RSA No.3474 of 2008 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3474 of 2008
Date of Decision: 7.11.2008
Shyam Kumar and others
..Appellants.
Vs.
Smt.Chandrakalan and others
..Respondents.
CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.P.R.Yadav, Advocate for the appellants.
***
Rakesh Kumar Jain, J.
This is an appeal by the plaintiffs against the judgment and
decree of both the Courts below whereby their suit for declaration,
mandatory injunction and permanent injunction has been dismissed.
The plaintiffs have alleged that they are the sons of defendant
No.1, who is the only daughter of Late Munshi Ram. It is further alleged
that defendants No.1 and 2 were having common ancestor namely Shadi
Lal, who was having two sons namely Hazari Lal and Munshi Ram. Hazari
Lal was having a son namely Roshan Lal alongwith other children and
Munshi Ram was having only one daughter namely Smt.Chandra Kalan
(defendant No.1). Now Shadi Lal and Munshi Ram are no more in this
world. The common ancestor Shadi Lal was having immovable property in
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Khewat Khata Nos.220, 251 and 252 in Khasra Nos.63, 88, 470, 557 and
913. Defendant No.1 became absolute owner in possession of a share
equivalent to 4/27 in the property of her father Munshi Ram. It is alleged by
the plaintiffs that defendant No.1 was staying with them and she was being
looked after very well. But in the month of November 2005, defendant No.2
and his brother namely Gajraj came to defendant No.1 at Delhi at the
address of plaintiffs and informed that Hazari Lal is not keeping well and
wanted to see her. Defendant No.1 went with defendant No.2 and said
Gajraj in order to enquire about the welfare of said Hazari Lal and it was
assured by defendant No.2 and his brother Gajraj that defendant No.1 will
come back after 2-3 days but even after a week, defendant No.1 did not
return, therefore, plaintiff No.3 went to bring defendant No.1 to village Tikli
but defendant No.2 and his brother Gajraj asked plaintiff No.3 to allow
defendant No.1 to stay there for few more days and likewise in spite of
repeated visits by the plaintiffs to bring defendant No.1, defendant No.2
kept on postponing the return and thus almost three months’ time had
expired. On 31.3.2006, plaintiff No.3 again went to bring defendant No.1 at
village Tikli but he was surprised to found that defendant No.1 left the
house in morning. He was further informed that defendant No.1 has
transferred the land which she was owning, in the name of Hazari Lal and
his son about two and half months back. When defendant No.1 did not reach
to her house, the plaintiffs suspected some foul play and danger to the life of
their mother at the hands of defendant No.2 and his accomplices and in
those circumstances plaintiff No.1 submitted a complaint to the in-charge
police post Badshahpur Gurgaon. Plaintiffs made search for their mother
and because of the pressure of police, defendant No.1 was produced in
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police post Badshahpur by defendant No.2 and his accomplices. It is further
alleged that defendant No.1 was in custody and effective control of
defendant No.2 and because of undue influence, coercion and force,
defendant No.1 expressed her intention to reside with defendant No.2 and
not with relatives. The plaintiffs were suspecting foul play at the hands of
defendant No.2 and his family members and accordingly after enquiry, they
found that the immovable property of defendant No.1 was got transferred by
defendant No.2 in his name by way of a release deed dated 12.1.2006 duly
registered with the office of defendant No.3. After obtaining certified copy
of the release deed, the plaintiffs came to know that the release deed was
allegedly executed by defendant No.1 in favour of defendant No.2 and
Amar Singh and Ram Kishan were shown to be witnesses to the said release
deed. The release deed dated 12.1.2006 was registered with defendant No.3
vide Vasika No.21520 which is neither a valid document nor sustainable in
the eyes of law as it was got executed by putting defendant No.1 under
pressure, fear and coercion. It is further alleged that plaintiffs approached
defendant No.2 and his family members and requested to get the said release
deed cancelled but the same was not done, therefore, the present suit was
filed seeking a declaration that the release deed dated 12.1.2006 executed by
defendant No.1 in favour of defendant No.2 before respondent No.3, is
illegal and void. It is further prayed in the suit that a decree for mandatory
injunction be granted directing respondent No.3 to cancel the release deed
as well as mutation, if any, sanctioned on the basis of release deed and
further direct defendant No.2 to hand over peaceful possession of the land
in question to the plaintiffs. It was further prayed that a decree for
permanent injunction be also passed in favour of the plaintiffs and against
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the defendants restraining them from creating any charge over the property
in question. Defendants No.1 and 2 filed joint written statement and
contested the suit filed by the plaintiffs. Besides raising preliminary
objections regarding cause of action, locus standi, concealment of material
facts, misjoinder and non-joinder of necessary parties, estoppel and
maintainability etc., it was alleged on merits that FIR under Section 325 IPC
has been registered against the plaintiffs. It was denied that defendant No.1
was staying with the plaintiffs and she was being looked after very well by
the plaintiffs and there was not an iota of complaint by defendant No.1
against the plaintiffs. It is rather pleaded that plaintiffs had never looked
after their mother (defendant No.1) and about six months back, she was
forcibly thrown out by the plaintiffs from their house. Consequently she had
to take shelter in the house of defendant No.2, who happens to be his cousin
where she started residing and defendant No.2 gave her shelter, food and all
other amenities of life. It is denied that in November 2005, defendant No.2
had gone to defendant No.1 at Delhi at the address of plaintiffs where
defendant No.1 was residing and informed him that Hazari Lal father of
defendant No.2 was not keeping well. It was further denied that plaintiff
No.3 had ever visited their house and despite his repeated visits, return of
defendant No.1 was postponed. As a matter of fact all the allegations
contained in the plaint were denied by the defendants. The plaintiffs
controverted the stand of the defendants by way of replication and the basic
issue framed by the trial Court was “as to whether the release deed dated
12.1.2006 is an act of fraud and misrepresentation.”
The trial Court after taking into consideration the evidence on
record, came to the conclusion that the release deed was executed by
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defendant No.1, which has been challenged by plaintiffs as her sons but in
the written statement, it has been denied that release deed is neither a valid
document nor sustainable in the eyes of law. Rather it was found by the
Court below that defendant No.1 was the absolute owner of the property in
question in view of Section 14 of Hindu Succession Act, 1956 and had a
right to alienate the property. It was further observed that had there been any
undue pressure exerted upon defendant No.1 by defendant No.2 then it was
for her to challenge the same. It was also noticed that defendant No.1 has
filed a separate suit to challenge the release deed, therefore, it was found
that so far as plaintiffs are concerned, they have no right to file the present
suit and the same was dismissed. In the first appeal also, the Appellate
Court returned same finding that defendant No.1 being absolute owner of
the suit land had every right to deal with the same in any manner and if
there was any fraud then only defendant No.1 had a right to challenge the
same for which she had already filed a civil suit to that effect.
Sh.P.R.Yadav, Advocate, learned counsel for the appellants
was at pains while submitting that there was a fraud committed upon
defendant No.1 by defendant No.2 while keeping her in captivity and then
to get release deed from her of the property in his favour, therefore, it was
submitted that it was a case of undue influence exerted by defendant No.2
upon defendant No.1. Learned counsel for the appellants, however, has
failed to justify the suit filed by the plaintiffs in view of the fact that
defendant No.1 who is the owner of the property and had executed the
release deed herself has filed a suit against defendant No.2, therefore, the
plaintiffs have no locus standi to file the suit in respect of the property.
In view of the above discussion, I do not find any merit in the
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present appeal, therefore, the same is hereby dismissed with no order as to
costs.
(Rakesh Kumar Jain)
7.11.2008 Judge
Meenu