Delhi District Court
Rajender Kumar Gupta vs Suresh Chand Gupta on 20 August, 2022
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IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE, SOUTH
SAKET, NEW DELHI.
CIS RCA No. 91/17
CNR No. DLST01-008616-2017
RAJENDER KUMAR GUPTA
S/o late Sh. N.R. Gupta
R/o 252-A, Sant Nagar, East of Kailash
New Delhi
...APPELLANT
VERSUS
1. SURESH CHAND GUPTA
S/o Sh. Khem Chand Gupta
(Since Deceased)
Through LRs:-
i. SUSHILA
W/o late Sh. Suresh Chand Gupta
R/o H. A-92A, Jawahar Park, Khanpur
Deoli Road, New Delhi
ii. GAURAV JINDAL @ AJAY
S/o late Sh. Suresh Chand Gupta
R/o H. A-92A, Jawahar Park, Khanpur
Deoli Road, New Delhi
iii. MOHIT
S/o late Sh. Suresh Chand Gupta
R/o H. A-92A, Jawahar Park, Khanpur
Deoli Road, New Delhi
iv. VENI @ REENA
D/o late Sh. Suresh Chand Gupta
R/o H. A-92A, Jawahar Park, Khanpur
Deoli Road, New Delhi
RCA No. 91/17
Rajender Kumar Gupta Vs. Sushila Gupta Page No. 1 of 12
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2. SUSHILA GUPTA
W/o late Sh. Suresh Chand Gupta
R/o H. A-92A, Jawahar Park, Khanpur
Deoli Road, New Delhi
... RESPONDENTS
Date of Institution : 07.11.2017
Date of Arguments : 05.08.2022
Date of pronouncement of order : 20.08.2022
Argued by : Sh. Deepak Khosla, Counsel for appellant.
Sh. R.B. Singh, Counsel for respondents.
ORDER
1. Present civil appeal is directed against judgment and decree dated 03.10.2017 passed by Sr. Civil Judge (West), Delhi. Vide the impugned judgment and decree plaintiff's suit for recovery of possession, mesne profits, declaration and permanent injunction has been dismissed.
2.1 It was the case of plaintiff that defendant no. 1 had sold the suit property measuring 50 sq. yards comprised in Khasra No. 488, Village Khanpur, private No. A-92A, Jawahar Park, Khanpur, Deoli Road, Delhi (hereinafter referred to as suit property) to the plaintiff. An oral agreement for sale of the aforesaid property was entered into between the parties on 15.06.1995 for a total consideration of Rs.35.,000/-. On the same day, plaintiff gave Rs.30,000/- in cash to defendant towards part sale consideration. However, no formal agreement was executed as the parties were closely related to each other. Plaintiff thereafter, renovated and constructed various rooms and shops in RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 2 of 12 :: 3 ::
suit property and permitted defendants to live there as licencees.
2.2 Subsequently, on 21.02.2004 balance sale consideration of Rs.5,000/- was paid by way of cheque. Agreement to sell (Ex.PW1/3), registered power of attorney (Ex.PW1/5), affidavit (Ex.PW1/6), Undertaking (Ex.PW1/7), receipt for consideration (Ex.PW1/8), possession letter (Ex.PW1/9), Will (Ex.PW1/14) (hereinafter referred to as 'GPA sale documents') were executed by defendant no. 1 in favour of plaintiff. The plaintiff thus, acquired complete and absolute rights in the suit property.
Thereafter, plaintiff revoked the licence orally and also by way of notice dated 22.09.2005 (Ex.PW1/10). After termination of licence, possession was sought by plaintiff and also damages/ mesne profit for use and occupation of the suit property at the rate of Rs.3500/- per month. Since the defendants did not do the needful, therefore, the suit for possession, mesne profits, injunction etc. was instituted.
2.3 Defendants contested the suit by raising preliminary objections that the suit property stood transferred by defendant no. 1 to defendant no. 2 by way of a registered GPA, Will, agreement to sell, possession letter, indemnity bond etc. executed on 10.12.2002. Plaintiff thus, had no right, title or interest in the suit property. However, defendant no. 1 fraudulently got executed and registered a GPA and Will w.r.t. suit property on 21.02.2004. The documents w.r.t. suit property bearing no. A-
RCA No. 91/17Rajender Kumar Gupta Vs. Sushila Gupta Page No. 3 of 12 :: 4 ::
92A, Jawahar Park, Deoli Road, Khanpur were got executed and registered along with sale documents w.r.t. another property, bearing no. 252A, Sant Nagar, East of Kailash. It is further pleaded that wedding of son of defendant no. 1 was scheduled on 17.02.2004 and taking advantage of the pre-occupation of defendant no. 1 in the ceremonies associated with marriage, plaintiff got the GPA and Will executed and registered on 21.02.2004. On getting knowledge of execution of aforesaid documents, defendant no. 1 executed a deed for cancellation [Ex.PW1/8 (colly)] w.r.t. registered GPA and Will and got the cancellation deed registered on 06.03.2004. It is therefore, pleaded that plaintiff had no valid document in his favour so as to claim ownership of the suit property.
2.3.1 In reply to plaint on merits, it is pleaded that there could be no justifiable reason for defendant to sell a property worth Rs.15 lacs for a sum of Rs.35,000/-. Any oral agreement dated 15.06.1995 or receipt of Rs.30,000/- as part sale consideration is denied. However, execution and registration of agreement to sell, Will etc. on 21.02.2004 is not disputed and as explained earlier, the same was pleaded to be by misrepresentation. Suit was therefore, sought to be dismissed.
3. Plaintiff filed replication contesting the contents of written statement and reiterating those of the plaint. However, there is no specific denial to execution and registration of sale documents RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 4 of 12 :: 5 ::
w.r.t. property, bearing no. 252A, Sant Nagar, East of Kailash on the same date, i.e., 21.02.2004 when the GPA and Will w.r.t. suit property were got executed by the plaintiff from defendant no. 1.
4. On the pleadings of parties, trial court framed following issues:-
"1. Whether the plaintiff is entitled to the decree of possession/ ejectment, as prayed for? OPP
2. Whether the plaintiff is entitled to the equitable relief of declaration, as prayed for? OPP
3. Whether the plaintiff is entitled to the equitable relief of permanent injunction, as prayed for? OPP
4. Whether the plaintiff is entitled to the damage/ mesne profits and a sum of Rs.10,500/-? If so, at what rate and for what period? As prayed for? OPP
5. Relief."
5. Plaintiff examined himself as PW-1, Mohd. Ashraf Shafi as PW-2. Plaintiff also examined PW-3 Sh. C.S. Bhatia, PW-4 Sh.
Anil Kumar Singh and PW-5 Ms. Sonia Jain, who are officials from the office of Divisional Commissioner & Sub-Registrar, who proved various registered documents in favour of plaintiff by defendant no. 1.
6. Defendant no. 1 examined himself as sole defence witness.
7. On the basis of evidence that came on record, trial court held that plaintiff had not been able to prove his possession or RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 5 of 12 :: 6 ::
ownership. Documents to claim ownership were hit by law laid down in Suraj Lamp Industries Pvt. Limited Vs. State of Haryana 183(2011) DLT 1 (SC). Therefore, he was neither entitled to leave of possession or declaration or permanent injunction. Claim of damages/ mesne profit was also held not permissible and was dismissed.
8. Aggrieved by aforesaid judgment and decree, present appeal has been preferred.
9. Though an application under 41 Rule 27 was filed at the initial stage; however, while addressing arguments orally it was prayed for the application to be disposed of as not pressed. Therefore, before this court there is no fresh material, but the material which was before trial court at the time of passing of impugned judgment and decree.
10.1 Sh. Deepak Khosla, Counsel for appellant addressed oral arguments as well as relied upon written arguments filed by him. It is argued that trial court committed an error in relying upon law laid down in Suraj Lamp's case. It is argued that sale transaction in the present case had taken place in 2004 and the suit was instituted in 2006 whereas, judgment in Suraj Lamps case was rendered in 2011. There can be no retrospective application of the judgment. Therefore, sale by way of 'GPA sale' documents shall be accepted to be good sale, as per law RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 6 of 12 :: 7 ::
prevalent in 2004/ 2006. It is next argued that the trial court committed an error in accepting the defendant's plea regarding revocation of agreement to sell, GPA etc. dated 21.02.2004 by way of cancellation deed dated 06.03.2004. It is argued that on the same allegation, defendant had also instituted a complaint before MM (Saket) wherein, the present appellant was summoned, but Hon'ble High Court of Delhi vide its order dated 15.09.2016 quashed the complaint. It is therefore, argued that trial court committed an error in relying upon the cancellation deed.
10.2 It is also argued that none of the documents proved by the defendant has been exhibited, therefore there is no evidentiary value of documents relied upon by the respondent/ defendant. Sh.
Khosla has relied upon Ramesh Chand Vs. Suresh Chand & Anr. 188 (2012) DLT 538 to argued that 'GPA sale documents' may not confer the status of classical owner of suit property, but nonetheless the person possessing these documents would have better title and right of possession than the party, which does not have any document in its favour. Reliance has also been placed upon law laid down in Kuldip Singh Suri Vs. Surinder Singh Kalra 1999 (48) DRJ to argue that on the basis of GPA, Will etc. decree of specific performance could be granted.
11.1 In rebuttal, Sh. R.B. Singh, Counsel for defendants has argued that there is no infirmity, illegality in the impugned RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 7 of 12 :: 8 ::
judgment. It is argued that having purchased the suit property for Rs.5.75 lacs, there was no occasion for defendant no. 1 to enter into sale transaction with plaintiff within a year of purchase for an amount of Rs.30,000/-. It is argued that the plaintiff/ appellant misrepresented and took advantage of the defendant's pre- occupation in the marriage ceremony of his son, which was scheduled for 17.02.2004 and got the GPA and Will executed and registered on 21.02.2004 along with property documents of another property, bearing no. A-252, Sant Nagar, East of Kailash. It is also argued that law laid down in Suraj Lamps case is applicable on the facts of the present case, as by way of the judgment rendered by Hon'ble Supreme Court of India, no new law has been laid down, only an existing law has been explained and reiterated. Therefore, the question of judgment being not retrospective is not relevant. It is argued that appellant has been unable to prove his title in the suit property or his possession. In case the plaintiff claims the oral agreement to have taken place on 15.06.1995 then the cause of action first rose on 15.06.1995 and the suit is highly belated and time barred.
11.2 Admittedly, no efforts were made by the appellant/ plaintiff from 1995 to 2004 w.r.t. seeking possession of the suit property.
In the absence of any document of proof of payment of Rs.30,000/-, the appellant/ plaintiff's story of having received the major payment in 1995, is not established.
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12. I have heard Sh. Deepak Khosla Counsel for the plaintiff/ appellant and Sh. R.B. Singh, Counsel for defendant/ respondent. With their assistance, I have gone through the written arguments submitted on behalf of plaintiff/ appellant. I have also gone through the trial court record, evidence, the impugned judgment and judgments of reliance.
13.1 In order to succeed in the suit and establish his right, title or interest in the suit property, plaintiff/ appellant was required to establish that the title holder of the suit property had executed valid sale documents in his favour. Appellant's best case is the documents dated 21.02.2004, i.e., GPA, agreement to sell, Will etc. executed by defendant no. 1 in his favour. However, there is no denial by the plaintiff/ appellant to the documents dated 10.12.2002 executed by defendant no. 1 in favour of his wife/ defendant no. 2. In such circumstances, if the appellant's argument w.r.t. legal position of 'GPA sale' documents is to be accepted then prior to 2004 documents in his favour, defendant no. 1 had already sold property in question to his wife/ defendant no. 2 on 10.12.2002 by way of similar of 'GPA sale' documents [Mark D (colly)]. Therefore, on 21.02.2004 when the documents were allegedly executed by defendant no. 1 in favour of plaintiff, he did not possess any right, title or interest in the suit property. He could not have transferred better title than what he himself possessed.
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13.2 However, this court does not find any illegality in the trial court's reliance upon Suraj Lamps case to hold that no title could have been transferred by way of GPA sale documents. Sh.
Khosla's argument that judgment did not have a retrospective effect is not a meritorious argument. Suraj Lamps judgment only reiterates the legal position that sale without execution of a registered sale deed is not a valid sale. It is not that the law has been enunciated by way of suraj lamps case. In the said case, Hon'ble Supreme Court of India only clarified and reiterated the legal position which always existed.
14.1 Sh. Khosla's reliance upon law laid down in Kuldeep Singh Suri's case (supra) is not relevant, as the said judgment was rendered in 1991 which is much prior to the Suraj Lamps case. In the year 1999, the sale by way of GPA documents was not doubted or challenged. Therefore, the same is not a good law. Sh. Khosla has next relied upon Ramesh Chand's case (supra). In the cited case, it was held that plaintiff who possessed 'GPA sale' documents had a better title than the defendant who did not possess any such document. It was held that even if plaintiff would not be a classical owner, but he would have better right. The judgment would not be applicable on the facts of the present case, as in the present case both the parties possess 'GPA sale' documents. granting title in their respective favour. Whereas, in the cited case defendant did not possess any such document.
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14.2 Sh. Khosla has next argued that Hon'ble High Court vide order dated 15.09.2016 passed in Crl. Miscl. No. 4455/13 quashed the complaint lodged by defendant no. 1 against the plaintiff, for getting the documents registered on 21.02.2004. It is therefore, argued that since Hon'ble High Court has disbelieved the defendants' version, the authenticity of document dated 21.02.2004 cannot be challenged. This court is of the opinion that though, the summoning order was quashed; however, since there was no evidence led in the criminal complaint, the findings would not be binding upon a civil court where the parties have led evidence and got the opportunity to prove their respective cases.
14.2.1In the circumstances as explained by defendant no. 1 when the documents w.r.t suit property were executed on the same day when another set of docments w.r.t. another property bearing no.
252A, Sant Nagar, East of Kailash were got executed by plaintiff from defendant, the chances/ possibility of fraudulently getting the documents w.r.t. suit property having been executed and registered, cannot be ruled out. This becomes more significant in view of the fact that the plaintiff has not disputed or denied that on the same day, i.e., 21.02.2004 sale transaction w.r.t. another property, bearing no. 252A, Santa Nagar, East of Kailash was got executed by plaintiff from defendant no. 1. This fact is further supplemented and supported by the fact that within a short time, i.e., on 06.03.2004 defendant no. 1 got the entire set of RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 11 of 12 :: 12 ::
documents dated 21.02.2004 cancelled. Therefore, as on date there is no document in favour of plaintiff/ appellant conferring title.
15. For the reasons aforesaid, this court is of the opinion that the trial court has not erred in appreciation of evidence or on application of law, while dismissing plaintiff's suit. Finding no merits in the appeal, the same is dismissed. The judgment and decree dated 03.10.2017 is upheld.
16. Trial court record be sent back along with copy of the judgment.
17. No order as to the costs. Decree sheet be prepared.
18. Appeal file be consigned to Record Room.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL Announced in the open Court KAUSHAL Date: on this 20th day of August, 2022 2022.08.20 16:16:31 +0530 (NAROTTAM KAUSHAL) Principal District & Sessions Judge South District: Saket Courts 20.08.2022 (v) RCA No. 91/17 Rajender Kumar Gupta Vs. Sushila Gupta Page No. 12 of 12