counsel for the defendants No.1 to 3

also states that there are no such documents. The plaintiff in his ex parte

evidence also has not been able to prove the documents of which

cancellation is sought.

21. In the absence of the plaintiff showing any documents, the relief of

cancellation whereof is sought in the plaint, no such relief can be granted to

the plaintiff. The counsel for the plaintiff also states that since the land in

the revenue records remains in the name of the deceased plaintiff No.2 as

affirmed by the defendants No.1 to 3 also, there does not appear to be any

such documents. The said relief is accordingly denied.

22. The only surviving relief is of injunction. The counsel for the

defendants No.1 to 3 states that the defendants have no objection to all the

legal heirs of the deceased plaintiff No.2 being injuncted from dealing in any

manner with the property till the partition and / or settlement one way or the

other, of the said land. The counsel for the plaintiff has no objections.

23. Insofar as the relief of injunction against defendants No.4 to 6 is

concerned, it is the unrebutted ex parte evidence of the plaintiff Mr. Pradeep

Kumar Sharma that the deceased plaintiff No.2 was the owner of the land

and was suffering from dementia and no one had been appointed his

guardian till his demise on 19.01.2013 and none as such was entitled to sell

the subject land. Though no documents of transfer of any rights in the land

in favour of the defendant No.5 have come on record, but it was recorded in

the compromise in the suit before the Civil Judge that the defendant No.1

had sold the land to the defendant No.6. Such sale cannot be legal, as the

defendant No.1 or any other defendants had no right to deal with the land of

the deceased plaintiff No.2. The plaintiff has thus become entitled to the

relief of injunction against defendants No.4 to 6 also.

24. The suit is thus partly decreed, injuncting the plaintiff as well as the

defendants No.1 to 4 from alienating, encumbering or parting with the land

aforesaid and / or for raising any construction thereon and / or for changing

the user thereof till partition of the said land between the plaintiff and the

defendants No.1 to 4. The defendants No.5 and 6 are also injuncted from

alienating, encumbering or parting with possession of the said land and / or

for raising any construction thereon or from changing the user thereof.

25     Decree sheet be drawn up.

       No costs.




                                               RAJIV SAHAI ENDLAW, J
JANUARY 22, 2013
'gsr/pp'