Rajbir Singh & Ors. vs Vijay Singh
2014 Latest Caselaw 6456 Del

$~17
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Pronounced on : 4th December, 2014
+      CS(OS) 2265/2012
       RAJBIR SINGH & ORS.                                       ..... Plaintiffs
                          Through      Mr. Prem Kishore Tripathi, Advocate
                                       & Mr. K.K. Sinha, Advocate

                          versus

       VIJAY SINGH                                       ..... Defendant
                          Through      Ms. Gita Dhingra, Advocate
%
       CORAM:
       HON'BLE MR. JUSTICE G.P. MITTAL

G.P. Mittal, J. (Oral)

CS(OS) 2265/2012 & I.A.13627/2012(O.XXXIX Rules 1&2 CPC)

1. By virtue of this application under Order XXXIX Rules 1and 2 CPC,

the Plaintiffs seek an ad interim injunction restraining Defendant

Vijay Singh from selling, alienating or parting with possession of the

suit property i.e. 1/3rd undivided share of deceased Bishan Singh in the

joint holding i.e. agricultural land and residential houses upon gher

and plots situated within the revenue estate of Village Goela Khurd

and Kutabapur, New Delhi till the decision of the suit.

2. This suit for declaration and permanent injunction has been filed by

the Plaintiffs who are the sons and grand-son of Kushi Ram, brother of

Late Shri Bishan Singh and Chander Bhan and son of Late Shri

Prabhu Dayal. The sum and substance of the averments made in the

suit is that Late Prabhu Dayal, grand-father of Plaintiffs no.1 and 3

and great grand-father of Plaintiff no.2 was the owner of certain

residential as well as agricultural land in the revenue estate of Village

Goela Khurd and Kutabapur, New Delhi (the details of the land have

not been mentioned in the suit). It is averred that at the time of death,

Shri Prabhu Dayal, father of Plaintiff no.1 and grandfather of Plaintiffs

no.2 and 3 was having 1/3rd undivided share in the earlier stated

ancestral properties. The Plaintiffs and the Defendant have been

cultivating the agricultural land jointly as per their convenience. It is

averred that the Defendant (Vijay Singh), claiming himself to be son

of deceased Bishan Singh applied to the Tehsildar for mutation of

1/3rd of the properties owned by Bishan Singh in his favour. The

Plaintiffs' grievance is that Vijay Singh is the son of Chander Bhan

and therefore, he is not entitled to succeed to the share left by Late

Shri Bishan Singh. It is urged that a Will dated 22.06.1989

propounded by the Defendant is not the genuine Will of deceased

Bishan Singh and therefore, the Will ought to be declared null and

void. Apart from this, the Plaintiffs also seek relief of permanent

injunction restraining the Defendant from selling, alienating or parting

with possession of 1/3rd undivided share belonging to Late Shri Bishan

Singh.

3. The Defendant filed the written statement and reply to the injunction

application contesting the suit and the injunction application. The

case set up by the Defendant is that he was adopted by Late Shri

Bishan Singh when he was just 4-5 years old. The Will dated

22.06.1989 is the genuine Will executed by Late Shri Bishan Singh

which was duly registered with the Sub-Registrar. It is urged that the

Defendant was otherwise also the legal heir of deceased Bishan Singh

and was entitled to succeed to the estate being the only son of

deceased Bishan Singh.

4. During the course of the arguments, the learned counsel for the

Defendant has pointed out to host of documents to show that the

Defendant is the son of Late Shri Bishan Singh of course by adoption.

5. First of all, I may refer to the marksheet which was proved

Ex.PW1/D-7 before the learned Civil Judge while this suit was

pending before that court. The Defendant passed his Higher

Secondary Examination from Government High School, Mundka,

Delhi in the year 1976. Father's name of the Defendant is mentioned

as Bishan Singh. Bishan Singh expired in the year 2009 and 33 years

before his death, there could not have been any controversy with

regard to the adoption of the Defendant Vijay Singh. Defendant has

also placed on record Voter Identity Card issued by Election

Commission of India and medical prescription card issued by the then

Delhi Electricity Supply Undertaking( on 28.09.1985) wherein Bishan

Singh has been shown as one of the dependents being father of the

Defendant. There is also a National Trade Certificate issued on

17.07.1982. There are photocopies of Motor Driving Licence, Ration

Card and electoral roll issued by the Election Commission which also

show that the Defendant is the son of Late Shri Bishan Singh. Not

only this, the learned counsel for the Defendant has also referred to the

cross-examination of PW-1 wherein he has admitted that the certified

copy of the Will Ex.PW-1/D5 is genuine and correct. Plaintiff Rajbir

Singh in his cross-examination further admitted that he did not have

any document to show that after the age of five years, father of

Defendant Vijay Singh was shown as Chander Bhan at any point of

time.

6. The Will which is sought to be declared null and void is a registered

Will. The Defendant being the natural heir, it is quite difficult to

suspect that Late Shri Bishan Singh would not have executed the Will

in his favour. All the more, even as per the natural succession,

Defendant being the son of Late Shri Bishan Singh was entitled to

succeed to his estate.

7. The learned counsel for the Plaintiffs has referred to an Affidavit

purported to have been filed on 10.08.2009 before the revenue

authorities by the Defendant for carrying out mutation in his name.

The learned counsel for the Plaintiffs urges that the Defendant is

completely silent about the Will in question in this Affidavit. That, to

my mind, is not very material in view of the fact that the Defendant

might not have been aware of the Will just after 10-12 days of the

death of his father. Otherwise also, on the basis of the documents

placed on record, the Defendant appears to be the Class I heir of

deceased Bishan Singh.

8. In view of this, the Plaintiffs have no prima facie case in their favour.

There is no question of considering the balance of convenience.

9. Application is devoid of any merit; the same is accordingly dismissed.

CS(OS) 2265/2012

List for settlement of issues on 07.05.2015.

G.P. MITTAL, J.

DECEMBER 04, 2014 pst