Delhi District Court
Cs No. 5/17/07 (New No.9595/16) Sanjay ... vs . Sita Sharma & Ors 1/14 on 6 July, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 5/17/07
New No. 9595/16
Sh. Sanjay Verma
S/o Sh. Yashpal Verma
R/o H-437, Vikas Puri,
New Delhi. ..... Plaintif
versus
1. Smt. Sita Sharma
D/o Sh. Mela Ram
R/o 9-A, Block-2,
Moti Nagar, New Delhi.
2. Smt. Ashwani Verma
W/o Sh. Yashpal Verma
R/o H-437, Ground Floor,
Vikaspuri, New Delhi.
3. Smt. Bindu
W/o Sh. Sudhir Kumar
R/o C-182, Second Floor,
Vikas Puri, New Delhi.
4. Smt. Rosy
W/o Sh. Amarjeet Singh
R/o B-1/77, Vishnu Garden Extension,
New Delhi.
5. Delhi Development Authority
through its Vice- Chairman,
I.N.A., Vikas Sadan, New Delhi.
.........Defendants
Date of institution of the case : 28.12.2007
Date of reserving of judgment : 02.06.2017
Date of pronouncement of judgment : 06.07.2017
CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 1/14
ORDER
1. The plaintif has filed a suit for declaration with consequential reliefs of mandatory and permanent injunction. The brief facts stated by the plaintif in the plaint are that defendant no.1 was the sole, absolute and exclusive owner of the property bearing No. H-437, Vikaspuri, New Delhi. The defendant no.1 has executed the sale documents i.e. General Power of Attorney, Agreement to Sell, Receipt, Will (duly registered) dated 04.06.1992 and since then the plaintif and his brother along with other family members are residing in the said property. Defendants are family members of the plaintif.
2. It is stated that defendant no.1 further executed a registered General Power of Attorney on 03.09.1997 in favour of the defendant no.2 in respect of the sit property on the basis of the said GPA, both the defendants no.1 and 2 started trying to dispossess the plaintif in collusion and connivance of each other. Consequently, the plaintif had filed a suit for permanent injunction against the defendant nos. 1 & 2 bearing Civil Suit No. 143/2007 before Sh. Vivek Kumar Gulia, Civil Judge, Delhi. In that suit, the defendant no.1 herein has made a statement on 21.11.2007 that she will not dispossess the plaintif from the first floor of the suit property without due process of law. In view of the statement, the said suit was disposed of.
3. It is further stated that on 12.06.2004, the defendant nos. 1 to 4 and the husbands of defendant nos. 3 & 4 illegally and forcibly entered into the house of the plaintif CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 2/14 and started fighting with him and the original documents were snatched by the defendant no.1 and her associates. The plaintif called the police and a Kalandra under Section 107/151 Cr.P.C. was framed against her vide DD No. 49-B dated 12.06.2004 with Police Station, Vikaspuri, New Delhi. During the criminal proceedings, plaintif prayed for return of the original documents but police officials advices him to knock the door of the Civil Court.
4. It is stated that the plaintif approached the defendant no.5/DDA for getting the suit property freehold from leasehold in his favour on the basis of the sale documents executed by the defendant no.1 in his favour and that proceedings are still pending with defendant no.5. During enquiry from the defendant no.5, it was revealed that the defendant nos. 3 and 4 have also applied for freehold of the suit property in their name on the basis of some ownership documents in their favour executed by defendant no.1, which are void-abinitio and have got no legal value in the eyes of law. It is stated that the documents executed by the defendant no.1 in favour of the plaintif were against the sale consideration and the sale consideration amount was duly received by the defendant no.1 while handing over the peaceful, actual and physical possession of the suit property and the Receipt as well as the Will are duly registered with the Sub-Registrar, Delhi and as per the terms and conditions of the Agreement to Sell, it cannot be cancelled/revoked by the defendant no.1 under any circumstances.
5. It is stated that on 215.12.2007 at about 5.00 p.m. the defendant nos. 1 to 4 and respective husbands of CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 3/14 defendant no.3 and 4 came at the suit property with their associates and created a scene with the representation that they had purchased the suit property from the defendant no.1 and defendant no.1 had also confirmed their version that she had sold the suit property to the defendant nos. 3 and 4 and they extended threats to dispossess the plaintif illegally and forcibly in case the plaintif fail to handover the peaceful and vacant possession to them. They also represented that they had already applied for transfer of the suit property from lease hold rights to freehold rights in their name and defendant no.5/ DDA is going to transfer the same in the name of the defendant nos. 3 and 4 shortly.
6. It is stated that defendant no.1 is taking the advantage of her own wrongs by snatching the original documents/papers duly executed by her in favour of the plaintif. The defendant no.1 had no right to execute other documents in respect of the suit property in the name of any person as the plaintif is the bonafide purchaser of the suit property and is in physical possession of the suit property since its purchase.
7. Joint written statement filed on behalf of defendant nos. 1, 3 and 4. In the preliminary objections, it is stated that the suit is barred under the provisions of Order 2 Rule 2 CPC as prior to the institution of the present suit, the plaintif had filed two false, frivolous and vexatious suits before the court of Ld. Civil Judge. It is stated that a reading of the said plaints and the present plaint would clearly show that the alleged cause of action in all the suits was similar/identical and the present suit is hopelessly barred by CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 4/14 time for seeking declaration. It is stated that the only remedy available to the plaintif in view of the alleged facts could have been a suit for specific performance within three years from the alleged agreement dated 04.06.1992. Plaintif is also not entitled to the said relief. The present suit is barred by limitation and merits rejection under Order 7 Rule 11 CPC.
8. It is stated that the reliefs as prayed for by the plaintif are not permissible under the law in as much as it is well within the knowledge of the plaintif that the defendant nos. 3 and 4 are the absolute, rightful, true owners of the suit property by virtue of documents dated 02.04.2004 and the suit of the plaintif without seeking cancellation of the said documents is not maintainable being a suit for declaration simplicitor. The plaintif to abrogate upon the rights of the defendant nos. 3 and 4, filed a suit bearing No. 143/2007 in June, 2007. The present suit of the plaintif is neither tenable nor maintainable in law as admittedly the plaintif has no locus-standi or any right, title or interest in the suit property.
9. It is stated that there is no privity of contract between the plaintif and the defendant no.1 and the alleged documents annexed with the plaint are mere photocopies which appear to have been manipulated by the plaintif. It is stated that mischief can be appreciated from the fact that the General Power of Attorney which is filed by the plaintif himself shows the same to be in the name of Sh. Rajiv Verma and the rest of the documents also clearly show its manipulation from the fact that the alleged agreement to sell is showing the date of purchase of the stamp paper of 04.06.1992 and there is the alleged attestation of the said CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 5/14 agreement at second page showing the same to be of 1996. In the light of the said situation when admittedly the answering defendant had duly cancelled the General Power of Attorney which she had executed in favour of Sh. Rajiv Verma on 04.06.1992 through a registered Cancellation of General Power of Attorney executed by her on 03.09.1997 which was duly registered as document No. 36184 in Book No. IV Vol. No.740 at page 167 on 03.09.1997 with the Sub registrar, sD No. VI, Delhi and thereafter a fresh General Power of Attorney was executed by the defendant no.1 in favour of Smt.Rosy Chaudhary and Smt. Bindu Babbar along with the agreement to sell duly registered with the office of the Sub-Registrar as document No.5944 in Addl. Book No.1, Vol No.11471 at pages 72 to 76 on 02.04.2004.
10. It is stated that the plaintif has not approached the Court with clean hands and is trying to take advantage of his own wrongs. It is stated that the plaintif had been allowed to live in the suit property being the son of the defendant no.2 who is the real sister of the answering defendant and when the defendant no.2 herself has also disowned the plaintif by executing a registered Disclaimer Deed and the same fact was also got published in Rashtriya Sahara newspaper of dated 29.01.2004.
11. It is stated that the plaintif has also tried to manipulate and concoct a plea that the original documents had been snatched by the answering defendants and their associates without specifying their names and this itself showed their falsehood and manipulation to create a false cause of action for filing the present suit. The plaintif is CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 6/14 seeking an injunction in respect of the entire property when he himself alleges that he is only in occupation of the first floor of the premises. The plaint is not properly verified. Mandatory notice under the DDA Act has not been issued prior to the institution of the present.
12. On merits, the averments made in the plaint are denied as wrong, incorrect, baseless and misconceived. It is stated that the plaintif is guilty of forum shopping in as much as after disposal of two earlier suits, the plaintif has filed the present suit without reserving any right to file the present suit. It is stated that there is no question of the answering defendant snatching the alleged documents when none existed. The very fact that the plaintif has been silent thereafter clearly sows that there was no documents of ownership executed in his favour.
13. Written statement also filed on behalf of defendant no.2 Smt. Ashwani Verma. In the preliminary objections, it is stated that the suit of the plaintif qua the answering defendant is without any cause of action and is liable to be dismissed under Order VII Rule 11 CPC. The plaintif has no locus-standi to file the present suit. The suit is bad for mis-joinder of unnecessary parties as the answering defendant has been impleaded unnecessarily.
14. On merits, the averments made in the plaint are denied as wrong and incorrect. It is stated that the documents of sale executed by the defendant no.1 in favour of the defendant no.2 are genuine documents. It is stated that the plaintif is not entitled to any of the relief as prayed CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 7/14 for qua the answering defendant.
15. Defendant no. 5/DDA also filed written statement. In the preliminary objections, it is stated that the court has no pecuniary jurisdiction to entertain the present suit. The suit filed by plaintif does not discloses any cause of action against the answering defendant/DDA. No notice as required under Section 53-B of Delhi Development Authority Act was served upon the defendant/DDA prior to filing of the present suit. The petitioner has not come to the Court with clean hands and has suppressed the material facts. It is stated that a plot No. H-437, Vikas Puri was allotted to Ms. Sita Sharma D/o Late Sh. Mela Ram and possession of the plot was handed over to her on 04.05.1976. The lease of the plot was executed in her faovur on 03.02.1977. A conversion application dated 12.10.1996 was received from Sh. Rajiv Verma father of the plaintif which was subsequently rejected as the applicant failed to make the payment and provide required documents inspite of repeated reminders.
16. It is stated that in the present case Ms. Sita Sharma executed a GPA in favour of Sh. Rajeev Verma and agreement to sell in favour of Sh. Sanjay Verma. Later on the lessee cancelled the said GPA and agreement to sell vide cancellation of GPA duly registered on 03.09.1997 with the appropriate registering authority and cancellation of agreement to sell vide cancellation deed dated 03.09.1997. It is stated that another conversion application dated 30.06.2004 was received from Mrs. Rosy Chaudhary and Mrs.Bindu Babbar on the basis of GPA and agreement to sell dated 02.04.2004 executed in their favour duly registered CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 8/14 with the appropriate registering authority on 09.06.2004 and 02.04.2004 respectively.
17. It is stated that the dispute in the case arose due to the conflicting claims and time and again opportunities were aforded to respective parties to substantiate their claims. The suit no. 197/05 was filed by Sh. Sanjay Verma against Ms. Sita Sharma and Smt. Ashwani Verma (mother), which was dismissed on 04.03.2006 by the court of Ld. Civil Judge, Delhi as one appeared on behalf of the plaintif. The restoration application of the plaintif was also dismissed. Vide letter dated 05.06.2006 by the DDA, both the parties were informed to settle their dispute through competent court.
18. It is stated that Sh. Sanjay Verma vide letter dated 27.08.2007 further informed that the case with Ms. Sita Sharma is pending in the court of Smt. Bimla Makin, Ld. ADJ, Delhi and in the absence of decision of Court, the property may not be converted into freehold. A copy of Court Notice in the matter of Sh. Sanjay Verma vs. Mrs. Sita Sharma & Ors. along with a copy of order dated 31.05.2007 in CM (M) 826/2007 passed by the Hon'ble High Court was also submitted. The defendant no.5/DDA vide letter dated 01.11.2007 addressed to plaintif, defendant nos. 2, 3 and 4 requested to initmate the status of the said matter and to inform in which capacity Smt. Ashwani Verma & Sh. Sanjay Verma are residing in the said premises as reported by the field staf. Sh. Sanjay Verma vide letter dated 12.11.2007 again filed copies of court orders dated 17.09.2007 along with copies of proof of physical possession with the request not to CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 9/14 convert the property into freehold till the matter is decided before the court.
19. On merits, the averments made in the plaint are denied as wrong and incorrect. It is stated that the suit of the plaintif against th defendant no.5/DDA is not tenable and liable to be dismissed.
20. Plaintif filed replication to the written statement of defendant nos. 1, 3 and 4; defendant no.2; and defendant no.5/DDA respectively. In which the averments made in the respective written statements are denied as wrong and incorrect and averments made in the plaint are reiterated.
21. On the pleading of the parties vide order dated 19.01.2010, the following preliminary issues were framed by my ld. predecessor :-
1. "Whether the suit of the plaintiff is barred under the provision of Order II Rule 2 CPC? OPD"
2. "Whether the plaintiff has no locus standi to file the present suit? OPD"
22. I have heard Sh. A. K. Tripathi and Sh. Ram Avtar, Counsel for the petitioner and Ms. Rashmi Shrivastava, Counsel for respondent no.5/DDA and perused the record. However, there is no assistance on behalf of defendant nos. 1 to 4. My findings on the preliminary issues are as under:
CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 10/14 PRELIMINARY ISSUE Nos. 1 & 2
23. It is pertinent to mention here that the parties to the present suit are brother and sisters and defendant no.1 is their mother. During the proceedings, defendant no.4 Rosy has died.
24. The reference to the order of my ld. Predecessor dated 19.08.2011 is essential. In this order, it is observed that another suit with respect to the suit property has already been filed before the then Ld. ADJ (West) Sh. N. K. Goel and this fact has been admitted. The said suit is for seeking the possession filed by the defendant no.2 against the plaintif. The present case filed by the plaintif seeking the relief of declaration on certain documents i.e. General Power of Attorney, Agreement to Sell, Receipt, etc. of the suit property alongwith mandatory and permanent injunction. It is further observed in this order that the suit for possession would determine all the rights of the parties and therefore transferred by the then ld. Civil Judge (West) Ms. Chhavi Kapoor to the Court of Ld. District Judge to be marked to Ld. ADJ. Consequently, the case was marked to the then Ld. ADJ Sh.sunil Rana. Thereafter again ld. Predecessor on 24.01.2013 transferred the present case to the Court of Sh.N.K. Goel, the then Ld. ADJ (West).
25. During the course of arguments, it has been further apprised that earlier also defendant no.2 filed a suit titled "Sanjay Verma vs. Sita Sharma" for seeking the relief of permanent injunction pertaining to the same suit property in the year 2007 which was decided on 21.11.2007 by the then CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 11/14 Ld. Civil Judge Sh. Vivek Kumar Gulia. The Ld. Civil Judge had recorded the statement of the parties wherein the defendant no.1 made the statement that Sanjay Verma shall not be dispossessed without due process of law. Another suit filed by Sanjay Verma, plaintif which is pending before this Court in the year 2007 itself. Another suit filed by Harsh Mani Mohindra against Sanjay Verma during the vacation having No. VS-03/2011. The said suit was marked to the then Ld. Civil Judge Ms. Chhavi Kapoor and same was dismissed as withdrawn in view of recording of statement of the parties. The parties mentioned that a suit for possession was filed against Sanjay Verma in the Court of the then Ld. ADJ Sh.N.K.Goel. However the parties failed to apprise the Court the fate of the suit for possession which was pending before the ld. Predecessor Sh. N. K. Goel, the then ld. ADJ.
26. The plaintif in the present suit is seeking declaration of ownership on the basis of Power of Attorney, Agreement to Sell, Receipt and Will purportedly executed on 04.06.1992 and alleged to be executed by the defendant no.1 Sita Sharma in favour of Sanjay Verma, plaintif with regard to the suit property. It is admitted by the plaintif that the original documents are not in his possession and a bald plea was taken that the original documents are snatched by the defendant nos. 1 to 4. the photocopy of General Power of Attorney is not at all readable. However, it is mentioned to be dated as 04.06.1992. The agreement also mentioned the date 04.06.1992. However it was purported to be a Notary stamp dated 23.09.1996. Similarly the receipt also bear the date of attestation of Notary as 04.06.1992 as well 23.09.1996. All the documents are unregistered. There is no CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 12/14 explanation to this efect. Another document filed on record is the cancellation by Sita Sharma of the all abovesaid documents in favour of plaintif dated 04.06.1992. This document has been registered on 03.09.1997. She also cancelled a Will dated 04.06.1992 in favour of Sanjay Verma on the same date with cancellation of Will document duly registered.
27. In the light of above peculiar circumstances, the right of declaration has to be agitated within three years from the said cancellation by Sita Sharma but plaintif approached the Court after about 10 years. The document pertains to the year 1992, therefore declaration must have been sought within three years by the plaintif but he failed. It is pertinent to mention here that another suit pending for possession by the defendants also has the same lis and plaintif can prove his right of ownership in the said suit as well because it is obvious that plaintif must have based claim on the basis of these documents. The relief with regard to permanent injunction has already been set at rest by the two above mentioned civil litigations between the parties. The relief with regard to mandatory injunction is based on bald allegations and especially the said documents stand cancelled by the defendant no.1 Sita Sharma.
28. On the basis of above observation and discussion, the preliminary issue is decided in favour of defendants and against the plaintif.
CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 13/14 RELIEF
29. In view of my findings on preliminary issues, the instant suit is dismissed. Decree sheet be prepared accordingly.
30. File be consigned to Record Room.
Announced in the open court today the 06th July, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 06.07.2017 CS No. 5/17/07 (New No.9595/16) Sanjay Verma vs. Sita Sharma & Ors 14/14