Amarpal Singh vs Mahender Singh & Ors.

This application was filed with the suit for seeking exemption from serving an advance copy on the defendants. The defendant nos. 1-3, 5 and 6 have since entered appearance and filed their written statement, the relief sought in the application has become infructuous.

Accordingly, the present application is dismissed as infructuous.

This is an application filed by the plaintiff seeking an ex-parte interim restraint against the defendants from raising any construction or creating any third-party interest in Plot No. 58, Block-B, Pocket 4, Section 23, Dwarka, Delhi admeasuring 209 sq. mts. (‘suit property’) until the present suit is adjudicated.

Learned counsel for the plaintiff states that the suit property was allotted to late Smt. Laxmi Devi vide perpetual lease deed dated 11.12.2014. He states that the suit property was converted to a freehold land and conveyed vide conveyance deed dated 09.03.2015. She states that Smt. Laxmi Devi passed away on 14.03.2016.

She states that late Smt. Laxmi Devi during her lifetime executed a registered Will dated 27.01.2004 by the virtue of which she had bequeathed the suit property in the favour of her four sons, i.e. the plaintiff and Defendant No(s). 1-3, however, the said fact was not known to the plaintiff until the plaintiff was served with the written statement of defendant nos. 1-3 and 5 in the civil suit bearing no. CS SCJ 1155 of 2021 filed by the Plaintiff herein before the District Court Dwarka seeking the relief of partition, declaration, and permanent injunction, which was withdrawn on 06.02.2023 with liberty to approach this Court.

She states that by the virtue of the Will dated 27.01.2004 the Plaintiff is entitled to 1/4^th share of the suit property, however, the plaintiff was misled into executing the relinquishment deed dated 27.05.2016 in favour of defendant no. 2. She states that the plaintiff was led to believe that he was executing a power of attorney in favour of defendant no. 2 for mutation of the suit property in the names of plaintiff and defendant nos. 1-5. She states that the plaintiff learnt about the existence of the relinquishment deed dated 27.05.2016 in the year 2022, when he was served with the written statement of defendant nos. 1-3 and 5 in the abovementioned civil suit. She states that the plaintiff is barely educated till Class 10 and suffers from poor health. She states that the plaintiff was the youngest sibling and has been mislead by defendant no. 2 into executing the relinquishment deed dated 27.05.2016.

She states that the suit property has been sold by defendant nos. 1-3 for valuable consideration to defendant no. 6, the brother-in-law of plaintiff and defendant nos. 1-3 vide sale deed dated 15.07.2021 to defeat the rights of the plaintiff herein.

In reply, learned counsel for the defendant nos. 1-3, 5 and 6 (‘contesting defendants’) states that the present suit filed in the year 2023 seeking declaration that the relinquishment deed dated 27.05.2016 as null and void is barred by limitation.

He states that the defendant no. 1 has failed to disclose in the plaint that after executing the relinquishment deed on 27.05.2016, he also executed a rectification deed on 21.06.2016 to change the name of the Defendant No. 2 from Sh. Sri Bhagwan to Sh. Shri Bhagwan. He states that the plaintiff, who is a property dealer by profession is well-versed with the procedure of appearing before the office of the Sub-Registrar and execution of the registered documents for the transfer of title in immovable properties. He states that the plaintiff executed the said documents after fully understanding the import of the relinquishment.

He states that plaintiff also executed a registered relinquishment deed dated 06.10.2020 with respect to his share in land forming part of khasra no. 227 (4-16), 228 (3-14), 229 (5- 16), 230 (2-05), situated in the village Punjab Khor, Delhi in the favour of defendant nos. 2 and 3. He states that no challenge has been raised to the said relinquishment deed till date.

He states that the relinquishment deed dated 27.05.2016 with respect to the suit property and relinquishment deed dated 06.10.2020 with respect to property situated in the village Punjab Khor was executed by the plaintiff in furtherance of a family settlement between the parties, wherein the different properties were allocated to each family member.

He states that though the plaintiff admits knowledge of the sale deed dated 15.07.2021 in favour of defendant no. 6, no challenge to the said sale deed has been made in the plaint. He states that in the absence of any challenge to the sale deed, the suit itself is not maintainable. He states that since the suit property is a plot of land and the possession of the same was handed over to defendant no. 6 upon execution of the abovementioned sale deed, therefore, the plaintiff is neither in actual nor in constructive possession of the suit property and was therefore obliged to pay ad-valorem Court fees. He states that no Court fees has been paid by the plaintiff and on this ground additionally, the plaint ought to be rejected.

This Court has heard the submissions of the parties and perused the record.

It is a matter of record that plaintiff herein executed a registered relinquishment deed dated 27.05.2016 with respect to the suit property releasing his 1/4^th undivided share in favour of defendant no. 2.

The defendant nos. 1-3 and 5 in the written statement have disclosed that plaintiff also executed a registered rectification deed dated 21.06.2016 to correct the name of defendant no. 2 in the relinquishment deed dated 27.05.2016. However, the plaintiff in the plaint has not disclosed the fact of the execution of the rectification deed and has not challenged the said rectification.

The contesting defendants have also disclosed that the plaintiff herein also executed a registered relinquishment deed dated 06.10.2020 with respect to his share in respect of land situated in village Punjab Khor, Delhi. The execution of the said relinquishment deed has also not been disclosed by the plaintiff in the plaint.

The relinquishment deed qua the suit property though executed by the plaintiff himself in the year 2016 has been sought to be challenged in the year 2023 on the bald averment that the plaintiff was unaware about the fact that he has executed the relinquishment deed prior to 2022 and only learnt about the same upon being served with the written statement in civil suit no. 1155/2021 filed before the District Court, Dwarka. The said explanation of the plaintiff is incredulous and this Court is unable to accept the said submission. Section 3 of the Transfer of Property Act, 1882 categorically states that a person is said to have a notice of a fact, when he actually knows that fact or when, but for wilful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it. Therefore, there is a presumption in law that the plaintiff herein had actual knowledge of the contents of the relinquishment deed dated 27.05.2016 executed by him. This presumption is not rebuttable as it attributes actual knowledge to the plaintiff.

In these facts, the seven years delay of the plaintiff in filing the present suit for challenging the relinquishment deed is fatal and gives credence to the claim of the contesting defendants that the relief of declaration qua the relinquishment deed dated 27.05.2016 is barred by limitation.

In addition, this Court is guided by the settled legal principle that there is a presumption under the law that a registered document such as the relinquishment dated 27.05.2016 has been validly executed and the same cannot be discarded or disregarded lightly and in a cursory manner as observed by the Supreme Court in the case of Prem Singh & Ors. v. Birbal & Ors.^{11.(2006) 5 SCC 353} the relevant portion of the said judgement is extracted below :-

(Emphasis supplied)

The aforesaid statement of law was reiterated by the Supreme Court in the case of Rattan Singh v. Nirmal Gill^{22.(2021) 15 SCC 300}, the allegations of absence of free consent in the plaint are unpersuasive and this Court is not persuaded to hold that the relinquishment deed is not binding on the plaintiff.

The non-disclosure of the subsequent registered rectification deed dated 21.06.2016 with respect to the suit property and non-disclosure of the relinquishment deed dated 06.10.2020 with respect to property at village Punjab Khor, Delhi are also indicative of the fact that the challenge in the present suit is not bona fide and is an afterthought.

The suit property is a plot of land with a minimum construction of a single room. It is a trite law that possession of the vacant land follows title and in this regard it would be relevant to refer the judgment of Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs. and Ors.^{33.(2008) 5 SCR 331} wherein the Supreme Court observed that if two persons claim to be in possession of a vacant land, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. Therefore, in the facts of the present case, the sale deed has been executed in favour of defendant no. 6 on 15.07.2021 and, therefore, the possession of suit property vests with defendant no. 6 and the assertion of the plaintiff that he is in actual physical possession of the suit property is neither correct in fact nor in law. It, therefore appears that the plaint contains incorrect and unfounded facts. The said incorrect facts have been pleaded ostensibly to avoid payment of ad-valorem Court fees for the relief of possession; however, since admittedly, the possession vests with defendant no. 6, the plaintiff ought to have prayed for relief of possession and paid ad-valorem Court fees as provided under Section 7 (iv) (c) of the Court Fees Act, 1870. In this regard, it would be apposite to refer to judgment of Supreme Court in Suhrid Singh v. Randhir Singh and Ors.^{44.(2010) 12 SCC 112 at para 7}

The counsel for the plaintiff during the course of the arguments fairly conceded that the plaintiff is not in actual physical possession of the suit property.

This Court also finds merit in the submission of the contesting defendants that plaintiff ought to have sought a specific relief of recovery of possession from defendant no. 6. There exists a sale deed dated 15.07.2021, executed by defendant nos. 1-3 in favour of defendant no. 6. The plaintiff despite admitting to the existence of the sale deed 15.07.2021 in the plaint has failed to seek any relief for possession.

In the aforesaid facts, this Court is of the considered opinion that the plaintiff has failed to make out prima facie case in his favour. The plaintiff having slept over the matter for over seven years has failed to make out any balance of convenience in his favour. On the other hand, defendant no. 6 has purchased the suit property for valuable consideration from defendant nos. 1-3, who ex-facie held a valid title to the suit property as on 15.07.2021. Since the suit property already stands sold for valuable consideration in the year 2021, the claim, if any, of the plaintiff would be limited for his alleged 1/4^th share in the sale consideration received by defendant nos. 1-3 from defendant no. 6.

For all the aforesaid reasons, the present application is without any merits and is hereby dismissed.

List before Court for further proceedings on 09.01.2025