Satya Prakash Gupta vs Lala Kanshi Ram Gupta And Ors
2019 Latest Caselaw 693 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RFA No. 94/2019 & RFA No. 96/2019
%                                                 4th February, 2019
RFA No. 94/2019

SATYA PRAKASH GUPTA                                     ..... Appellant

                  Through:        Mr. Ajay Kumar, Advocate (Mobile
                                  No. 9810270876).

                         versus

LALA KANSHI RAM GUPTA AND ORS.                       ..... Respondents

                  Through:        Mr. Ravi Gupta, Sr. Advocate with
                                  Mr. Gaurav Kejriwal and Mr. Sujidt
                                  Keshri, Advocates (Mobile No.
                                  9811100909).
                                  Mr. Rohit Gandhi, Advocate for R-9
                                  (A and B).
RFA No. 96/2019

RAGHUBAR DAYAL GARG AND ANR.                         ..... Appellants

                  Through:        Mr. Ajay Kumar, Advocate (Mobile
                                  No. 9810270876).
                         versus

LALA KANSHI RAM GUPTA AND ORS.                       ..... Respondents




RFA No. 94/2019 & RFA No. 96/2019                      page 1 of 24
                    Through:     Mr. Ravi Gupta, Sr. Advocate with
                                Mr. Gaurav Kejriwal and Mr. Sujidt
                                Keshri, Advocates (Mobile No.
                                9811100909).


CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

RFA No. 94/2019

CAVEAT No. 103/2019

1. Since counsel for the caveator(s) has entered appearance, the caveat stands discharged.

C.M. Appl. No. 5064/2019 (for exemption)

2. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

RFA No. 94/2019 and C.M. Appl. No. 5063/2019 (for stay)

3. This Regular First Appeal under Section 96 of the Code

of Civil Procedure 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 24.11.2018 by which

the trial court has dismissed the suit for partition and rendition of

accounts filed by the appellant/plaintiff pleading that the suit

properties which were stated in Annexure-A to the plaint were HUF

RFA No. 94/2019 & RFA No. 96/2019 page 2 of 24 properties and the appellant/plaintiff, being a member of the HUF, has

a share in the HUF properties. The Annexure-A to the plaint reads as

under:

"Details of Properties

01. House No. 25/41, Punjabi Bagh West, New Delhi-110026.

02. House No. N-77, Panchsheel Park, New Delhi-110017

03. M/s Jai Bharat Trading Co., Naya Bazar, Delhi.

04. No. 4018, Naya Bazar, Delhi

05. No. 4028, Naya Bazar, Delhi.

06. House No. 8A, Kamla Nagar, Delhi.

07. Properties of M/s Jai Bharat Trading Co. lying at Mori Gate, Delhi.

08. Goodwill and other assets of M/s Jai Bharat Trading Co., Delhi.

09. Bank Account No. in Oriental Bank of Commerce, Naya Bazar, Delhi

10. Bank Account No. in Punjab National Bank, Kamla Nagar, Delhi

11. Bank Account No. in Central Bank of India, Naya Bazar, Delhi"

4. The case of the appellant/plaintiff was that originally

there was an HUF of Sh. Badloo Ram and his four sons Sh. Lala

Kanshi Ram (appellant‟s/plaintiff‟s father), Sh. Ram Chander Gupta,

Sh. Chattarbhuj Garg and Sh. Rattan Lal Garg. The appellant/plaintiff

pleaded that the larger HUF of Sh. Badloo Ram was partitioned and

this partition was the subject matter of Suit No. 57/43 decided by the

Court of Ld. Senior Sub-Judge, Rohtak on 14.12.1943. It was further

pleaded by the appellant/plaintiff that in the year 1948 each of the four

RFA No. 94/2019 & RFA No. 96/2019 page 3 of 24 sons of Sh. Badloo Ram constituted their smaller HUF's and each of

the sons of Sh. Badloo Ram became Kartas of their smaller HUF's. It

was pleaded that the four sons of Sh. Badloo Ram started a joint

business being a partnership firm in the name of M/s Jai Bharat

Trading Company and the same was an HUF business. This business

was started in the year 1948 and came to an end on account of disputes

between the partners in the year 1979. It was pleaded that all the suit

properties were those which were either inherited by the

appellant‟s/plaintiff‟s father from the larger HUF or were created out

of the funds of the partnership business, and since the partnership

business was an HUF business, therefore, the properties were HUF

properties. It was pleaded that the appellant/plaintiff is entitled to 1/6th

share in the properties. The main property for which the dispute

exists is the property bearing House No. 25/41, Punjabi Bagh West,

New Delhi-110026 (hereinafter 'Punjabi Bagh Property'). This is the

property which is the subject matter of the main dispute, inasmuch as,

the appellant/plaintiff is residing in this property, and with respect to

the same, a suit for mandatory injunction (in effect for possession) was

filed by the father Sh. Kanshi Ram and his two other sons Sh. Jagdish

Rai Aggarwal and Sh. Ved Prakash Gupta, brothers of the

RFA No. 94/2019 & RFA No. 96/2019 page 4 of 24 appellant/plaintiff in this RFA, and the subject suit has been decreed in

favour of the appellant/plaintiff in that suit in terms of a separate

Judgment of the trial court passed on the same date i.e. 24.11.2018 and

against this judgment the connected RFA No. 96/2019 is filed. That

RFA No. 96/2019 is also decided as per the judgment being passed

and set out herein below.

5. The main contesting defendants in the present suit for

partition filed by the appellant/plaintiff were defendant nos. 1 to 4,

namely, the father Sh. Kanshi Ram/defendant no. 1 (since deceased),

Sh. Jagdish Rai Aggarwal/defendant no. 2, Sh. Om Prakash

Gupta/defendant no. 3 and Sh. Ved Prakash Gupta/defendant no. 4.

The case of these contesting defendants was that the suit properties

were not HUF properties. It was pleaded that though no doubt, earlier

there was a larger HUF of Sh. Badloo Ram and his four sons,

however, that HUF came to an end in terms of the Decree passed by a

Senior Sub-Judge, Rohtak on 14.12.1943. It was the case of the

respondent nos. 1 to 4/defendant nos. 1 to 4 that the partnership of M/s

Jai Bharat Trading Company was never an HUF business and this

partnership business was carried out by the sons of Sh. Badloo Ram in

their individual capacities. So far as property bearing House No. N-

RFA No. 94/2019 & RFA No. 96/2019 page 5 of 24 77, Panchsheel Park, New Delhi-110017 is concerned, it was stated

that this property has already been re-entered and taken possession of

by Delhi Development Authority (hereinafter „DDA‟), and this Court

notes that there is no serious dispute in this regard, and as already

stated above, the serious dispute is with respect to property bearing

House No. 25/41, Punjabi Bagh West, New Delhi-110026. As regards

this Punjabi Bagh property, it was stated that this property was

purchased by a Sale Deed dated 22.10.1964 in the names of defendant

no. 1/Sh. Kanshi Ram/father, Sh. Jagdish Rai Aggarwal/defendant no.

2 and Sh. Ved Prakash Gupta/defendant no. 4. Therefore, it was stated

that the Punjabi Bagh property is the one, which is owned by the

father Sh. Kanshi Ram and his two sons Sh. Jagdish Rai Aggarwal and

Sh. Ved Prakash Gupta, being the two brothers of the

appellant/plaintiff. As already stated above, the father Sh. Kanshi

Ram along with Sh. Jagdish Rai Aggarwal and Sh. Ved Prakash Gupta

have filed the connected suit for mandatory injunction for the Punjabi

Bagh Property, and that suit has been decreed by the judgment of the

same date by the same trial court, and that judgment is challenged in

the connected RFA No. 96/2019.

RFA No. 94/2019 & RFA No. 96/2019 page 6 of 24

6. It was also contended by respondent nos. 1 to 4/

defendant nos. 1 to 4 that the appellant/plaintiff had taken his share of

the HUF and had separated from the HUF way back in the year 1956

after the appellant/plaintiff had executed an unregistered Release Deed

dated 31.07.1956. Another son of Sh. Kanshi Ram, Sh. Raghubar

Dayal Garg, had also executed his Release Deed on the same date i.e.

31.07.1956, giving up his rights in the HUF property, and it is noted

that Sh. Raghubar Dayal Garg has supported the appellant/plaintiff in

the suit before the trial court. Therefore, the suit for partition and

rendition of accounts was prayed to be dismissed.

7. The following issues were framed in the suit:

"1. Whether the property No. 25/1, Punjabi Bagh (West) and property No. N-77, Panchshila Park, New Delhi were the properties of smaller HUF of Lala Kanshi Ram Gupta, as alleged in para 12 of the plaint; if so, its effect. OPP.

2. Whether M/s Jai Bharat Trading Company owned and possessed the property as mentioned in para 13 of the plaint; if so, its effect. OPP:

3. Whether the plaintiff is in joint possession of property; if not, whether the suit is properly valued for purposes of Court Fees and jurisdiction. OPP;

4. Whether the plaintiff has 1/6th share in the property shown in Schedule-A to the plaint. OPP;

5. Whether the suit is barred by time. OPD;

6. Whether the plaintiff is entitled to the relief of partition. OPP;

7. Relief."

RFA No. 94/2019 & RFA No. 96/2019 page 7 of 24

8. The first issue which requires examination, and which has

been decided by the trial court under issue nos. 4 & 6, was as to

whether any HUF existed of which the appellant/plaintiff was a

member, and whether the suit properties stated in Annexure-A to the

plaint were HUF properties.

9. On this issue of the existence of the HUF, and whether

the suit properties were HUF properties or not, the trial court has

noted this issue as that requiring determination and is observed in

paras 55 and 56 of the impugned judgment. Along with the issue of

HUF, the trial court has also dealt with the issue whether the

appellant/plaintiff had executed the Release Deed dated 31.07.1956

and had thereby taken his share of HUF and separated from the

family. After setting out the questions which were required to be

answered in para 56 of the impugned judgment, the trial court has

examined these aspects from para 57 of the impugned judgment and

concluded that the appellant/plaintiff has miserably failed to prove the

existence of an HUF or that the said suit properties were HUF

properties. The trial court has noted that the original Release Deed

executed by the appellant/plaintiff dated 31.07.1956 was filed in court,

RFA No. 94/2019 & RFA No. 96/2019 page 8 of 24 and was proved as Ex.PW1/D5 by the evidence led on behalf of the

contesting defendants. The trial court has also held the similar Release

Deed of the same date of 31.07.1956 executed by the other brother Sh.

Raghbar Dayal Garg as Ex.DW1/4 as proved, and this brother had

supported the appellant/plaintiff in the trial court. Further, the trial

court has also held that not a single document has been filed by the

appellant/plaintiff to prove that the HUF ever existed or that the suit

properties were in fact HUF properties i.e. no record, much less any

public record, was filed and proved by the appellant/plaintiff to show

that the suit properties were HUF properties. Th trial court also held

that the partnership business of M/s Jai Bharat Trading Company was

not an HUF business but was a partnership business because this

business was carried on under a partnership deed, and there is no

evidence, whatsoever, filed and proved by the appellant/plaintiff that

the partnership business was in fact an HUF business. The trial court

has also then noted that in the other suit for mandatory injunction

which was decided by separate judgment of the same date, the Will of

the father, Sh. Kanshi Ram, has been proved as Ex.DW1/3

bequeathing his share in the Punjabi Bagh property to Sh. Jagdish Rai

Aggarwal/defendant no. 2 and Ved Prakash Gupta/defendant no. 4.

RFA No. 94/2019 & RFA No. 96/2019 page 9 of 24 The relevant paras of the impugned judgment which deal with the

discussion, reasoning and conclusions are paras 52 to 57, 59, 62 and

67, and these paras read as under:

"52. The case of the plaintiff is squarely based on the premise that late Lala Badloo Ram constituted a bigger HUF along with his sons Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It has been further stated by the plaintiff in the plaint that various properties were purchased by the bigger HUF in Delhi, in UP and in Haryana. The details of the said properties have been given in the plaint. The plaintiff has further stated that mutual partition was carried out by late Sh. Badloo Ram and his four sons and the said partition was also the subject matter of suit bearing no. 57/43 which was decided by the court of Ld. Sr. Sub Judge, Rohtak on 14.12.1943. It has been further stated that in the year 1948, all the abovesaid four sons of Late Lala Badloo Ram constituted four smaller HUF headed by each of the sons and in the year 1948 itself, all the four HUFs joined together and started business in partnership in the name and style of M/s Jai Bharat Trading Company at Naya Bazar, Delhi. It has been further stated that the business of the said partnership firm was infact the HUF business and the plaintiff became a member of the smaller HUF of which Late Lala Kanshi Ram was the Karta. It has been further stated that the assets of M/s Jai Bharat Trading Company have not been divided till date and that the said firm was owning various properties, the details of which have been given in the list of properties annexed with the plaint. The plaintiff has further stated that the property at Punjabi Bagh was purchased in the year 1964 for a sum of Rs. 28,000/- from the joint assets of the plaintiff, the defendants no.1 to 4 and Sh. R. Dayal. It has been further stated that though the sale deed of the said property was executed in the name of the defendants no.1 to 4 and the defendant no.6 but infact, the said property was purchased out of the funds of M/s Jai Bharat Trading Company. It has been further stated that the property at Panchsheel Park, New Delhi was purchased in the year 1966 out of the funds of M/s Jai Bharat Trading Company.

53. The defendants no. 1 to 4 are the main contesting defendants. In the written statement filed by the defendants no.1 to 4, the defendants no.1 to 4 have not denied the relationship of the parties. It has not been denied that the bigger HUF came to an end in the year 1943 but the defendants have categorically denied

RFA No. 94/2019 & RFA No. 96/2019 page 10 of 24 that the business of M/s Jai Bharat Trading Company was the HUF business. It has been squarely claimed by the said defendants that M/s Jai Bharat Trading Company was started as a partnership concern by the defendants no.1, 8 and 9 and the father of the defendants no.5 to 7 in their individual and personal capacity in the year 1949 and not in the year 1948. It has been admitted that the business of the said partnership concern was closed in the year 1979 due to the disputes but it has been stated that the dispute is in between the defendant no.1, the defendant no.8, the defendant no.9 and the defendants no.5 to 7.

54. The Release Deeds dated 31.07.1956 Ex.PW1/D5 and Ex.DW1/4 have been relied upon by the said defendants and it has been argued that the plaintiff cannot claim any share in the properties. The Will dated 12.11.1999 executed by Late Lala Kanshi Ram Ex.DW1/3 has also been relied upon by the defendants no.1 to 4.

55. In the light of the abovesaid pleadings, the respective contentions of the parties and the evidence led by the parties, the vital question to be considered by this court is as to whether the plaintiff has been able to prove that the business of M/s Jai Bharat Trading Company was infact the HUF business of the four smaller HUFs headed by Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg despite the fact that the partnership deed dated 26.08.1950 Ex.DW1/7 on record specifically states that the said firm was constituted as a partnership firm. This court has to further consider and see as to whether the plaintiff has been able to prove that four smaller HUFs were constituted by each of the abovesaid brothers, who later on joined hands to constitute the abovesaid firm M/s. Jai Bharat Trading Company, which was an HUF firm as per the case of the plaintiff. This court has to further consider and to see as to whether the plaintiff has been able to prove the purchasing of the properties by the bigger HUF, by the smaller HUFs and by M/s Jai Bharat Trading Company, the list of which has been annexed by the plaintiff with the plaint.

56. If the plaintiff, in the considered opinion of this court is able to prove the existence of the properties mentioned in the list annexed with the plaint, as HUF properties owned and possessed by M/s Jai Bharat Trading Company, then the plaintiff succeeds, otherwise, the case of the plaintiff is bound to fail. The plaintiff, in order to succeed in the present matter, to my mind, is essentially required to prove that M/s Jai Bharat Trading Company was an HUF firm carrying on the HUF business despite the nomenclature of the said firm as a partnership concern. To

RFA No. 94/2019 & RFA No. 96/2019 page 11 of 24 my mind, the plaintiff is also required to bring home the point that the Will dated 12.11.1999 Ex.DW1/3 on record was not validly executed and that the Release Deeds dated 31.07.1956 Ex.PW1/D5 and Ex.DW1/4 were also not executed. EX.PW1/D5 is the Release Deed allegedly executed by the plaintiff Sh. Satya Prakash Gupta and the Release Deed Ex.DW1/4 has been allegedly executed by Sh. Raghubar Dayal Garg.

57. The settled law is that the plaintiff in a civil suit has to stand upon his own legs and has to prove his own case by way of cogent and reliable evidence. The plaintiff cannot be allowed to take benefit of the lacunae, if any, left by the defendants, in proving their own case. The litmus test, which is applied in civil cases is the test of preponderance of the probabilities.

xxx xxx xxx

59. The material aspects of the testimonies of all the witnesses examined by the parties have already been narrated herein above. If the cross-examination of PW1 is carefully gone through, to my mind, PW1 has categorically admitted that the property situated at Panchsheel Park cannot be partitioned as the possession of the same has already been taken over by the DDA. PW1 has given an evasive reply when he is asked about the appeal which was filed against the judgment and decree dated 26.09.2013 passed in the suit titled as Kanshi Ram and others Vs. Raghubhar Dayal and Another which is a suit for mandatory injunction. PW1 admits that the Release Deed executed by him has not been challenged till date. PW1 has failed to prove on record the filing of any document to show the HUF properties of Late Badloo Ram. PW1 does not remember as to whether Late Badloo Ram had distributed all the properties amongst his sons during his life time. PW1 admits that there were four partners of M/s Jai Bharat Trading Company. PW1 further states that he does not know as to whether there was any HUF of Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. PW1 admits that he has not placed on record any document to show the existence of HUF properties of M/s Jai Bharat Trading Company. PW1 does not remember as to whether the Will of Late Lala Kanshi Ram has been challenged by him or not.

xxx xxx xxx

62. By the cross-examination of PW1 and PW2, to my mind, it can be safely concluded that the plaintiff has utterly failed to prove on record that M/s Jai Bharat Trading Company was constituted as a result of joining the hands together by the four smaller HUFs of

RFA No. 94/2019 & RFA No. 96/2019 page 12 of 24 Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It is true that the existence of the smaller HUF of Lala Kanshi Ram has been admitted by the defendants no.1 to 4 in the written statement but to my mind, the plaintiff has utterly failed to prove the constitution of the HUFs by Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. I have no hesitation to hold that the plaintiff has absolutely failed in proving that M/s Jai Bharat Trading Company business was an HUF business or that HUF funds were invested in the same.

xxx xxx xxx

67. As stated herein above, one more Civil Suit bearing no. 8314/16 titled as Kanshi Ram and others Vs. Raghubar Dayal and other has been instituted. In the abovesaid civil suit, which is a suit for Mandatory Injunction, the validity of the Will Ex.DW1/3 has been upheld by virtue of the judgment, which has been announced in the said civil suit as on date. Accordingly, to my mind, since the validity of the Will dated 12.11.1999 has been upheld in the abovesaid suit, it cannot be said that the Will has not been proved by the defendants. Needless to mention that the said Will is in the favour of Sh. Jagdish Rai Aggarwal and Sh. Ved Prakash Gupta."

(Emphasis Supplied)

10. The only argument urged on behalf of the

appellant/plaintiff before this Court is that the trial court has wrongly

observed and held in para 56 that it was upon the appellant/plaintiff to

prove that the Will dated 12.11.1999/Ex.DW1/3 and that the Release

Deeds dated 31.07.1956/Ex.PW1/D5 and Ex.DW1/4 were not validly

executed. It is argued that since the contesting defendant nos. 1 to 4

had relied upon the Release Deeds and the Will, thus the onus to prove

RFA No. 94/2019 & RFA No. 96/2019 page 13 of 24 these documents was upon the contesting defendant nos. 1 to 4 and not

on the appellant/plaintiff.

11(i). In my opinion, this argument urged on behalf of the

appellant/plaintiff is a myopic reading of the impugned judgment

because para 56 has to be read in the context of the other paras of the

detailed and exhaustive impugned judgment, and these paras of the

impugned judgment, firstly refer to the fact that the Release Deeds

have been proved by the contesting defendants as per the evidence led

by them, and thus duly proving the execution of the Release Deeds.

This aspect of proving of the Release Deeds is referred to in para 34 of

the impugned judgment, and this reads as under:

"34. The defendant has examined Sh. Jagdish Rai Aggarwal as DW1 and in his evidence by way of affidavit Ex.DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant no.1 in the written statement filed by the defendants no.1 to 4. He has filed on record the photocopy of the document bearing diary no. 12838/2008 pertaining to SLP no. 014056/2008 registered on 10.05.2008 and SLP no. 007582/2008 registered on 16.05.2008 as mark X, the copy of judgment/decree dated 26.02.2013 passed in suit no. 294/13/92 passed by the court of Sh. Vishal Singh, the then Ld.

Civil Judge as Ex.DW1/2, the certified copy of the Will exhibited by Sh. Kanshi Ram as Ex.DW1/3. The witness has further relied upon the release deed dated 31.07.1956 which is already there on record in the form of Ex.PW1/D5 and on the said release deed, the witness identified the signatures of Sh. Satya Prakash Gupta at point A encircled in red, the signature of Sh. Kanshi Ram at point encircled in red and the signature of Sh. Ram Chnder Gupta at point C encircled in red. The witness has further relied upon one more release deed dated 31.07.1956 and on the said release deed, the witness identified the signatures of Sh. Raghubar Dayal Garg at point W encircled in red, the signatures of Sh. Kanshi Ram at point X encircled in red and

RFA No. 94/2019 & RFA No. 96/2019 page 14 of 24 the signature of witness Sh. Gagan Nath at point Y encircled in red and the signature of other witness Sh. Ram Chander Gupta at point Z and the same is exhibited as Ex.DW1/4. The witness has further relied upon the written statement filed on record by the defendants no.5 to 7 in the present suit and the same is hereby exhibited as Ex.DW1/5, the copy of the written statement filed by the defendant no. 9 in the present suit as Ex.DW1/6, the original partnership deed as Ex.DW1/7, the certified copy of the suit for mandatory injunction instituted by Lala Kanshi Ram and ors. against Sh. Satya Prakash Gupta and Ors. as Ex.DW1/8."

11(ii). Therefore, the observations of the trial court in para 56 of

the impugned judgment has to be read only as regards the onus having

been shifted upon the appellant/plaintiff to show such evidence that as

to how the trial court should reject the Release Deeds in view of the

fact that the contesting defendant nos. 1 to 4 had proved the Release

Deeds dated 31.07.1956.

12. Also, and as already noted above, on the second aspect of

the Will of Lala Kanshi Ram, the same was the subject of the other

connected suit filed for mandatory injunction, and in that suit for

mandatory injunction, as will be discussed hereinafter, the Will dated

12.11.1999 of Lala Kanshi Ram was proved through the attesting

witness, and accordingly, the trial court has observed in para 56 that

the Will having already been proved, it was then upon the

appellant/plaintiff to show as per the evidence led by him, as to why

the will should not be accepted i.e. the onus had shifted upon him.

RFA No. 94/2019 & RFA No. 96/2019 page 15 of 24

13. Therefore, it is seen that the issue was whether there

existed any HUF, or whether the suit properties were HUF properties,

and in this regard, the trial court has rightly held that mere self-serving

depositions made on behalf of the appellant/plaintiff, without a single

documentary proof, it cannot be held that there existed an HUF of

Lala Kanshi Ram alongwith his sons including the appellant/plaintiff

or that the business of the partnership was not a partnership business

but was allegedly an HUF business. The trial court has also rightly

relied upon the Release Deed executed by the appellant/plaintiff dated

31.07.1956/Ex.PW1/D5 which bore the signatures of the

appellant/plaintiff, and whereby the appellant/plaintiff has taken his

share from the HUF property which fell to the branch of father Lala

Kanshi Ram in terms of the Judgment dated 14.12.1943 of Senior

Sub-Judge Rohtak in Suit No. 57/43, and which denied the partition

suit between Sh. Badloo Ram and his four sons including father of the

appellant/plaintiff, namely Lala Kanshi Ram.

14. In view of the aforesaid discussion, I do not find any

merit in the appeal. Dismissed.

RFA No. 96/2019




RFA No. 94/2019 & RFA No. 96/2019                          page 16 of 24
 CAVEAT No. 104/2019

15. Since counsel for the caveator(s) has entered appearance,

the caveat stands discharged.

C.M. Appl. No. 5074/2019 (for exemption)

16. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

RFA No. 96/2019 and C.M. Appl. No. 5073/2019 (for stay)

17. This Regular First Appeal under Section 96 of the Code

of Civil Procedure 1908 (CPC) is filed defendants in the suit

impugning the Judgment of the trial court dated 24.11.2018 by which

the trial court has decreed the suit for mandatory injunction filed by

the father Lala Kanshi Ram and his two sons, namely Sh. Jagdish Rai

Aggarwal and Sh. Ved Prakash Gupta (the other two brothers of the

two appellants/defendants) and the appellants/defendants have been

directed to hand-over peaceful and vacant possession of the suit

property shown in red colour in the site plan/Ex.PW2/1 comprising of

the basement, mezzanine floor and garage to the respondents/plaintiffs

in House No. 25, Road No. 41, Punjabi Bagh West, Delhi-110026, and

the entire property is constructed on an area of 2209.26 sq. yds.

RFA No. 94/2019 & RFA No. 96/2019 page 17 of 24

18. The case of the respondents/plaintiffs was that they are

the joint owners of the suit property at Punjabi Bagh by virtue of a

registered Sale Deed dated 22.10.1964 and the same is duly registered

with the office of the Sub-Registrar, Delhi. The father, Lala Kanshi

Ram, who was plaintiff no.1, died during the pendency of the suit, and

therefore, there only remained two plaintiffs, namely Sh. Jagdish Rai

Aggarwal and Sh. Ved Prakash Gupta, who also claimed the share of

the father, Lala Kanshi Ram in the suit property in terms of the Will

dated 12.11.1999 executed by the father, Lala Kanshi Ram. It was

pleaded that the appellants/defendants were allowed to live in the suit

property in the year 1971 or 1972 as they were evicted by their

landlord from property in Shakti Nagar, Delhi and thus the

appellants/defendants being family members were allowed to stay in

the suit property. The appellants/defendants, however, started creating

nuisance resulting in straining of relationships. It was also pleaded by

the respondents/plaintiffs that the appellants/defendants abused the

respondents/plaintiffs without any provocation, and all this started in

January, 1992 when the respondents/plaintiff nos. 2 and 3 raised a

wall in the suit property shown in green colour in the site plan. It was

pleaded that appellant no. 1/defendant no. 1/Sh. Raghubar Dayal Garg

RFA No. 94/2019 & RFA No. 96/2019 page 18 of 24 wrongly claimed 1/6th ownership in the suit property and filed a suit

for injunction which was pending before the Court of Sub-Judge,

Delhi. Alleging that the possession of the suit property by the

appellants/defendants was only permissive, hence, the

appellants/defendants were pleaded to be directed by a mandatory

injunction to vacate and hand-over physical possession of the suit

property shown in red colour in the site plan to the

respondents/plaintiffs.

19. The appellants/defendants contested the suit. Written

statements were filed separately, but the defence of both the

appellants/defendants was the same i.e. the suit property is the joint

property of the HUF though the registered Sale Deed dated 22.10.1964

is in the name of the respondents/plaintiffs. It was also pleaded by the

appellant no. 2/defendant no. 2 that the suit is time barred as the

appellant no. 2/defendant no. 2 has become owner by adverse

possession.

20. At this stage, this Court may note that a connected appeal

being RFA No. 94/2019 has already been decided by this Court

hereinabove, and the connected RFA No. 94/2019 has been dismissed

RFA No. 94/2019 & RFA No. 96/2019 page 19 of 24 by holding that there existed no HUF and thus the suit property at

Punjabi Bagh is not an HUF property. The discussion contained in the

abovesaid judgment is not reproduced herein for the sake of brevity

and to avoid repetition.

21. Therefore, the only issue which remains to be decided is

as to whether the father had executed his Will dated 12.11.1999

bequeathing his share in the suit property to the other two plaintiffs,

namely Sh. Jagdish Rai Aggarwal and Sh. Ved Prakash Gupta, the two

brothers of the appellants/defendants i.e. the other two sons of Lala

Kanshi Ram.

22. The following issues were framed in the suit:

"1. Whether the suit is liable to be stayed U/s 10 of the CPC? OPD

2. Whether the suit is barred by time? OPD

3. Whether the plaintiff is entitled to mandatory injunction? OPP

4. Relief."

23. I may note that certain amount of evidence in the subject

suit for mandatory injunction is similar to the evidence which was led

in the suit for partition filed by the appellant no. 2/defendant no. 2 and

pertains to the execution of the Release Deeds dated 31.07.1956 by the

appellants/defendants. Also, I may note that there is other evidence

which is specific to the present suit with respect to the ownership of

RFA No. 94/2019 & RFA No. 96/2019 page 20 of 24 the suit property being of the respondents/plaintiffs, and with respect

to which the House Tax Receipts dated 31.10.2002 and 31.03.2002

were proved as Ex.PW1/6 and Ex.PW1/7 and water consumption bill

dated 16.05.1983 was proved as Ex.PW1/8. As regards proving the

Will dated 12.11.1999, the trial court has observed that the attesting

witness to the Will namely Sh. Dinesh Kumar has deposed as PW-4,

and in para 42 of the impugned judgment, the trial court notes that the

attesting witness PW-4 Sh. Dinesh Kumar has stated that he has

signed the Will dated 12.11.1999, and the testator had also signed the

Will, as also that the other attesting witness, Sh. Vinod, signed the

same in the presence of the testator and the attesting witness Sh.

Dinesh Kumar. The other factual narration with respect to

examination-in-chief and cross-examination of the attesting witness

Sh. Dinesh Kumar is referred to in paras 16 and 17 of the impugned

judgment and these paras read as under:

"16. The plaintiffs have further examined Sh. Dinesh Kumar, an attesting witness to the Will as PW4. This witness has stated that he identifies the signatures of the Executor of the Will, the signatures of Sh. Vinod Kumar Aggarwal and his own signatures on the Will, which has been exhibited as Ex.PW4/4 in his examination-in-chief.

17. In the cross-examination, PW4 states that Lala Kanshi Ram was about 80 to 85 years old at the time of the execution of the Will. PW4 further states that his grandfather and Lala Kanshi Ram were friends for the last more than 50 years. PW4 further states that he was

RFA No. 94/2019 & RFA No. 96/2019 page 21 of 24 called for endorsing upon the Will by Lala Kanshi Ram. PW4 further states that Lala Kanshi Ram was of sound health when he was called. PW4 further states that at the relevant time, when he reached at the residence of Lala Kanshi Ram, apart from him, one Mr. Vinod and Lala Kanshi Ram ji and one or two their family members were present. PW4 further states that his signatures were obtained on the Will at the house of Lala Kanshi Ram. PW4 further states that first of all, he put his signatures on the Will and he had gone through the Will before signing the same. PW4 further states that thereafter Lala Kanshi Ram signed the same. PW4 further states that he met Lala Kanshi Ram at Agarsen hospital before his death. PW4 further states that Mr. Vinod Kumar signed the Will in the last."

24. In my opinion, no fault can be found in the impugned

judgment of the trial court holding that the respondents/plaintiffs are

the owners of the suit property, and in this regard the judgment in the

partition suit has already been upheld by this Court while dismissing

RFA No. 94/2019. The trial court is also completely justified in

holding that the Will dated 12.11.1999 of Lala Kanshi Ram was duly

proved by the attesting witness Sh. Dinesh Kumar, and he stood the

test of cross-examination and that nothing has been elicited in the

cross-examination of the attesting witness, Sh. Dinesh Kumar, to

discard his testimony for rejecting the Will.

25. I may note that though the trial court has referred to the

decision of the judgment dated 09.02.2010 passed by the ld. Single

Judge of this Court in CS(OS) No. 735/2006 in the suit filed by the

RFA No. 94/2019 & RFA No. 96/2019 page 22 of 24 present appellants/defendants against the contesting defendants in

CS(OS) No. 735/2006, and in that suit the present appellants/

defendants had questioned the validity of the Release Deeds dated

31.07.1956 and also the Will of the father dated 12.11.1999, and a ld.

Single Judge dismissed CS(OS) No. 735/2006 filed by the present

appellants/defendants as time barred, however, this dismissal of the

suit as time barred would not operate as res judicata with respect to

the aspects to be decided in these two appeals, inasmuch as, it was not

an issue decided by leading evidence in the said earlier suit CS(OS)

No. 735/2006 that whether the Will of Lala Kanshi Ram dated

12.11.1999 existed or not and whether or not there existed the Release

Deeds dated 31.07.1956. Accordingly, though the trial court has

relied upon this Judgment dated 09.02.1010 dismissing CS(OS) No.

735/2006 as being time barred, and appeal there against has been

dismissed by a Division Bench of this Court, and thereafter by the

Hon'ble Supreme Court vide its Order dated 06.01.2015, in my

opinion nothing will turn upon those judgments in favour of the

contesting respondents/plaintiffs, by also simultaneously noting that

the contesting respondents/plaintiffs have otherwise proved the Will

and the Release Deeds by leading evidence in the suit which is the

RFA No. 94/2019 & RFA No. 96/2019 page 23 of 24 subject matter of the Judgment of the same date 24.11.2018, and RFA

against the same, being RFA No. 94/2019, already stands dismissed

by the judgment of this Court of today‟s date.

26. In view of the aforesaid discussion, there is no merit in

the appeal and the same is hereby dismissed. All pending applications

are also disposed of.

FEBRUARY 04, 2019                           VALMIKI J. MEHTA, J
AK




RFA No. 94/2019 & RFA No. 96/2019                      page 24 of 24