Decided on April 20,2007

Ram Prakash Kathuria Appellant
Ved Prakash Kathuria Respondents


- (1.) Defendant No. 1 has filed this application under the provisions of Order 7 Rule 11 CPC seeking rejection of the plaint/suit filed by the plaintiff. Before coming to the grounds on which such a prayer is preferred in this application, it would be appropriate to take note of the averments made in the plaint and the relief prayed for by the plaintiff in the suit.
(2.) The suit filed by the plaintiff is for declaration and injunction. The plaintiff as well as all the defendants are brothers. They are the children of late Sh. Hari Chand Kathuria. It is alleged in the plaint that their father was originally the resident of Sarai Sidhu which is now in the Pakistan. After the partition of the country in the year 1947, the whole family migrated to India. Defendant No. 3, who is the eldest, started his business of manufacture of cycle parts with his three uncles. Other three brothers were not working or earning in the family at that time. Defendant No. 3 purchased the property No. E-86, Kirti Nagar, New Delhi (hereinafter referred to as the suit property) in the name of his mother in the year 1964 from his own funds. Entire family except the defendant No. 3 resided in this property. It is also stated that their mother was a Pardanashin lady and a housewife and did not have any source of income. The plaintiff got married in the year 1972 and the defendant No. 1 was married in the year 1974. After the marriage of the defendant No. 1, certain disputes arose between the family members. The meeting of the family members took place and it was decided by the elders of the family that the plaintiff and the defendants shall hold the property jointly and further that the plaintiff and the defendant No. 1 shall be allowed to stay in the property till the same is divided by metes and bounds. Since then the plaintiff is in possession and enjoyment of portion marked as red in the sketch plan of the property enclosed with the plaint. On 10.8.2004, however, the defendant No. 1 threatened the plaintiff with dispossession on the pretext that he had no right in the property. The plaintiff resisted this move of the defendant No. 1 and said that he was not authorized under the law to forcibly evict the plaintiff or to sell, alienate or transfer the same. At that moment, the defendant No. 1 informed that he was the sole owner of the property by virtue of a Gift Deed executed by their mother Smt. Sita Devi. On this, the plaintiff made further enquiries and it transpired that allegedly Gift Deed has been executed by Smt. Sita Devi in favour of the defendant No. 1 in respect of the suit property. He obtained certified copy of the Gift Deed from the office of the Sub-Registrar, Delhi and got in touch with the witnesses mentioned in the Gift Deed. Sh. Kishan Gopal, witness No. 1, told the plaintiff that he did not know Smt. Sita Devi or the defendant No. 1 and in fact he had never ever witnessed the alleged Gift Deed and had never visited the office of the Sub-Registrar. When the defendant No. 1 brought the fact of the Gift Deed to the defendant Nos. 2 and 3, they were also shocked and endorsed the view of the plaintiff that the said document was forged and fabricated document. The plaintiff, in these circumstances, has filed this suit with the following prayers: a) pass a decree of declaration declaring the alleged Gift Deed dated 14.12.1982, as being void, illegal and of no consequences; and b) pass a decree of declaration declaring that the plaintiff and the defendants are the joint owners of the property bearing No. E-86, Kirti Nagar, New Delhi; and c) pass a decree of permanent injunction in favour of the plaintiff and against the defendant No. 1 thereby restraining the defendant No. 1 from selling, alienating, transferring and from further interfering with the peaceful possession and enjoyment of the property bearing No. E-86, Kirti Nagar, New Delhi.
(3.) In the plaint, the plaintiff has tried to explain as to how the Gift Deed appears to be a forged document as it creates lots of suspicion which are (a) witness No. 1 had not signed the document and did not even know Smt. Sita Devi or the defendant No. 1; (b) Smt. Sita Devi had not signed the said documents and the signatures on the document are forged. She never visited the office of the Sub Registrar; (c) The execution of the said document had not taken place in the presence of the witnesses which was a statutory requirement; (d) Sh. Hari Chand Kathuria (father of the parties) who was husband of a Pardanashin lady was not present at the time of execution of the Gift Deed and at no point of time this fact was disclosed in the family; (e) Address of Smt. Sita Devi as shown in the Gift Deed is of Kalanour, Haryana whereas she was residing in Delhi; (f) she did not and could not execute the alleged gift deed as she knew that the property had fallen to the share of the plaintiff and the defendant No. 1 as per the family settlement to which settlement she had also consented.;

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