Delhi District Court
Smt. Lakhmiri W/O Late Sh. Bega vs Cs No. 200/2016(517144/2016) on 1 July, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No.200/2016 (517144/2016)
In the matter of:
1. Smt. Lakhmiri W/o late Sh. Bega
(since deceased through her legal heirs)
i) Sh.Ramesh Son
ii) Sh.Shamvir Son
iii) Sh.Rameshwar Son
iv) Sh.Omvir Son
All sons of late Sh.Bega
and resident of House no. 53, Bhatti Khurd Village,
New Delhi
v) Smt.Shyama Daughter
wife of Sh.Mitti Ram
R/oSector5, Harola Gaon, Noida, UP
vi) Smt.Omwati Daughter
wife of Sh.Naresh
R/oMophtabad
Faridabad, Haryana
2. Sh. Virender Singh
S/o Sh. Raghubir Singh
R/o 184, Gali Bari Choppal,
Badarpur, New Delhi
.....Plaintiffs
Versus
CS No. 200/2016(517144/2016)
Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 1 of 92
1. M/s Bhanu Builders (P) Ltd.
Through its Director Sh. Virender Solanki
R/o WZ306, Palam Village,
New Delhi
2. Sh. Rajender Singh
S/o Sh. Raghubir Singh
R/o 206, Mansarovar Garden,
New Delhi
3. Sh. Saumya Gupta,
S/o Sh. R.K. Gupta,
R/oE236, Suraj Mal Vihar,
Delhi
4. Smt. Jasbir Kaur Bedi,
W/o Late S. Baldev Singh,
R/o 94, Manak Vihar,
Delhi110092
5. Delhi Development Authority
Through its Vice Chairman
INA, Vikas Sadan,
New Delhi
....Defendants
Date of Institution of Suit : 28.05.2007
Date of transfer to this court : 23.07.2018
Date of reserving judgment : 10.06.2022
Date of pronouncement : 01.07.2022
Appearance:
(i) Sh.C. Mohan Rao, Sr. Advocate and Sh. Lokesh Sharma,
Advocate, ld.Counsel for the plaintiff.
(ii) Sh. Ajay Chaudhary, Advocate ld.Counsel for defendant no.1
CS No. 200/2016(517144/2016)
Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 2 of 92
(iii)Sh. Manu Nayar, Advocate, ld.Counsel for defendant no.2
(iv)Sh. Nitin Garg, Advocate ld.Counsel for defendant no. 3
(v) Sh. P.S. Rana, Advocate ld.Counsel for defendant no. 4
SUIT FOR DECLARATION AND POSSESSION
J U D G M E N T:
1. The plaintiffs have filed the present suit for declaration and possession against the defendants. The brief facts relevant for the disposal of the present suit are like this :
(i) It is averred that the plaintiff no.1, an illiterate women, is the daughter of Sh. Mam Raj and wife of late Sh. Bega. Plaintiff no.2 is the first cousin of plaintiff no.1. Plaintiff no.1 was alloted the suit plot i.e. Plot no. 43, Sector 12 A, Dwarka Residential Scheme, New Delhi (hereinafter referred to as the suit plot) under the policy of Delhi Government for providing alternative residential plots in case of large scale acquisition of land.
(ii) It is averred that the case of plaintiff no.1 was recommended to defendant no.5 for allotment of alternative residential plot vide letter dated 20.12.88. The DDA, acting on the recommendation of the Delhi Government, issued an allotment letter allotting the suit plot in favour of plaintiff no.1 vide letter dated 04.11.93.The entire demanded amount was paid by the plaintiff no.2 between 31.01.94 to CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 3 of 92 30.11.95. The possession of the suit plot was handed over to the plaintiff no.1 on 12.02.1996.
(iii) It is further averred that plaintiff no.1 received certain rumours in September 2000 that some property dealers/parties were claiming right over the suit plot on the basis of some forged documents, therefore, in order to put an end to such rumours, and in order to warn the general public about the rights of plaintiff no.1 in respect of suit plot, plaintiff no.1 issued news publication on 06.10.2002 in the newspaper Hindustan Times informing general public that, she is the absolute owner of the suit plot, and also warned general public that certain unscrupulous persons, on the basis of forged and fabricated documents, are trying to sell the suit plot, and nobody should enter into any deal with respect to the suit plot.
(iv) It is further averred that plaintiff no.2 was falsely implicated in a criminal case and was in judicial custody between 09.05.1996 and May 2000, except for a month, when he was released on parole in October, 1997. It is further averred that a perpetual lease deed was executed in favour of the plaintiff no.1 on 21.07.1997. It is further averred that plaintiff no.1 agreed to sell the suit plot to plaintiff no.2, who also made the entire payment in respect of the suit plot to DDA. The plaintiff no.1 realized that the perpetual lease deed papers were CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 4 of 92 lost some time in the first week of October 1997 and a complaint was lodged as DD No. 11 dated 12.10.1997, with the Police Station, Badarpur, New Delhi.
(v) It is further averred that as per the terms and condition of allotment, construction was to be raised on the suit plot within a period of two years from the date of handing over of possession, however, plaintiffs were not in a position to raise the construction within the stipulated period and an application was made to defendant no.5/ DDA for extension of time vide letter dt. 06.09.2001 and the time was granted by defendant no.5 till 13.12.2001 vide letter dated 21.09.2001, subject to payment of Rs. 9,185/ for extension and Rs/ 300/ on account of service charges. Plaintiff no.2 made the payments on 08.11.2001.
(vi) It is further averred that plaintiffs on 10.10.2002, applied for issuance of duplicates sets of perpetual lease deed papers in favour of plaintiff no.1 and the DDA sought confirmation regarding the loss of perpetual lease deed papers from the concerned police station on 31.01.2003. SHO, P.S. Badarpur confirmed about the loss of papers and receipt of the complaint vide confirmation letter dt. 11.02.2003, thereafter, defendant no.5 issued duplicate documents in favour of plaintiff no.1 on 17.03.2003.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 5 of 92
(vii) It is further averred that plaintiff no.1 executed an Agreement to sell, General Power of Attorney etc., in favour of plaintiff no.2 on 11.05.2005. The plaintiff no.2 paid a stamp duty of 7% on the consideration amount. Plaintiff no.2, thereafter, after execution of various documents transferring rights over the suit plot by the plaintiff no.1 in favour of the plaintiff no.2, applied for conversion of lease hold rights in the suit plot into freehold rights vide application for conversion dated 17.06.2005.
(viii) It is further averred that plaintiff no.2 when approached the defendant no.5 for conversion of the suit plot in his favour from lease hold to free hold, was informed that some court case is pending in respect of the suit plot. He was told that certain documents were executed in the office of Sub Registrar, South WestIX, New Delhi. Therefore, plaintiff no.1 applied for copies of the documents executed in respect of the suit plot.
(ix) It is further averred that the documents were made available by the office of Sub registrar on 15.07.2005. The plaintiffs have came to know that a GPA dated 23.10.1997 (in short, the said deed) was executed by plaintiff no.1 in favour of defendant no.2. Thereafter, plaintiffs were shocked to know about the said deed, which is forged one, purportedly executed and registered by plaintiff no.1 in favour of CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 6 of 92 the defendant no.2 without plaintiff no.1 knowing about the same. Plaintiffs also came to know that a compound wall, two rooms and a WC were constructed over the suit plot while the suit plot was a vacant plot. The plaintiff used to occasionally visit the suit plot, however, third parties made construction over the suit plot taking advantage of the fact that the suit plot was a vacant plot.
(x) It is further averred that on inquiries, the plaintiffs came to know that defendant no.1 is a part of well orchestrated building mafia and had fabricated the false documents and had taken forcible possession of the vacant suit plot. Plaintiff no.1 assured plaintiff no.2 that she had not executed any documents or put her thumb impression on any of the documents nor she visited the office of registrar for execution/ registration of the said deed, therefore, the said deed is forged.
(xi) It is further averred that plaintiff no.2, in order to verify the genuineness of documents purportedly executed by plaintiff no.1 in favour of defendant no.2, approached a finger prints expert providing him the fingerprints of the plaintiff no.1 for comparison with the fingerprints affixed by plaintiff no.1 on the said deed and other sale documents. The finger print expert vide his report dated 28.07.2005 CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 7 of 92 opined that the fingerprints appearing on the said deed are not that of plaintiff no.1.
(xii) It is further averred that plaintiffs were confidant that plot is safe, therefore, plaintiffs sought advice from persons conversant with the property matters and were informed that none had approached the defendant no. 5 with the forged documents claiming a right over the suit plot, and plaintiffs were advised that, if anybody, approached defendant no. 5/DDA on the basis of said forged documents, they should point out the said forgery. However, the plaintiff no.1 was advised to get the suit plot converted from leasehold to freehold in the name of plaintiff no.2 to avoid any problem in respect of the suit plot.
(xiii) It is further averred that plaintiffs informed defendant no. 5 about the rumors that people are claiming right in respect of the suit plot as well as the facts that someone has forged the said deed. It was pointed out that, in any case, none approached defendant no. 5 with the said deed claiming any rights in respect of the suit plot or seeking conversion of the suit plot, there is no hurdle with defendant no.5 executing the conveyance deed in favour of plaintiff no.2 on the basis of sale documents produced by plaintiff no.2. The DDA vide letter dated 29.07.2005 insisted that it must be informed about the status of the Writ Petition purportedly filed by some one claiming right CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 8 of 92 in respect of the suit plot and a letter dt. 09.09.2005 was also written by defendant no. 5 to plaintiff no.2.
(xiv) It is further averred that plaintiff no.2 has also filed a application for conversion of the suit plot from from lease hold to free hold plot in the office of defendant no.5 on 17.06.2005. Further, plaintiff on the directions of defendant no.5 vide order dated 09.09.2005, had also deposited a sum of Rs. 1,37,3000/ towards the conversion charges on 09.09.2005 itself.
(xv) It is further averred that in the Writ Petition, it was stated by the defendant no.1 that the suit plot originally belonged to plaintiff no.1 but falsely alleged that the same was sold by plaintiff no.1 to defendant no.2 through the said deed It was further alleged that the suit plot was further sold by defendant no.2 in favour of defendant no.3 vide GPA dated 09.05.2002 and, subsequently, in favour of defendant no.4 vide GPA dated 30.08.2001. It was further alleged that the suit plot was transferred by defendant no.4 to defendant no.1 vide GPA dated 18.03.2002. On the basis of said petition, for the first time, the plaintiffs came to know about the purported chain of sale from plaintiff no.1 to defendant no.1.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 9 of 92 (xvi) It is further averred that plaintiff no.2 immediately, went to the office of defendant no. 5 and apprised it of the actual facts. The defendant no.1 subsequently on 21.02.2006 filed an application for conversion of the suit plot from lease hold to freehold.
(xvii) It is further averred that DDA called plaintiff no.1 and recorded her statement on 30.03.2006 wherein plaintiff no.1 stated that she sold the suit plot to plaintiff no.2 & executed GPA and agreement to sell etc. Plaintiff no.1 also filed declaration and affidavit with defendant no.5 stating therein that plaintiff no.1 had never executed any document in favour of any of the defendants and that she has transferred the rights in the suit plot in favour of plaintiff no.2.
(xviii) It is further averred that DDA rejected the application of defendant no.2 of the conversion of suit plot from leasehold to freehold on 26.04.2007 on the basis of statement of plaintiff no.1 and documents submitted including the report of the finger print expert. The defendant no. 5 did not take any action on the application of plaintiff no.2 for conversion and advised him to obtain a declaration from the Court of Law.
(xix) It is further averred that plaintiff no.1 is an old lady of 70 years, residing in Badarpur, New Delhi and it was not possible for her to CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 10 of 92 keep a constant watch on the vacant plot / suit plot. The defendant no.1 has taken the advantage of this fact and has illegally taken possession of the suit plot by constructing the boundary wall on the suit plot and further constructed two rooms. Hence, the present suit has been filed.
2. Defendants were served with summons for settlement of issues and written statement was filed on behalf of defendant no.1 wherein it was stated that no cause of action arose in favour of plaintiffs. Plaintiff have not come to the court with clean hands and have filed a false and frivolous affidavit before this court, therefore, a separate application has been filed against the plaintiffs under Section 340 Cr.PC.
3. It is submitted that the defendant no.1 has purchased plot way back in March, 2002 from defendant no.4 who has also handed over the possession of the suit plot to defendant no.1. The plaintiff no.1 sold the suit plot in 1997 to defendant no.2, who, in turn, sold the suit plot to defendant no.3. The defendant no. 3, lateron, sold the suit plot to defendant no.4. The plaintiffs have not pleaded that they were ever dispossessed by any of the defendants and plaintiff ever handed over the possession of the suit plot to defendant no.1. Therefore, the suit for possession is not maintainable against the defendants.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 11 of 92
4. It is further contended that plaintiffs have suppressed the material facts from the court, therefore, suit is liable to be dismissed. The suit is also barred under the provisions of The Limitation Act, the Transfer of Property Act and the Specific Relief Act. The defendant no.1 had purchased the suit plot by paying the valuable sale consideration to the previous owner and has right to enjoy the suit plot. The defendant no.1 submitted building plan with defendant no.5 which was sanctioned vide letter dated 24.12.2003.
5. It is further submitted that defendant no. 5 insisted upon the deposit of the penalty amount towards the delay in raising construction over the suit plot and consequently previous owner deposited ₹ 36,435 through demand draft bearing number 431217 and only, thereafter, defendant no.5 allowed the raising of construction over the suit plot. The defendant no.1 raised construction of two rooms, one kitchen, WC and boundary wall over the suit plot in terms of the sanction issued through letter dated 24.12.2003. The defendant no.1 is in actual and physical possession of the suit plot.
6. It is further submitted that plaintiffs have become dishonest and filed the present suit just to extract money from defendant no.1 in as much as plaintiff no.1 had sold away her rights in the suit plot way back in October November 1997. All the plots/immovable properties had been sold on the basis of GPA sale in or about 1997 in Delhi, CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 12 of 92 after taking valuable sale consideration, and when this fact came to the knowledge of defendant no.5, defendant no.5 came out with the scheme whereby defendant no. 5 allowed the conversion of leasehold to freehold under "freehold scheme". Defendant no.1 is the absolute owner of the suit plot in as much as plaintiff no.1 has received the valuable consideration for sale of the suit plot.
7. It is further submitted that plaintiffs have not disclosed that when the suit plot was sold to defendant no.2, at that stage also, husband of plaintiff no.1 also executed an undertaking confirming that he has no objection regarding sale of the suit plot to defendant no.2. Plaintiff no.1 has made an attempt to commit fraud upon this court as well as upon defendant no.1 with sole intention to extract money from defendant no.1. Admittedly, plaintiff no.1 is not in possession of the suit plot, however, plaintiff no.1 executed bogus/sham sale documents in favour of plaintiff no.2 in the year 2005 stating therein that she has not sold the suit plot to plaintiff no.2. The plaintiff no.1 has never been in possession of the suit plot since 1997, therefore, she was not competent to execute the sale documents in favour of plaintiff no.2. Defendant no.1 is in possession of the original sale documents such as possession letter, lease deed etc. executed by the previous owners from time to time transferring all their right, title or interest in the suit plot in favour of the successive buyers. The CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 13 of 92 defendant no.1 being successive buyer is in possession of the original documents in respect of the suit plot.
8. It is further submitted that defendant no.1 applied for conversion of the suit plot from leasehold to freehold after completion of certain formalities and deposited the conversion charges amount of ₹ 2,06,104 by way of demand draft. However, plaintiff no.1 through plaintiff no.2 filed certain documents with defendant no. 5 claiming that the suit plot was not sold by plaintiff no.1 to defendant no.2 and after spot inspection by defendant no.5, defendant no.1 was found in possession of the suit plot. Defendant no.1 is in possession of the suit property since 10.03.2002 when the possession was handed over to defendant no.1 by defendant no.4. The plaintiff have created false and bogus sale documents, therefore, defendant no.1 has filed a separate application under section 340 CrPC.
9. It is further submitted that BSES was intending to install substation near the suit plot, in the year 2004, and defendant no.1 filed a Writ Petition bearing number 17309/2004 titled as Virender Singh v. DDA before the Hon'ble High Court of Delhi. However, plaintiff no.2 filed an application dated 22.09.2006 in the said writ petition and claimed himself to be the owner of the suit plot, but he did not mention about the sale documents executed by plaintiff no.1 in favour of defendant no.2. Plaintiff no.2 also never claimed to be in CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 14 of 92 possession of the suit plot either since 1997 or from 2005. The suit deserves to be dismissed.
10. Defendant no.2 filed written statement and interalia submitted that plaintiffs have sought cancellation of sale documents executed between the defendants and as such valuation of the suit plot by the plaintiff at ₹ 21 lakhs is arbitrary and has been affixed only to create the jurisdiction to file the present suit before Hon'ble High Court of Delhi. The plaint is not supported by the affidavit of plaintiff no.1, therefore, the plaint is liable to be rejected. Plaintiffs are having no legally enforceable right in respect of the suit plot against defendant no.2, therefore, the suit is not maintainable. The suit is bad for non joinder and misjoinder of the parties. The plaintiff has also not approached this court with clean hands.
11. It is also submitted that suit is not maintainable in the present form and the suit itself is self contradictory in nature and, therefore, did not inspire any confidence, hence deserves to be dismissed. The plaint lacks material particulars regarding the relief claimed and as such the same is liable to be rejected being devoid of any cause of action. The defendant no.2 was the bona fide purchaser of the suit plot and as such he was a lawful owner of the suit plot and no claim can be put forth against defendant no.2. The defendant no.2 has perfected his title over the suit plot by way of adverse possession.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 15 of 92
12. It is submitted that the suit for declaration is barred by limitation as the same has been filed after the period of three years from the date of execution of the sale documents by plaintiff in favour of defendant no.2. Plaintiffs have no locus standi to file the present suit and there is no privity of contract between plaintiffs and defendant no.2. The suit is also barred under the provisions of Specific Relief Act. The suit is barred by the principal of res subjudice and res judicata. The defendant no.2 is also protected under section 53 A of the Transfer of Property Act (in short, the Act). The defendant no.2 has made all the payments to defendant no.5 in respect of the suit plot through demand drafts.
13. It is further submitted that the plaintiff no.2 is having criminal background and and he was a rightly implicated in a criminal case, therefore, he has remained in judicial custody for more than four years. The defendant no.2 has not made a single payment to defendant no.5 in respect of the suit plot. The averments regarding loss of perpetual lease deed by defendant no.1 in the first week of October 1997 is a lame excuse in as much as the plaintiff no.1 has sold the suit plot to defendant no.2, therefore, there was no question of loss of the perpetual lease deed of the suit plot. The plaintiff no.2 is trying to create false evidence by cooking story of loss of the perpetual lease deed. Neither plaintiff no.2 nor his brother Kartar Singh has deposited any amount with respect to the suit plot for and CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 16 of 92 on behalf of plaintiff no.1 with the defendant no.5. The publication regarding the suit plot by plaintiff no.1 in Hindustan Times on 06.08.2002 is also a lame excuse put forth by plaintiff no.1 to feign knowledge about the sale documents of the suit plot executed in favour of defendant no.2. The sale documents dated 11.05.2005 executed by plaintiff no.1 in favour of the plaintiff no.2 are sham documents and having no value in the eyes of law.
14. It is submitted that the plaintiff no.1 had very much visited the office of Sub Registrar for execution of the said deed along with other said documents and put her thumb impression on all the sale documents in the presence of witnesses and the said documents were registered by the ld.SubRegistrar. Plaintiff no.2 have fabricated the evidence in order to usurp the suit plot. The plaintiffs were aware of the sale of suit plot in favour of defendant no.2 and plaintiffs have intentionally given a false date of accrual of cause of action as 28.07.2005.
15. It is submitted that when a person goes to the court of registrar, RTI / LTI were taken in several places after establishing his/her identity for transfer of original papers of immovable property and, in the present case also, plaintiff no.1 was duly identified and she has put her signature/impression on the number of documents and thereafter, the sale documents executed and got registered. The CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 17 of 92 plaintiff no.2 has no role to play in the execution and registration of the said deed and of the sale documents which were executed in the presence of witnesses. The defendant no.2 is a man of criminal nature and he has failed to prove on record that he had ever paid any amount as sale consideration to plaintiff no.1 or whether he has deposited an amount of ₹ 5.5 lakhs in between 31.01.1994 till 30.1.1997 with defendant no.5. The amount was deposited with defendant no.5 through receipts which are in possession of the M/s Kay Cee Properties, and the said payment receipts were presented to defendant no.5 by M/s Kay Cee Properties at the time of execution of the perpetual lease deed in favour of plaintiff no.1 in the presence of attesting witnesses Sh. Kanwaljeet Sharma and Sh.Rajender Kumar.
16. It is further submitted that the plaintiff no.2 after coming out of jail on parole, must have heard about the sale of suit plot by plaintiff no.1, therefore, he concocted and created a false story detailed in the plaint. Plaintiffs in connivance with each other fraudulently created false documents to raise claim in respect of the suit plot. The said deed as well as the perpetual lease deed were registered on the same day i.e. 23.10.1997 in the office of Sub Registrar, who certified that these sale documents including the said deed were registered in the presence of plaintiff no.1. This fact established that Lakhmiri/plaintiff no.1 was present in the office of Sub Registrar on 23.10.1997. It is not possible that the perpetual lease deed registered CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 18 of 92 on 23.10.1997 is a valid documents while the said deed registered on the same day in the same office is a forged one. The plaintiff no.1 was unable to pay the charges to the DDA in respect of the suit plot, therefore, she sold the suit plot to Sh. Prem Bidhuri who, in turn, sold the same to M/s Kay Cee Properties and M/s Kay Cee Properties sold the same to defendant no.2.
17. It is further submitted that the story put forth by the plaintiffs that the original perpetual lease deed was misplaced, therefore, complaint on 12.10.1997 was made with police Station Badar Pur is basically a false concocted story in order to grab the suit plot in as much as the sale documents appears to have been fabricated by plaintiffs. Plaintiff no.1 kept sleeping on her rights and only on 10.10.2002 she had applied for the duplicate copy of the perpetual lease deed from the office of defendant no.5. The plaintiffs have chosen to remain silent for another 05 years upto 31.05.2007 till filing of the present suit, therefore, the claim filed by the plaintiffs through this plaint, at this belated stage, has become barred by limitation.
18. It is further submitted that plaintiff no.2 has alleged that he has made all the payments to defendant no. 5 but he has not been able to produce any challan/receipt in support of his claim in as much as all the receipts were in possession of M/s Kay Cee Properties and they got prepared the perpetual lease deed on the strength of these CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 19 of 92 payment/receipts. Plaintiff no.2 is having no personal knowledge regarding the presence of plaintiff no.1 in the office of Sub Registrar and execution and registration of the said deed as well as the sale documents in favour of defendant no.2.
19. After completion of the pleadings, vide order dated 27.08.2008, following issues were framed in the matter:
ISSUES
1. Whether the suit is barred by limitation ?
2. Whether the plaintiff had executed General Power of Attorney dated 23.10.1997 and other documents in favour of defendant no.2 and effect thereof ?
3. Whether the defendant no.1 is a bona fide purchaser for value and effect thereof ?
4. Whether the plaintiffs are entitled to decree of declaration and possession ?
5. Relief
20. After framing of issues, matter was listed for recording of plaintiff's evidence. Sh. Birender Singh has been examined as PW1 and testified through evidence affidavit Ex. PW1/A and reiterated the contents of the plaint and his testimony is not reproduced for the sake of brevity and will be averted to as and when required for recording findings on the issues and he has relied on following documents :
(i) The demand come allotment letter dt.21.09.2000 is Ex. PW1/1 (in affidavit it is Ex.PW1/2) CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 20 of 92
(ii) The NCR dated 11th of October 1997 is Ex. PW1/2,
(iii) The handwritten application filed before the DDA by plaintiff no.1 is Ex. PW1/3,
(iv) The letter dated 21.09.2001 is Ex. PW1/4,
(v) The challans are collectively submitted is Ex. PW1/5,
(vi) The relevant pages of Hindustan Times dated 06.10.2002 is Ex. PW1/6.
(vii) The application submitted with the DDA for supply of certified copies of original perpetual lease deed is Ex. PW1/ 7,
(viii) The copy of letter dated 30th of January 2003 addressed to SHO is Ex. PW1/8
(ix) The copy of letter issued by police to Deputy Director (LA) is Ex. PW1/9,
(x) The copy of covering letter of DDA dated 17.03.2003 is PW1/10,
(xi) Copies of the agreement to sell/GPA and SPA dated 11.05.2005 is Ex. PW1/11,
(xii) Copy of the GPA dated 23.10.1997 supplied by the Sub Registrar on 15.07.2005 is Ex. PW1/12,
(xiii) Report of the handwriting and fingerprint expert dated 28.07.2005 is Ex. PW1/13 (It is Ex.PW1/6).
(xiv) The reciept showing submission of application for conversion dated 17th of June 2005 is Ex. PW1/14,
(xv) The letter of DDA dated 29.07.2005 and 09.09.2005 are Ex. PW1/15, (xvi) The challan dated 09.09.2005 is Ex. PW1/16, (xvii) The writ petition filed by defendant no.1 against DDA is Ex.
PW1/17, (xviii) The applications for conversion the DDA's letter dated 20.03.2006 is PW1/18, (xix) The covering letter dated 12th of July 2006 along with the statement of Lakhmiri is Ex. PW1/19, (xx) The declaration dated 09.02.2007 is Ex. PW1/20, (xxi) The affidavit dated 21st of March 2007 is PW1/21, (xxii) The letter of DDA dated 26th of April 2007 is PW1/22, CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 21 of 92 (xxiii) The report of the CFSL dated 26th of February 2008 is PW1/23
21. Sh. Shyam Vir, son of late Smt.Lakhmiri/plaintiff no.1 has been examined as PW2, and testified by way of evidence affidavit Ex. PW2/A. PW2 has also deposed on the lines of the plaintiff no.2.
22. PW3 Sh.Deepak Jain, Handwriting expert has been examined as PW3 who has proved on record his report as Ex.PW1/6. Thereafter, plaintiff's evidence was closed and matter was listed for recording of defendants evidence.
23. Defendants were thereafter, called upon to substantiate this case by leading evidence. In order to substantiate its case, defendant no.1/Sh.Vijender Singh Solanki has been examined as DW1 and he testified through his evidence affidavit Ex. DW1/1 and reiterated the contents of his written statement and his testimony is not reproduced for the sake of brevity and will be averted to as and when required for recording findings on issues and he has proved on record the following documents :
1. Ex.DW1/2 is GPA dated 18.03.2002.
2. Ex.DW1/3 is agreement to sell dated 18.03.2002.
3. Ex.DW1/4 is Will dated 18.03.2002.
4. Ex.DW1/5 is receipt dated 18.03.2002.
5. Ex.DW1/6 is Special Power of attorney.
6. Ex.DW1/7 is Indemnity Bond.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 22 of 92
7. Ex.DW1/7A is possession letter.
8. Ex.DW1/8 is sanctioned plan by DDA.
9. Ex.DW1/9A to Ex.DW1/9D are photographs of the suit property and electricity meter.
10. Ex.DW1/10 is GPA dated 03.11.1997.
11. Ex.DW1/10A is GPA dated 06.05.2000.
12. Ex.DW1/10B is Will dated 06.05.2000.
13. Ex.DW1/10C is agreement to sell dated 06.05.2000.
14. Ex.DW1/10D is receipt dated 06.05.2000.
15. Ex.DW1/10E is GPA dated 06.05.2000 executed between Rajender Singh and Saumya Gupta.
16. Ex.DW1/10F is Indemnity Bond dated 06.05.2000.
17. Ex.DW1/10G is SPA dated 06.05.2000.18. Ex.DW1/10H is SPA dated 06.05.2000 (irrevocable)
19. Ex.DW1/10I is affidavit dated 06.05.2000 regarding claim.
20. Ex.DW1/10J is affidavit dated 06.05.2000 regarding execution of GPA and SPA.
21. Ex.DW1/10K is affidavit dated 06.05.2000 regarding agreement to sell.
22. Ex.DW1/11A is GPA dated 30.08.2001.
23. Ex.DW1/11B is Will dated 30.08.2001.
24. Ex.DW1/11C is receipt dated 30.08.2001.
25. Ex.DW1/11D is agreement to sell dated 30.08.2001.
26. Ex.DW1/11E is GPA dated 30.08.2001 executed between Jasbir Kaur Bedi and Saumya Gupta.
27. Ex.DW1/11F is SPA dated 30.08.2001 executed between Jasbir Kaur Bedi and Saumya Gupta.
28. Ex.DW1/11G is surrender deed dated 30.08.2001.
29. Ex.DW1/11H is Indemnity Bond dated 30.08.2001.
30. Ex.DW1/11I is affidavit dated 30.08.2001 regarding GPA.
31. Ex.DW1/11J is affidavit dated 30.08.2001 regarding claim.
32. Ex.DW1/11K is affidavit dated 30.08.2001 regarding agreement to sell.
33. Ex.DW1/11L is undertaking dated 30.08.2001.
34. Ex.DW1/12 is provisional letter dated 21.10.2002.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 23 of 92
35. Ex.DW1/13 is extension of time dated 25.10.2002.
36. Ex.DW1/14 is letter issued by DDA u/s 12 of DDA Act.
37. Ex.DW1/15 is sanctioned letter u/s 12 of DDA Act.
38. Ex.DW1/16 is challan receipt dated 04.09.2003.
39. Ex.DW1/17 is allotment letter of DDA dated 22.03.1990.
40. Ex.DW1/18 is allotment of alternative plots dated 20.12.1988 by DDA Land & Building.
41. Ex.DW1/19 is challan receipt dated 18.04.1990.
42. Ex.DW1/20 is letter of DDA dated 16.03.2001 for regularization of period.
43. Ex.DW1/21 is challan no. 174526.
44. Ex.DW1/22 is letter of DDA dated 27.03.2001 for extension of time regarding construction.
45. Ex.DW1/23 is receipt no. 236027 issued by MCD.
46. Ex.DW1/24 is receipt no. 808008 issued by MCD.
47. Ex.DW1/25 is receipt no. 745001 issued by MCD.
48. Ex.DW1/26 is challan no. 10164206 dated 21.02.2006.
49. Ex.DW1/27 is occupancy certificate dated 05.01.2004.
50. Ex.DW1/28 is possession letter issued by DDA dated 12.
02.1996.
51. Ex.DW1/29 is Map issued by DDA.
52. Ex.DW1/30 is perpetual lease deed dated 21.07.1997.
53. Ex.DW1/31 is undertaking of Sh. Megh Raj Chaudhary.
24. Plaintiffs have also examined one Sh. Rajinder Singh/defendant no.2 as DW2 through his affidavit of evidence Ex. DW2/A and the contents of the same have not been reproduced for the sake of brevity and he has relied on the following documents :
1. Copy of agreement to sell dated 01.11.1997 is MarkA,
2. Copy of the receipt dated 03.11.1997 is Mark B,
3. Possession letter dated 03.11.1997 is Mark C,
4. Special power of Attorney 23.10.1997 is Mark D,
5. Will dated 23.10.1997 is Mark A, CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 24 of 92
6. Challan dated18.04.1990 is Mark F,
7. Possession letter by DDA dated 05.02.1996 is Mark G.
8. Challan no. 087463 alongwith DD is Mark H,
9. Challan no. 087282 alongwith DD is Mark I ,
10. Challan no. 075939 is Mark J,
11. Challan no. 018538 is Mark K.
25. Sh. Saumya Gupta, has been examined as DW3 who testified through her evidence affidavit Ex. DW3/A and DW4 Smt. Jasbir kaur testified through her evidence affidavit Ex. DW3/A and has, deposed on the lines of defendant no.1.
26. Thereafter, defendants evidence was closed and matter was listed for final arguments.
27. I have heard the arguments advanced by Sh. C. Mohan Rao, Sr. Advocate and Sh. Lokesh Sharma, Advocate, ld.Counsel for the plaintiff, Sh. Ajay Chaudhary, Advocate ld.Counsel for defendant no.1, Sh. Manu Nayar, Advocate, ld.Counsel for defendant no.2, Sh. Nitin Garg, Advocate ld.Counsel for defendant no. 3 and Sh. P.S. Rana, Advocate ld.Counsel for defendant no. 4 and have perused the oral and documentary evidence led on record including the written submissions filed by counsel for the parties.
28. My issue wise findings are as under :
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 25 of 92 ISSUE no.2,3 & 4
29. Issue nos.2, 3 & 4 are overlapping each other and disposed of by this common order. Plaintiffs to prove their case led evidence and PW1/plaintiff no.2 testified through affidavit of evidence and re iterated the contents of plaint.
30. However, PW1 in crossexamination has testified that the demanded amount paid by him to DDA on behalf of plaintiff no.1 pursuant to oral agreement. Plaintiff no.2 was in judicial custody from 09.05.1996 to May 2000 and came out on parole in October 97 for a month. In October 1997, Smt.Lakhmiri/defendant no.1 informed about the execution of lease deed which was got executed through help of property dealers. Plaintiff showed some papers which were not actually perpetual lease deed, therefore, police complaint was lodged. In September 2002 property dealers were claiming right over the suit plot on the basis of forged documents. Plaintiff no.2 purchased the suit plot in 1994 from his sister and he handed over Rs.9,10,000/ to her. He has no document to show that Rs.9,10,000/ was paid in installments as required to be deposited with DDA. He had given Rs.5 lakhs at 1st instance but he has no document to show the said payment. That plaintiff no.1 deposited the payments with DDA by taking assistance of some person. He accompanied his sister and deposited the amount with DDA. The amount of Rs.5 lakhs was deposited with DDA in cash in several installments. He has a CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 26 of 92 record of 3 cheques of Rs.70,000/ each paid at the time of execution of GPA in the year 2005. That possession of the suit plot was delivered to plaintiff no.1 by DDA in 1997. He met only twice during parole in 1997 and plaintiff no.1 showed him the documents and some documents were missing and NCR was lodged by plaintiff no.1 and he accompanied her.
31. PW1 testified that he came to know that suit plot was purchased by defendant no.2 in the year 20012002. He told plaintiff no.1 in the year 200102 that the plot had been sold. He did not visit the suit plot after 1994. He never visited the suit plot after 1994. That he did not recollect whether Smt.Lakhmiri Devi had taken him to the suit plot. He did not know if defendant no.1 constructed 25% of the sanctioned plan in the year 200304 over the suit plot. He admitted that there were 2 rooms constructed at the suit plot in the year 2006.
32. PW1 testified that he did not know about the contents of his affidavit and about the instructions given by him to the counsel while preparing the affidavit. He admitted the photograph of Lakhmiri on SPA and WILL both dated 23.10.1997 executed by Lakhmiri in favour of Sh.Rajinder Singh/defendant no.2, the other photograph might be of Rajinder Singh. PW1 cannot say if perpetual lease deed Mark H was registered by Lakhmiri on the same date when documents Mark B, Mark F and Mark G were registered. If she had filed the suit for CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 27 of 92 cancellation of these documents, however, he do not know in which year she had filed the said suit. He was not a party to the said suit. The plaint bears his signature at point A.
33. PW1 admitted that the thumb impression is of Lakhmiri at point B on the last page of the plaint. Lakhmiri had put her thumb impression twice once at the premises before the High Court and 2nd time before Sh.Deepak Jain, handwriting expert. He stated that someone might have appeared with veil on her face before Ld. Joint Registrar while giving thumb impression. Lakhmiri never suffered from any paralytic attack. Lakhmiri was of sound mind in 2008.
34. He admitted that Lakhmiri had a paralytic attack on 22.01.2008 and she was admitted to ICU Holy Family Hospital. He did not recollect whether he visited Holy Family Hospital in 2008. He used to visit Holy Family Hospital whenever Lakhmiri used to fall ill and was admitted. He was not aware about the kind of illness suffered by Lakhmiri Devi. He did not recollet whether he ever obtained a certificate from the hospital regarding the illness of Lakhmiri Devi. Plaintiff nos.1 & 2 have common lawyer. All the applications are filed at the advise of the advocate. However, he used to be present with them whenever they consulted their advocate.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 28 of 92
35. PW1 testified that there was no other agreement with Lakhmiri prior to 2005. Smt.Lakhmiri had normal eyes, and she came walking in the court for putting a thumb mark. She did not come on a wheelchair. The Ld.Joint Registrar had seen her. He was not using any identity card of Lakhmiri. He cannot say which identity card was shown by Lakhmiri to Ld.Joint Registrar. He was not aware which identity card was being used by Lakhmiri during the lifetime. She had no driving license.
36. PW1 further testified that Sh. Omvir and Sh.Shyamvir used to bring her to DDA. Lakhmiri/defendant no.1 deposited the amount with DDA for the plot herself by taking help of someone, however, he did not know who paid the money to the Lakhmiri to be deposited with DDA. Rajinder Singh might have deposited the same with DDA at the instance of Lakhmiri. He did not know Sh.Rajinder Singh. He did not have knowledge as to why this thumb impressions and the other admitted thumb impressions on perpetual lease deed and on the plaint were not sent for comparison to CFSL.
37. PW1 further testified that he has never got Lakhmiri treated for any medical treatment. Her children used to take her for the same. He has no knowledge if Lakhmiri was taken to Lok Nayak Hospital in 2005. He has never asked even his children about the medical condition. Sh.C.Mohan Rao, his advocate has met Lakhmiri. He has CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 29 of 92 never made Lakhmiri meet any other lawyer other than Sh.C.Mohan Rao. He did not know any Ms.V.Shruti Rao. Plaintiffs came to their counsel and asked him to institute a suit on our behalf. He did not recollect if any advocate asked for affidavit. Lakhmiri Devi never accompanied him to the police.
38. PW1 further testified that Sh.Deepak Jain is a finger print expert. He went to him with some other advocate but he did not remember his name. He handed over him the documents which he had obtained from subregistrar office. He did not remember the details of the documents which he gave to him. He had seen his I card and asked his name and nothing else. Lakhmiri had normal eye sight and had no squint in her eyes.
39. PW1 further testified that his advocate had gone to the newspaper's office for getting the publication done. He did not give any authority to the lawyer to get the publication done in the Hindustan Times dt.06.10.2002. He has not filed any suit for specific performance in respect of the suit plot. Plaintiff no.1 never sustained any paralytic attack during the lifetime. He denied that plaintiff no.1 was not in a sense at the time of filing of the present suit and a thumb impression on the plaint and vakalatnama is of other person.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 30 of 92
40. Sh.Omvir, son of plaintiff no.1 did not come to the court to record his testimony and his brother PW2 Sh.Shyamvir has supported the case of his maternal uncle PW1 and in his examination, he testified that DDA executed lease deed in the name of his mother.
41. PW2 testified that his mother was assisted by some property brokers for execution of the lease deed. Later, PW2 and his mother realised that they were cheated and the papers handed over to his mother purported to be the perpetual lease deed were not actually perpetual lease deed papers, therefore, a complaint was made with the police in this regard.
42. In crossexamination PW2 testified that he is not aware about the contents of affidavit filed by him. The affidavit was prepared by DDA. He had never taken his mother to DDA, handwriting expert, any PS or to any other office of advocate. He had never got prepared any documents on behalf of his mother, nor he got prepared any suit. Present suit was prepared by his maternal uncle. Neither Omvir participated in any proceedings or got anything drafted. He sold the property to his mamaji for Rs.9.2 lakhs. He did not know as to which complaint he had referred in his examination in chief which have been filed by him. He had not seen the perpetual lease deed executed in favour of his mother.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 31 of 92
43. PW2, further testified in crossexamination that he will not be able to identify the thumb impression of his mother even if shown to him from court records. His mamaji is filing affidavit on behalf of his mother. His mother has not filed any affidavit. The suit has been filed by Sh.Birender Singh only. He had not taken his mother to Lok Nayak Hospital for her examination. It is his mama who had taken her in Lok Nayak Hospital. IA No.10243/09 was filed by his mama. All application regarding ailments on ground of medical have done by his mamaji Omvir and he did not produce any document.
44. PW3 Sh.Deepak Jain handwriting expert and the sum and substance of his deposition is as under: "He did not ask her identity proof to be sure whether she was Lakhmiri. He did not ask for any other document except mentioned in my report. He also did not remember whether she was accompanied by someone or not. PW1 stated that out of the two persons standing in the court room on the day of his examination, one is Sh.Birender Singh. He did not know Sh.Birender personally. Both came to him along with Lakhmiri. He denied that no lady ever approached him for the purposes of the report filed by him. He did not remember who approached him. He did not remember as to whether the lady whose thumb impressions had been examined by him, furnished personally her thumb impression before him or not. He cannot recognize the lady whose thumb impressions he had examined. He canot admit or deny whether the specimen thumb impression which he had examined are of Smt.Lakhmiri Devi or not."
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 32 of 92
45. During the course of arguments, ld. counsel for plaintiffs has raised following contentions:
(i) That the present suit is filed for seeking declaration that plaintiff no.2 is the absolute owner of the suit plot and plaintiffs have also sought declaration that the said deed and any other documents purportedly executed on the basis of the said deed is void ab initio.
(ii) That plaintiff no.1 during the pendency of the present suit died and her legal heir were brought on record. Plaintiff no.1 was owner of agricultural land which stood acquired and a residential plot/suit plot was allotted to plaintiff no.1 in terms of the recommendation letter dated 20.12.1988. Thereafter, DDA/defendant no.5 issued the allotment letter dated 04.11.1993 with a demand of an amount of ₹ 5,51,317/. Thereafter, plaintiff no.1 allegedly sold the suit plot to plaintiff no.2 to and plaintiff no.2 paid the consideration amount to defendant no.5 in between the period 31.01.1994 and 30.11.1995.
(iii) That the perpetual lease deed executed in favour of plaintiff on 21.07.1997 and immediately it transpired that the said perpetual lease deed was missing and a NCR was lodged in this regard on 12.10.1997. Thereafter, plaintiff no.1 had heard rumors around September 2002 that some persons are claiming to have purchased the suit plot from plaintiff no.1. Therefore, the plaintiff no.1 issued CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 33 of 92 General Notice to the public to put an end to such rumor in the newspaper Hindustan Times dated 06.10.2002. Plaintiff no.2 filed an application on 17.06.2005 with defendant no.5 for conversion of the suit plot from leasehold to freehold and, thereafter, it transpired that defendant no.1 is claiming right over the suit plot, as plaintiff no.2 was informed about filing of a writ petition bearing no. 17309/2004 claiming ownership over the suit plot.
Plaintiffs, thereafter, obtained the said deed executed by plaintiff no.1 in favour of defendant no.2 from the office of Sub Registrar on 15.07.2005 and plaintiff came to know that defendant no.2 is claiming ownership over the suit plot for having purchased the same from plaintiff no.1. Plaintiff no.1 is sure that she has never executed the said deed and, therefore, plaintiff no.1 got an opinion of the fingerprint expert regarding her alleged signature on the said deed and it was found that the said deed is containing the fingerprints of plaintiff no.1 having loop pattern, whereas the fingerprints of plaintiff no.1 are of whorl pattern as per finger print expert reports.
(iv) That defendant no.2 failed to show that defendant no.2 has purchased the suit plot in as much as defendant no.2 has made contradictory statements in his pleading, evidence by way of affidavit and in crossexamination regarding the persons from whom the suit plot was purchased, as to what was the said consideration of the suit CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 34 of 92 plot, to whom the said consideration was paid and when the said consideration was paid to plaintiff no.1. The pleadings as contained in written statement filed by defendant no.2 could not be reconciled with his deposition, which raises serious doubt regarding the sale documents of defendant no.2 and the only inference that can be drawn is that the said sale documents are forged and fabricated.
(v) That defendant no.2 is not sure from whom he purchased the suit plot in as much as in his written statement defendant no.2 has stated that the defendant no.2 purchased the suit plot from M/s Kay Cee Properties through Shri Brij Kumar and, Kanwaljeet Sharma. The said partners further claimed that they have purchased the suit plot from Sh.Prem Bidhuri, who in turn, purchased the suit plot from plaintiff no.1. The plaintiff no.1 presumably contacted the property dealer i.e. Sh.Prem Bidhuri and sold the plot to him for consideration. Sh.Prem Bidhuri, in turn, is stated to have sold the plot to M/s Kay Cee Properties who, in turn, sold it to the defendant no.2. However, in his evidence by way of affidavit, defendant no.2/DW2 has deposed that he purchased the suit plot from plaintiffs through Sh.Brij Kumar and Sh.Kanwaljeet Sharma.
(vi) That defendant no.2 has failed to prove as to what was the sale consideration for purchase of the suit plot in as much as defendant no.2 in his written statement has stated that plaintiff no.1 took the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 35 of 92 money from Sh.Prem Bidhuri, Sh. Brij Kumar and Sh.Kanwaljeet Sharma etc. Defendant no.2 in para 17 of the written statement alleged that "the defendant no.2 had purchased this property for ₹ 5.70 lakhs on 23.10.1997. Defendant no.2 filed a receipt purportedly executed by plaintiff no.1 showing that plaintiff no.1 received ₹ 5,70,000 from defendant no.2 in cash on 23.10.1997. However, defendant no.2 in his evidence by way of affidavit in para 15 and para 29 stated that he paid ₹ 5.70 lakhs to M/s Kay Cee Properties through pay orders for an amount of ₹ 3 lakhs and ₹ 2.70 lakhs. Defendant no.2 further stated that Sh. Kanwaljeet Sharma of M/s Kay Cee Properties paid the said amount to plaintiff no.1. The defendant no.2 alleged that M/s Kay Cee Properties took the money i.e. 5.70 lakhs and defendant no.2 further stated that they have already paid lots of money to plaintiff no.1. Therefore, all these contradictions are sufficient to demolish the case of defendant no.2 that he purchased the suit plot from plaintiff no.1.
(vii) That defendant no.2 has also admitted in crossexamination that he obtained the receipt showing the payment of ₹ 5.70 lakhs to plaintiff no.1, therefore, he had admittedly made payment to plaintiff no.1. However, defendant no.2 also admitted that M/s Kay Cee Properties was acting as property dealer as well as seller of the suit plot. Defendant has also averred in para no.10 of the written statement that payment to DDA were made by way of receipt issued CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 36 of 92 by DDA and all such receipts bears the signatures of persons who made these deposits. The said receipts were in possession of M/s Kay Cee Properties. These admissions made by defendant no.2 lead to infer that defendant no.2 is not sure who had purchased the suit plot for how much sale consideration from plaintiff no.1.
(viii) That defendant no.2, however, in evidence by way of affidavit has testified that he made payment to DDA through challan/demand draft etc. i.e. challan dated 27.01.1995 showing payment of ₹ 2 lakhs to DDA vide demand draft no.124885 dated 19.01.1995, challan dated 29.01.1995 showing payment of ₹ 1,58,000 wide DD dated 19.01.1995. However, these challans are not proved being only marked as H & J and furthermore, these payments are shown to have been made to DDA through demand draft but there is no link evidence that the amount was paid by defendant no.2 in as much as defendant has led no evidence that he paid the demand draft of ₹ 2 lakhs and ₹ 1.5 lakhs to DDA.
(ix) That the said deed, agreement to sell, receipt dated 01.11.1996, possession letter dated 03.11.1997, SPA dated 23.10.1997 and will dated 23.10.1997, were sent to CFSL along with admitted signature of plaintiff no.1 taken on 01.02.2008 in the presence of Ld. Joint Registrar as well as in the presence of counsel for the plaintiffs and counsel for defendant no.1 and defendant no.2.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 37 of 92 The reports also falsify the genuinity of the said sale documents and the said opinion has never been challenged and the defence taken by defendants that plaintiff no.2 managed the fingerprints of plaintiff no.1 by way of impersonation of plaintiff no.1 by some other lady is devoid of force as the said contention has already been rejected by ld. predecessor of this Court in terms of order dated 27.05.2007, while plaintiff no.2 was under crossexamination.
(x) That the pattern of the sale transactions which took place in respect to the suit plot also depicts that all the subsequent sale transactions are fake, the details of which are reproduced as under: Date Parties to Transaction Purported Consideration (Rs.) 01.11.1997 Plaintiff no.1 to defendant no.2 5,70,000 06.05.2000 Defendant no.2 to defendant no. 3 5,80,000 30.08.2001 Defendant no. 3 to defendant no. 4 7,00,000 18.03.2002 Defendant no. 4 to defendant no.1 7,10,000
(xi) That defendant no.2 has averred that Sh. Brij Kumar, Sh.Kanwaljeet Sharma, Sh.Rajender Kumar, Sh.Prem Bidhuri and Sh.Dheeraj Bidhuri are witnesses to perpetual lease deed, the said deed and other sale documents but none has been examined to prove the sale transactions.
(xii) That defendant no.2 was in touch with M/s Kay Cee Properties since 1992 for purchasing a plot of land, however, he waited for CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 38 of 92 purchase of the suit plot from 19921997, which fact itself lead to infer that transaction shown to have been entered into between plaintiff no.1 and defendant no.2 is not a genuine sale transaction.
(xiii) That defence of defendant no.2 is that plaintiff no.1 was not in a position to pay the consideration amount to DDA for purchase of the suit plot, and if plaintiff no.1 was not in a position to pay the said sale consideration amount to defendant no.5, there were enough dealers, who would have made outright purchase within few months of the allotment of the suit plot, and plaintiff no.1 need not have to wait for 4 years to sell the suit plot. The consideration amount of ₹ 5.51 lakhs in respect of the suit plot was paid by plaintiff no.2 to defendant no.5 and not by defendant no.2 or any other property dealer as alleged, otherwise, defendant no.2 would have certainly produced the necessary documents in this regard. If plaintiff no.1 had sold the suit plot to Sh.Prem Bidhuri/M/s Kay Cee Properties, the defendant no.2 would not have resorted to forgery of the sale documents.
(xiv) That claim of defendant no.2 having purchased the suit plot from Sh.Prem Bidhuri is absolutely false in as much as defendant no.2 has not made efforts to prove the purported sale between plaintiff no.1 and Sh.Prem Bidhuri. Even defendant no.2 has not testified that Sh.Prem Bidhuri has purchase the suit plot from plaintiff no.1. The defendant no.2 also failed to prove as to how M/s Kay Cee CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 39 of 92 Properties purchased the suit plot from Sh.Prem Bidhuri. The defendant no.2 did not make any payment to Sh.Prem Bidhuri, however, defendant no.2 admittedly obtained forged and fabricated receipt purportedly executed by plaintiff no.1 acknowledging that plaintiff no.1 has received an amount of ₹ 5.7 lakhs in cash on 23.10.1997.
(xv) That defendant no.2 has made reckless allegations of fraud against plaintiff no.1 that she has managed to give wrong fingerprint on the sale documents and levelled allegations of fraud against plaintiff no.2, however, defendant no.2 admittedly did not taken any action against M/s Kay Cee Properties, therefore, defendant no.2 in connivance with the M/s Kay Cee Properties and other property dealers have fabricated the said deed and other sale documents.
(xvi) That the defence raised by defendant no.2 regarding non submission of the pleadings by plaintiff no.1, the plaint in as much as is filed only by plaintiff no.2 and not by plaintiff no.1, however, this defence is contrary to the provisions of VI rule 15 CPC which provides for verification of the plaint by one of the plaintiffs. The plaint was verified by both the plaintiffs and affidavit in support of the plaint, duly authorized by plaintiff no.1, was filed by plaintiff no.2. Further, plaintiffs have filed the replication to the written statement of defendant no.2 and affidavit of both the plaintiffs were filed in support CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 40 of 92 of the replication, however, no issue has been framed in this regard. The defendants cannot be permitted to raise the contention which is not based on facts and it is also contrary to the specific provisions of law.
(xvii) The contentions raised regarding the identity of lady, who appeared before the ld. Joint Registrar on 01.02.2008 as some other lady appeared and impersonated Smt. Lakhmiri, therefore, fingerprint reports filed by CFSL cannot be read in evidence, is also devoid of force as this contention has already been rejected by the ld. Predecessor.
(xviii) That plaintiff no.1 has empathetically declared that the suit plot was sold to plaintiff no.2, therefore, the question of filing a suit for specific performance by plaintiff no.2 against plaintiff no.1 did not arise. Otherwise also, defendant no.2 ought to have filed a suit for specific performance against plaintiffs, however, defendant no.2 very well knew that he has not purchased the suit plot from plaintiff no.1 and defendant no.2 further knew that the sale documents are forged and fabricated, therefore, he has not filed a suit for specific performance.
(xix) That thumb impressions of plaintiff no.1 are having whorl pattern, whereas the thumb impression on the sale documents CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 41 of 92 produced by defendant no.2 are of loop pattern. However, both the reports, namely report filed by CFSL expert and private expert rendered the same opinion. Therefore, in view of this impeccable piece of evidence, the defence raised by defendant no.2 that plaintiff no.1 did not appear before ld. Joint Registrar on 01.02.2008 is having no force of law.
(xx) That matter was listed for further proceedings before ld. Joint Registrar on 23.01.2008 and it was informed that plaintiff no.1 had suffered heart attack in the morning and she was admitted in ICU and accordingly the matter was adjourned for 01.02.2008 for taking thumb impression of plaintiff no.1. In the meantime, suit was posted for hearing before Hon'ble High Court of Delhi on 28.01.2008, when the counsel for the plaintiffs, in the presence of counsel for defendants, made a statement before the court that plaintiff no.1 was discharged on the same day, and it will be possible for her to appear before the ld.Joint Registrar on 01.02.2008 and on 01.02.2008 the fingerprint of the plaintiff no.1 were taken in the presence of proxy counsel for plaintiffs, plaintiff no.1, her son Omvir, plaintiff no.2 and defendant no.1 and defendant no.2 (defendant no.1 was represented by Sh.A.Maitri, Advocate and defendant no.2 was represented by Sh.Hamid Sheikh, Advocate) respectively. Therefore, the allegations of defendant no.2 that some other lady in place of Lakhmiri/plaintiff CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 42 of 92 no.1 has appeared is devoid of force, as such the aspersions cast on the ld.Joint Registrar of the Hon'ble High Court of Delhi that fingerprint were taken without verifying the identity of Lakhmiri are patently malafide; and have been levelled only to cover up his act of forgery by defendant no.2 in making the sale documents in respect of the suit plot in his favour.
(xxi) That the contention regarding inadmissibility of finger print report by CFSL for nonexamination of the said expert is devoid of force as CFSL report can be read as per law. The fingerprint of plaintiff no.1, taken in the court before the ld.Joint Registrar on 01.02.2008, are not of "whorl pattern" whereas, the thumb impression on the sale documents of defendant no.2 are that of "loop pattern". Therefore, such fundamental difference regarding fingerprint of plaintiff, which can be seen by naked eye by anyone are writ large on record, as such, there was no need to examine the expert witness. In addition to it, the plaintiff had made efforts to summon the said witness, however, the said witness had shifted to USA after attaining superannuation as recorded in the ordersheet dated 14.05.2018, therefore, this report is admissible without examination on the said report. In this regard, reliance is placed upon Parukutty Amma & Anr. V. Tankan Amma & Ors 2004 SCC Online Ker 267.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 43 of 92 (xxii) That from the pleading and evidence of defendants it is clear that the defendants in collusion with the property dealers namely M/s Kay Cee Properties and Sh. Prem Bidhuri forged and fabricated the sale documents, however, none of the sale documents are executed by plaintiff no.1 in favour of defendant no.2. The thumb impressions of the plaintiff no.1 on the sale documents of defendant no.2 are a clear case of forgery. In addition to it, it is not the case of defendant no.2 that the sale consideration was paid to plaintiff no.1, otherwise, it was paid to M/s Kay Cee Properties but defendant no.2 failed to produce any witness from M/s Kay Cee Properties to prove that payments were made to plaintiff no.1 for purchase of the suit plot by defendant no.2, therefore, suit deserves to be dismissed.
46. Ld. counsel for defendant no.2 has raised following contentions:
(i) That application under Section 151 was filed by Sh. Omvir Singh at the instance of plaintiff no.2 alongwith affidavit through his counsel stating that plaintiff no.1 suffered a paralytic attack on 22.01.2008 and is in holy family hospital ICU and it is unlikely that defendant no.1 would survive or recover from paralytic attack. It was further stated in the said application that she is suffering from seizure disorder and cannot be produced in court meaning thereby that plaintiff no.2 concealed the fact that plaintiff no.1 was suffering from CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 44 of 92 complete memory loss and was of unsound mind and on this ground, this suit deserves to be dismissed.
(ii) That some lady had been produced with a veil by alleging her to be plaintiff no.1, who had given her thumb impression in as much as plaintiff no.2 was having record of the ailment of plaintiff no.1 i.e. medical certificate of Maulana Azad Medical College wherein plaintiff no.1 was reported to be of unsound mind, disoriented, unable to recognise family members, old case of brain refuted haemotoma treated at AIIMS and holy family hospital. The facts of medical condition has been concealed by defendant no.2 from this court at the time of filing of suit. Therefore, plaintiff no.2 not only tried to concealed material facts but also committed fraud upon this court.
(iii) That plaintiff no.1 was of unsound mind at the time of filing of the suit, therefore, IA 10243/2009 i.e. application under order 32 Rule 15 has been filed by Sh. Omvir, son of plaintiff no.1 along with his affidavit for appointing him as Guardian of plaintiff no.1 through Advocate stating that plaintiff no.1 suffered paralysis and Lok Nayak Hospital has declared her of unsound mind suffering from low IQ after medical examination. Rejoinder has been filed by Omvir to the application under order 32 rule 15 CPC but no specific denial was made that Lakhmiri/plaintiff no.1 was not of unsound mind soon after CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 45 of 92 the death of her husband on 23.04.2004. However, application has been filed by plaintiff no.2 to summon account opening of the husband of plaintiff no.1 which was dismissed holding that documents can't be called until the application order 32 rule 15 CPC is disposed off and plaintiff no.2 had no locus standi and directions has been given to Ld.Joint Registrar to examine plaintiff no.1 order 32 rule 15 CPC. This conduct of plaintiff no.2 lead to infer that plaintiff no.2 was having very much knowledge of mental condition of plaintiff no.1, which he failed to disclose before this court.
(iv) That in the meantime plaintiff no.1 died in the year 2011 and an application dated 07.07.2011 under order 22 rule 3 CPC has been moved by the same Advocate on behalf of legal heirs of plaintiff no.1 for substitution of LR's of plaintiff no.1. But Sh.Omvir (son of Lakhmiri) did not sign the said application nor filed any affidavit with that application. Furthermore, his evidence was filed by way of affidavit but he was dropped by the plaintiff and he did not appear in the witness box for the reasons best known to plaintiff no.2. Therefore, adverse inference is to be drawn against the plaintiffs.
(v) That identity of plaintiff no.1 was never established on record, and fraudulent actions has been committed by plaintiff no.2 during the pendency of the present suit in much as plaintiff no.2 produced some CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 46 of 92 lady in a veil on 01.02.2008 to give her thumb impression on behalf of plaintiff no.1 and Sh.Omvir, son of Lakhmiri, who was not a party, marked his attendance. The identity of the lady had not been ascertained by any identity proof in as much as one proxy counsel who was not authorised by the plaintiffs by way of vakalatnama appeared, and a proxy counsel for defendant no.2 appeared, but he had never seen plaintiff no.1, and as such had no role to identify the said lady. Strangely enough, the thumb Mark on the plaint and vakalatnama, which are alleged to be of plaintiff no.1, and the registered perpetual lease deed in favour of plaintiff no 1 by the DDA were not sent to the forensic Department for comparison, which were having the admitted thumb marks of plaintiff no.1. Otherwise, the expert who gave the report was not produced in witness box for the purposes of cross examination, therefore, his evidence cannot be considered.
(vi) That defendant proved the agreement to sell dated 16.07.1996 (Ex. DW1/2) as well as the other receipt/DD/cheque whereby the amount was paid for and on behalf of plaintiff no.1 by Prem Bidhuri/defendant no.2 and the said document depicts that the sale consideration was paid to the plaintiff no.1 by defendant no.2 and payments have also been deposited by defendant no.2 with DDA/defendant no. 5 for and on behalf of plaintiff no.1. Therefore, CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 47 of 92 this impeccable evidence proved the genuineness of the sale documents executed in favour of defendant no.2.
(vii) That the plaintiff no.1 has not filed an affidavit along with plaint verifying the same as per the mandate of Section 26 (2) CPC and Order 6 Rule 15 (4), which defect would render the plaint as no legal tendering of the plaint and suit deserves to be dismissed on this ground alone. In this regard, he relied upon Union of India & Ors. Vs. Shanti Gurung & Ors. 2014 0 Supreme (Del.) 700, Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors., 2006 (2) Supreme 251, Alka Kasana Vs. Indian Institute of Technology 2015 0 Supreme (Del) 2373 and Pravesh Kumar Sachdeva v. State of U.P., 2018 (10) SCC 628.
(viii) That the plaintiffs could only seek declaration and cancellation of document in favour of defendant no.2 and other defendants and the said relief has not been sought and the period of limitation for said relief already expired, therefore, suit for declaration without seeking relief of cancellation of sale documents is not maintainable. In addition to it, the plaintiff no.1 had never challenged the said deed and other sale documents executed in favour of defendant no.2 by seeking cancellation and declaration thereof as null and void. In this regard reliance is placed upon Suhrid Singh @ Sardool Singh Vs. CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 48 of 92 Randhir Singh 2010 (2) Supreme 670 and Jhang Biradari Housing Residents Society Vs. Bharat Bhushan Sachdeva & Ors. 2015 0 Supreme (Del) 240, Mahender Kehar v. Skyland Builders Pvt. Ltd., 2019 AIR (Del) 145, Mohd. Aziz v. Riyazuddin, 2019 Supreme (Del) 1884 & Satya Pal Anand v. State of M.P. 2015(15) SCC 263.
(ix) Furthermore, such challenge is barred by the provisions of Section 91 & 92 of the Evidence Act. Reliance is placed upon MMTC Ltd. v, Anglo American Mettalurgical Coal Pvt. Ltd., 2020 Supreme (DEL) 176 & Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, in order to submit that it is a general and most inflexible rule that that wherever written instruments are appointed, either by requirement of law or by the contract of parties, to be repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them.
(x) That plaintiff no.1 did not file the present suit in as much as thumb impression of plaintiff no.1 on the plaint and vakalatnama has not been proved to be that of plaintiff no.1 and no efforts have been made by plaintiff no.1 to get the said thumb marks compared with the thumb marks of plaintiff no.1 on admitted perpetual lease executed CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 49 of 92 by defendant no. 5 in favour of plaintiff no.1. Thumb impression need to be identified and court is also required to verify documents before passing of any order. In this regard, reliance is placed upon Chamkaur Singh Vs. Mithu Singh 2014 2 CurCC 285, 58, Madan Lal & Anr. v. Rajesh Kumar, 2005 (4) RCR (Civ) 72 and judgment in WRITB No. 65983 of 2013 Smt. Indrawati Devi Vs. The DDC, Gorakhpur & Ors. passed by Hon'ble High Court of Allahabad.
(xi) That plaintiff no.1 was of unsound mind and had lost her memory since the year 2004, when her husband expired and this fact has been concealed by plaintiff no.2; but it was revealed during the pendency of the present suit in as much as son of plaintiff no.1 had moved an application under Order 32 Rule 15 CPC along with medical certificate issued by Govt. Hospital. Therefore, there was no plaint on record for and on behalf of plaintiff no.1 as per the mandate of Order 32 Rule 15 CPC. In this regard, reliance is placed upon Shyama Pahwa Vs. Narendera Pratap Bhalla 2018 0 Supreme (Del) 84.
(xii) That plaintiff no.1 has never appeared has as witness till she expired on 13.05.2011, whereas the issues were framed in 2008. Son of plaintiff no.1 namely Omvir who is the alleged attesting witness to CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 50 of 92 the sale documents executed by plaintiff no.1 in favour of plaintiff no.2 has failed to appear, despite filing his evidence affidavit, to prove his case and adverse inferences is to be drawn against plaintiffs. In this regard, reliance is placed upon Vidhyadhar Vs. Mankikrao AIR 1999 SC 1441 and Janki Vasudev Bhojwani Vs. Indusind Bank Ltd. 2005 (2) SCC 217.
(xiii) That the registered documents, namely, the said deed was executed in favour of defendant no.2 by plaintiff no.1 and the limitation for seeking declaration/cancellation of registered documents as null and void is three years. The fraudulent misrepresentation to the character of the documents will render sale documents void but fraudulent misrepresentation to the contents of a document will render it only voidable. In addition to it, the registered documents having presumptive value more truth that of the notarised documents. In this regard, reliance is placed upon Prem Singh & Ors. Vs. Birbal Ors. AIR 2006 SC 3608 and Minu Chibber v. Lt.Col.(Retd.) S.S.Chibber 2014 0 Supreme (Del) 2192.
(xiv) That whenever the document is registered, the date of registration of such documents become the date of deemed knowledge for the party, who has executed such registered document, and in other cases, where the said fact could not be CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 51 of 92 discovered by due diligence then deemed knowledge would be attributed to the plaintiffs because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge of execution of such documents. In this regard, reliance is placed upon Smt. Dilboo (dead) by LRs. v. Smt. Dhanraji (dead) & Ors. AIR 2000 SC 3146.
(xv) That registered documents have been executed by plaintiff no.1 in favour of defendant no.2 which are anterior in time to the sale documents allegedly executed by plaintiff no.1 in favour of plaintiff no.2 and, therefore, would prevail upon the said forged and fabricated of plaintiff no.2. In this regard, reliance is placed upon Rakesh Juneja Vs. Baba Chakravorty Darvesh, 1998 0 Supreme (Del) 801.
(xvi) That the said registered deed and other sale documents are sufficient to convey legal title to the defendant no.2 and possession of defendant no.2 could not be disturbed by virtue of Section 53A of the Transfer of Property Act. In this regard, reliance is placed upon Gurmeet Kaur Vs. Harbhajan Singh & Anr. 2017 (241) DLT 339 and Shrimant Shamrao Suryanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi 2002(3) SCC 676.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 52 of 92 (xvii) That burden of proof that the said deed including other sale documents executed by plaintiff no.1 in favour of defendant no.2 were forged and fabricated, was on the plaintiffs, however, no evidence has been led by plaintiffs to prove the said fact. Therefore, burden of proof to prove the said fact is upon the plaintiffs which they fail to shift as such suit deserves to be dismissed. In this regard, reliance is placed upon Anil Rishi Vs. Gurbaksh Singh SLP (Civil) No. 5963 of 2006 and Harish Mansukhani Vs. Ashok Jain (2009) 109 DRJ
126. (xviii) That plaintiff no.2 is not a bonafide purchaser in as much as there is a legal presumption that plaintiff no.2 was having notice as per Explanation II appended to Section 3 of the Act, which provides that subsequent purchaser should make an enquiry at the time of purchase. The claim of plaintiff no.2 being bonafide purchaser of the suit plot, therefore, deserves to be rejected. In this regard, reliance is placed upon Har Narain (dead) by Lrs. Vs. Mam Chand (dead) by Lrs. & Ors., R.K. Mohammed Ubaidullah & Ors. Vs. Hajee C. Andul Wahab (D) by Lrs. 2000(5) Supreme 147, Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058.
(xix) That the suit is barred by limitation in as much as on a meaningful reading of the plaint there is no cause of action either in CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 53 of 92 favour of plaintiff no.1 or plaintiff no.2, therefore, even the plaint is liable to be rejected. In this regard, reliance is placed upon Minu Chibber Vs. Lt Col S.S. Chibber 2014 0 Supreme (Del.) 2192.
(xx) That when one party stands to the other in a position of active confidence, the burden of proving good faith is to be on a party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest of the person given to his care; and the court watches all the transactions between such persons, so that the protector may not use his influence to his advantage, and when the party complaining shows such relation, the law presumes everything against the transaction and onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable. The plaintiff no.2 knew that plaintiff no.1 was not of sound mind as per the legal proceedings including the application moved by Sh. Omvir Singh, son of plaintiff no.1 and this fact lead to conclude that plaintiff no.1 was of unsound mind and plaintiff no.1 being in active confidence of plaintiff no.1 was in a position to dominate the will of plaintiff no.1 and by exercise thereof, plaintiff no.2 has got executed the sale documents in his favour from plaintiff no.1 and the said sale documents are null and void. In this regard, reliance is placed upon Krishnamohan Kul @ Nani Charankul & Anr. Vs. Pratima Maity & Ors. 2004 9 CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 54 of 92 Supreme Court 468, Laxmi & Ors. Vs. Muthusamy 53, 2002 (2) SCC 440.
(xxi) That the case of the plaintiffs is based on falsehood and it is to be thrown out at any stage of litigation. It is imperative that pleadings and all other representations before the court should be truthful and therefore, fraud committed by plaintiff no.2 in fabricating the sale document amount to criminal contempt and the suit is to be thrown out at the outset. In this regard, reliance is placed upon A Shanmugam Vs. Ariya K.R.K.M.N.P.Sangam, AIR 2012 SC 2010, Maria Margarida Sequeria Femades Vs. Erasmo Jack De Sequeria (D) 2012 3 SCALE 550, Dalip Singh Vs. State of UP 2010 (2) SCC 114.
(xxii) That plaintiff no.2 and his witnesses has made admissions and such admissions are binding upon them and in addition to that, the said admissions contradict the documentary evidence placed on record. Therefore, the suit deserves to be dismissed on the basis of such admissions made by plaintiff no.2. In this regard, reliance is placed upon Nathoo Lal v. Durga Prasad AIR 1954 SC 355, Nagindas Ramdas v. Dalpatram Iccharam AIR 1974 SC 471, Basant Singh v. Janki Singh AIR 1967 SC 341.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 55 of 92 (xxiii) That the suit for specific performance, if any, to be filed by plaintiff no.2 is barred by limitation, therefore there is no cause of action in favour of plaintiff no.2. In this regard, reliance is placed upon Beermati Devi Vs. Chander Singh 2018 Supreme (Del) 2250, Bank of India Vs. Ashay D Narotam 2005 (11) SCC 520.
(xxiv) That agreement to sell did not confer any right or title in the suit plot in as much as the immovable property can be transferred by way of sale as provided under Section 54 of the Act. In this regard, reliance is placed upon Suraj Lamps Vs. State of Haryana 2012 AIR SC 206.
(xxv) That defendant no.2 is the ostensible owner as per section 41 of the Act and documents executed by plaintiff no.1 in favour of plaintiff no.2, even if presumed to be genuine, though not admitted, the right of the defendant no.2 in respect of suit plot will prevail over the right of plaintiff no.2 as per Section 41 of the Act. In this regard, reliance is placed upon Hardey Singh Vs. Gurmail Singh 2007 AIR SC 1058.
(xxvi) That no sale consideration has admittedly been paid by plaintiff no.2 to plaintiff no.1 in respect of the purchase of the suit plot. Therefore, there is no sale in the said transaction as per Section 54 of CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 56 of 92 the Act. In this regard, reliance is placed upon Kewal Krishan Vs. Rajesh Kumar 2021 8 Supreme 252.
(xxvii)That plaintiff no.2 was having efficacious remedy for seeking specific performance of the said agreement and he failed to seek the said relief. Therefore, the suit is barred by provision of Section 4(h) of the Specific Relief Act. In this regard, reliance is placed upon Shanti Devi Vs. Kailash Kumar Verma 2015 AIR Delhi 186.
47. The counsel for defendant no.1 has also argued on the lines of Counsel for defendant no.2 and such arguments are not reproduced for the sake of brevity.
48. It may be noted that plaintiffs in para 9 of the plaint have averred that plaintiff no.1 executed registered GPA and agreed to sell in favour of plaintiff no.2 on 11.05.2005 and plaintiff no.2 moved an application on 17.06.2005 for conversion of the suit plot from leasehold to freehold in his name before defendant no.5.
49. It may be relevant to mention here that the plaintiffs averred in para 10 of the plaint that plaintiff no.2 approached defendant no.5 and it was informed that case is pending regarding the suit plot and plaintiff no.2 was told that certain documents were executed in the office of Sub Registrar, SWIX, Delhi. The said documents were made CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 57 of 92 available by the ld. Sub Registrar on 15.07.2005 and thereafter, plaintiffs came to know on 15.07.2005 about the said forged deed dated 23.10.1997 purportedly executed by plaintiff no.1 in favour of defendant no.2.
50. The plaintiffs in para no. 11 of the plaint have averred that plaintiffs were shocked to know that the said deed got executed and registered without the knowledge of plaintiff no.1 and around that time, plaintiffs were shocked to know that a compound wall, two rooms and a WC were constructed over the suit plot. It is further averred that plaintiffs, on inquiries, came to know that defendant no.1 is a part of building mafia and the said building mafia is involved in submitting the false documents and taking forcible possession of the vacant suit plot. It may be noted that plaintiffs in para 20 of the plaint, have made averments regarding accrual of case of action in their favour.
51. The question arose as to whether the pleadings of the plaintiffs are sufficient to conclude that plaintiffs have been successful to plead that the said deed and the sale documents executed in favour of defendant no.2 are a result of fraud practiced upon plaintiff no.1 and the said sale documents are vitiated by fraud, misrepresentation, coercion etc. CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 58 of 92
52. Evidently, the allegations as levelled do not and rather fall short of the requirement of Rule 4 of Order 6 CPC, which reads as under:
"4. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
It is clearly evident from the aforesaid provision that as per Rule 4, particulars under dates and items are clearly required to be stated in the pleadings, interalia, in cases of misrepresentation, fraud, breach of trust, willful default on under influence. The object of instating on these particulars is two fold:
1. It enables the opposite party to know the case he has to meet with and:
2. It prevents the issue being enlarged and enables the court to determine the controversy at the earliest. Fraud is obtaining of an advantage by unfair or wrongful means.
53. It may be noted that under this rule, where fraud is alleged, fraud is necessarily has to be set out and stated in the pleadings which must be clear, definite, express and specific. It is not enough to allege fraud without stating particulars under dates and items as to such fraud. General allegations, however strong, if unaccompanied by sufficient particulars are not enough and the court will not take notice.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 59 of 92
54. It may be noted that plaintiffs, apart from using the word "forged documents" prepared by defendant no.2 have not given any specific particulars regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve the purpose of order VI rule 4 CPC and the party pleading must, therefore, be required to place the precise nature of the fraud, the manner of execution of such fraud and how the said fraud has been practiced upon the party.
55. It may be relevant to mention here that not only the pleadings regarding fraud or forgery is scanty but also there is no material on record including oral evidence, except the finger print reports, namely, Ex.PW1/13 & Ex.PW1/6, so as to belie the execution/registration of the said deed and other sale documents by plaintiff no.1 in favour of defendant no.2.
56. It may be noted that plaintiff no.2 as PW1 has testified that he purchased the suit plot from plaintiff no.1 orally but no date of such sale has been detailed in evidence affidavit Ex. PW1/A. PW1 further testified that he came out on parole in October, 1997, and plaintiff no.1 informed her that some property dealers have assisted her in execution of the lease deed in her favour and, thereafter, some property dealers approached her to sell the suit plot and plaintiff no.1 CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 60 of 92 had been given some documents supposed to be perpetual lease deed executed by defendant no.5, but which was not actually the perpetual lease deed. At that time, it was realised that the original lease deed has been stolen and therefore, DD in this regard was lodged.
57. It may be relevant to note here that neither plaintiff no.1 nor LRs of plaintiff no.1 have authorised plaintiff no.2 to depose for and on behalf of plaintiff no.1 nor plaintiff no.2 has placed on record any documents or testified that plaintiff no.2 was having special knowledge regarding the facts pertaining to the alleged forgery whereby the said deed and the sale documents were forged and fabricated by defendant no.2 in his favour. Otherwise, PW2 admitted that plaintiff no.2 has not been authorized to depose for and on behalf of plaintiff no.1.
58. So far as the contention regarding the unsoundness of mind of plaintiff no.1, is concerned, suffice it to say that in Shyama Pahwa (supra), an application under order XXXII rule 15 CPC was filed along with the suit and in such circumstances, suit was dismissed with liberty to file the same. However, in the present case, plaintiff no.1 has filed the suit in her own capacity, but, later on, her son Omvir had moved an application under order XXXII rule 15 CPC along with documents and statement of plaintiff no.1 was to be CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 61 of 92 recorded but, in the meantime, she expired and the said application become infructuous & accordingly dismissed and, later on, the legal heirs of plaintiff no.1 are brought on record. The said order has never been challenged by defendants at any point of time and attained finality and, therefore, facts of that case are distinguishable from the facts of the present case. Therefore, this contention is devoid of force and is hereby rejected.
59. So far as the contention regarding non examination of legal heirs of plaintiff no.1 to prove the alleged forgery committed by defendant no.2 by practicing fraud upon plaintiff no.1 is concerned, I found force in the said contention on neither plaintiff no.2 lead any evidence in regard/LRs of plaintiff lead any evidence. Therefore, there is no evidence from the side of plaintiff no.1 even to infer as to how and what circumstances fraud was practiced upon plaintiff no.1 which made her to execute the said deed and other sale documents executed in faovur of defendant no.2. As such, therefore, no material on record to prove the alleged forgery and in this regard the observations made in Vidyadhar (supra) were reiterated in Janki Vashdeo Bhojwani (supra), wherein in para no. 15, it has been observed as under : "15. Apart from what has been stated, this court in the case of 'Vidyadhar v. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness box and states his own CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 62 of 92 case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct."
60. Needless to say that ratio of Harish Mansukhani & Anil (supra) is to the extent that plaintiff has to stand on his own legs to prove his case and he cannot take benefit from the loophole in the case of defendant. Otherwise also, there is presumption in favour of the registered documents that they have been executed as per law as observed in para 26 of Prem Singh (supra).
"26. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."
61. A bare perusal of his testimony depicts that plaintiff no.2 has no knowledge of the sale transaction between plaintiff no.1 and defendant no.2 whereby the said deed along with the sale documents were executed in favour of defendant no.2 on 23.10.1997 i.e. on the same day when the perpetual lease deed was executed and registered in favour of plaintiff no.1 by defendant no. 5. Even PW2, son of plaintiff no.1 has not deposed anything regarding fraud practiced upon plaintiff no.1 at the time of execution and registration of the said deed in favour of defendant no.2. Apart from that, PW1 can neither depose on behalf of plaintiff no.1 as she had died in the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 63 of 92 year 2011 nor PW 2 has any special knowledge as to how and in what manner the said deed and the sale documents are executed/registered in the favour of defendant no.2 in as much as his deposition is laconic in this regard. It may be noted that plaintiff no.1 has filed pleadings as per law but shorn of details as per mandate of Order VI rule 4 CPC as observed above, however, the said pleadings are not sufficient to prove case of plaintiffs in as much as no evidence has been led by LRs of plaintiff no.1 regarding forging of the said deed and other sale documents because Sh. Omvir, son of plaintiff no.1 did not come forward to prove case of "forged and fabricated sale documents "as claimed by plaintiff no.1 and another son Sh.Shyam Vir's" deposition is not sufficient to hold that the sale documents including the said deed are forged and fabricated. Therefore, there is neither pleadings on behalf of plaintiff no.1 nor any evidence that the said deed and other sale documents in favour of defendant no.2 are forged and fabricated. The evidence of plaintiff no.2/PW1 is not sufficient to presume that plaintiff no.2 proved that the said deed and other sale documents are forged and fabricated.
62. So far as the contention raised by placing reliance upon Shanti Gurung (supra), Alka Kasana (supra) and Vidyawati Gupta (supra) regarding institution of the present suit without compliance of the provisions of Section 26 CPC, Order 4 CPC and Order 6 Rule 15 CPC is concerned, suffice is to say that the sum and substance of the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 64 of 92 ratio decidendi of these judgments is to the effect that procedural defects and irregularities are curable and should not be allowed to defeat substantiative rights or to cause injustice. Before proceeding further I would like to reproduce the process of order VI rule 15 CPC which reads as under: "15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
A bare perusal of this provision depicts that pleadings as much as affidavit in support of the plaint can be verified/signed by any of the parties to the suit. The ratio of these judgments are not applicable to the facts of the present suit in as much as the mandate of Order VI Rule 15 CPC is that every pleadings is to be verified by party or one of the parties pleadings or by some other person proved to the satisfaction of the court to be acquainted with the facts of the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 65 of 92 case and in the present case, plaint is verified by plaintiff no.1 with her thumb impression and by defendant no.2 appended his signatures on the plaint. In addition to it, the replication is supported by affidavits of plaintiffs, apart from that, no issue was framed regarding verification of the plaint and resultantly plaint is defective and, therefore, suit is not maintainable. As such, this contention is hereby rejected.
63. So fas as the contention regarding admissibility of the finger print/thumb impression reports Ex.PW1/13 and Ex PW1/6 in respect of the thumb impression of plaintiff no.1 on the said deed and other sale documents by placing reliance upon Chamkaur Singh(supra) and Madan Lal (supra) is concerned, suffice is to say that counsel for defendant no.2 had never raised doubts regarding the identity of plaintiff no.1 before ld. Joint Registrar, however, in view of the order dated 27.05.2017 passed by ld. predecessor of this court during the cross execution of PW1 whereby the said contention was rejected, the defendant no.2 cannot raise any dispute regarding identify of plaintiff no.1 when her thumb impression were taken before the ld.Joint Registrar, High Court of Delhi.
64. It may be relevant to mention here that the report Ex.PW1/6 filed by PW3 as a fingerprint expert is not reliable in as much as apart from the fact that PW3 is a private expert and had taken thumb CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 66 of 92 impression of plaintiff no.1 before filing of suit, the said witness during cross execution has admitted that he had not taken identity proof of plaintiff no.1. PW3 further admitted that he cannot admit or deny whether the specimen thumb impression which he had examined are of plaintiff no.1 or not. Therefore, his report is not reliable and needs to be discarded and is hereby discharged.
65. In the same manner, the report Ex.PW1/13 submitted by finger print expert, from CFSL is not reliable in as much as the said expert has not been examined as he had shifted to USA after attaining superannuation, however, no other witnesses, who may be conversant with the handwriting of the said finger print expert may have been summoned by plaintiffs, however, plaintiffs failed to lead such evidence. The contention of the Counsel for plaintiffs by placing reliance upon judgment Parukutty Amma (supra) is that without examination of the said expert, the said report Ex PW1/13 can be taken into consideration. In this regard, it may be relevant to note down the ratio of said judgment, which is reproduced as under: "6. The Finger Print Expert gave opinion which is marked as Ext.C4 stating that the fingerprint seen in Ext. A1 is that of the 1st defendant. Though objection was filed to the report of the finger print expert, the expert was not summoned for the purpose of crossexamination. PW3 who is the attesting witness stated that he had not seen Parukutty Amma signing Ext.A1. According to the plaintiff, he was telling a lie. The trial court found that though his CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 67 of 92 evidence will not help to prove Ext.A1, it will riot help the defendants in establishing that the document was not executed by her.
XXXX
12. In this connection, it is to be remembered that there is a difference between the opinion of the expert with regard to the handwriting and the opinion of the expert with regard to the thumb impression. There is no forgery possible with regard to the thumb impression whereas an expert in forgery can write exactly like the original handwriting of another person. This distinction is well recognised by the decision of the Supreme Court. In Jaspal Singh v. State of Punjab, AIR 1979 SC 1708, the Supreme Court has stated that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. This decision was followed by this Court in various decisions including the one by a Division Bench in James @ Chacko v. State, 1994 (1) KLJ 871, even in a case where the impression was smudged but not to the extent of impossibility of comparison. According to the learned counsel, whether it is thumb impression or handwriting, they are only relevant facts as contained in Section 45 of the Evidence Act and this Court has to arrive at an opinion after taking into account the report of the expert with the evidence.
XXXX
13. It is, no doubt, true that it is open to the defendant against whom the report is obtained to call the expert as a witness and crossexamine him to bring out the error in his opinion. Having failed in doing that, it is not possible to accept the argument of the learned counsel to reject the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 68 of 92 opinion. No such attempt was made in the courts below also....."
A bare perusal of relevant portion of this para depicts that in that case, the defendant (therein) had not made any attempt to raise such objection in the court below, otherwise, it was observed that it was upon the defendant (therein), when the report is obtained to call the expert as a witness and cross examine him to bring out the error in his opinion. However, in the present case, the defendant no.2 and defendant no.1 had made application raising objection to the said report Ex PW1/13. Furthermore, the said report is devoid of details as to how the said expert opined that the disputed thumb impression of plaintiff no.1 are not tallying with her admitted thumb impression. The relevant portion of the said report is reproduced as under:
"I. Questioned thumb impressions marked here as Q.2, Q.3, Q.4, Q.6, Q.7, Q.8, Q9, Q.10 & Q.12 are different from specimen right thumb impressions of Smt. Lakhmiri Devi marked here as RTI on the slips marked here as S.1 being of different pattern characteristics (Q.2, Q.3, Q.4, Q.6, Q.7, Q.8, Q9, Q.10 & Q.12 are of loop pattern with delta on the left side where as RTI is of whorls pattern. This forms the basis of the opinion that these prints are different)."
66. A bare perusal of relevant portion of this report depicts that this report is laconic and shorn of details as to how the said conclusion has been arrived at by the said expert. This report is not reliable and not impeccable so as to held that the thumb impression CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 69 of 92 of plaintiff no.1 has been forged by defendant no.2 as no reasoning has been assigned by finger print expert, which is a prerequisite before the said report is held to be reliable. In similar circumstance, the Hon'ble High Court of Punjab & Haryana in Madan Lal (supra) had observed that the ld.trial court has rightly discarded the finger print expert report and the relevant portion of the said judgment is reproduced as under:
"10. Having pondered over the respective submissions made by learned Counsel for the parties and going through the judgments and decrees passed by both the Courts below, I am of the view that no interference of this Court in exercise of jurisdiction under Section 100 of the Code would be warranted. It has been concurrently found by both the courts below on the basis of cogent evidence that decree dated 21.4.1988 has been obtained by the defendantappellants by practising fraud. A perusal of the observations made by the learned lower appellate Court in paras 29 and 30 to which reference has already been made in the preceding paras would show that in the proceedings which culminated in the passing of judgment and decree dated 21.4.1988, the plaintiffrespondent did not participate nor she had thumb marked either the written statement or the vakalatnama. The statements made by the expert witnesses PW6 Yashpal Chand Jain proving his report Ex.PW6/2 and Gopal Chand Sharma DW5 who proved his report Ex.DW5/A have been duly considered. It has been found that the disputed thumb impressions were not identical to that of admitted thumb impressions. The report of the expert produced by the defendantappellants has been discarded by disclosing cogent reasons because it was admitted by Gopal Chand Sharma DW5 that he had expressed the opinion by comparing four points of similarity in the ridges, whereas in accordance with the science of thumb impressions, similarity of CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 70 of 92 ridge characteristics of at least eight points is essential. The other report Ex.PW6/2 submitted by Yashpal Chand Jain PW 6 has been found to be authentic which also answer the requirement of the science of the thumb impressions which requires at least eight points of similarity of ridge characteristics."
From the above discussion, it can be safely concluded that the report Ex PW1/13 is not only proved as per law but also the said report is unreliable being unreasoned one.
67. So far as entitlement of the plaintiff no.2 to the suit plot on the basis of categoric admission of plaintiff no.1 that she had not sold the suit plot to defendant no.2 is sufficient to hold that plaintiff no.1 sold the suit plot to plaintiff no.2 in a legal manner, and that fact is sufficient to hold that plaintiff no.2 has become owner of the suit plot without seeking specific performance of the GPA/agreement to sell executed in his favour by plaintiff no.1 in the year 2005 is concerned. It may be relevant to mention here that the claim of plaintiff no.2 in respect of the suit plot is based on the GPA/agreement to sell executed by plaintiff no.1, however, admittedly plaintiff no.1 is not in possession of the suit plot since its purchase and there is no evidence on record that plaintiff no.2 ever happened to be in possession of the suit plot, therefore, plaintiff no.2 is not entitled to seek ownership in respect of the suit plot on the basis of the doctrine of part performance as provided under section 53A of the Act. As such CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 71 of 92 plaintiff no.2 is not entitled to seek relief in the present suit as per the mandate of Shanti Devi (supra) in as much as plaintiff no.2 never filed any suit for specific performance of agreement to sell executed in his favour by plaintiff no.1.
68. Furthermore, Sh. Omvir has not appeared to prove the sale documents of plaintiff no.2, therefore, adverse inference to be drawn against plaintiff no.2 that sale documents are not executed in favour of plaintiff 2 by plaintiff no.1. Even PW1 failed to prove that he has paid any consideration amount to plaintiff no.1, and PW1 had also paid any amount to defendant no.5 for and on behalf of plaintiff no.1 though his brother Kartar Singh as document Ex.PW1/2 did not depict that the amount detailed there was deposited either by PW1 or his brother Sh.Kartar Singh. As such plaintiff no.2 has not only failed to prove the sale documents executed in his favour by plaintiff no.1 but also he failed to prove the payment of sale consideration either to plaintiff no.1 or any part payment made to DDA/defendant no.5. In addition to it, the GPA sale is no sale as per mandate of Suraj Lamps (supra) wherein, it has been observed that GPA sale will continue to be valid i.e. document executed prior to 24.09.2001 when Section 53A of the Act was amended to require compulsory stamping and registration of the agreement to sell, therefore, the sale documents of plaintiff did not meet out the requirement of Section 53A of the Act. In the same manner, as per the mandate of Kewal CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 72 of 92 Krishan (supra) non payment of sale consideration will render the sale deed null and void.
69. It may be noted that plaintiff no.2 cannot be stated to be a bonafide purchaser in as much the factum of dispute regarding the suit plot was very much in his knowledge since October 1997 when he got lodged the DD regarding loss of the perpetual lease deed and as per the admission of plaintiff no.2/PW1 he knew the dispute about the suit plot in the year 2002 and even, thereafter, he has got transferred the suit plot in his favour from his sister/PW1. Therefore, he cannot be termed as bonafide purchaser of the suit plot as per mandate of ratio of law laid down in para no. 14 & 15 of Har Narain(supra). So is the ratio of Hardev Singh (supra).
70. I also find force in the contentions of counsel for defendant no.2 that sale documents registered in favour of defendant no.2 by plaintiff no.1 will prevail upon the subsequent documents executed by plaintiff no.1 in favour of plaintiff no.2 even though they may be registered. In this regard the observations made in Gurmeet Kaur (supra) is relevant, wherein in para 12(iii), it has been observed as under: "12(iii) At this stage the different logics of execution of a general power of attorney which is accompanying an agreement to sell is required to be noticed. In the first type of cases by a general power of attorney, the general power of attorney holder acts for and on behalf of the original CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 73 of 92 owner and therefore it is a practice in Delhi that sometimes a general power of attorney is executed in favour of a third person and in whose name the agreement to sell is not executed, and this is done so as to enable the third person to act as an independent person on behalf of the executant of the general power of attorney for the subsequent execution of the sale deed of the property in favour of the buyer under the agreement to sell and also for taking further steps with respect to the property transferred. In second type of cases a general power of attorney is not executed in favour of a third person but is directly executed in favour of the transferee under the agreement to sell, and who then acts in two capacities i.e one as a transferee of the immovable property having the benefit of the doctrine of part performance and another as the irrevocable attorney holder of the original owner and having rights under Section 202 of the Indian Contract Act. In the third type of cases, two general power of attorneys are executed by the transferor of an immovable property; one being in favour of the transferee and another being in favour of a third person; and which last/third position is the factual position in the present case. This third position has the advantages of both the first and second positions as stated above. In any case, and as stated above, any general power of attorney executed in favour of the respondent no.1/defendant no.1/Sh. Harbhajan Singh being Ex.DW3/1 will not give any rights in the suit property to the respondent no.1/defendant no.1 inasmuch as rights which are created are created in a transferee under an agreement to sell and which was the plaintiff Sh. Sarwan Singh, with the fact that as regards a general power of attorney it is only a general power of attorney given for consideration which is irrevocable under Section 202 of the Indian Contract Act and in the facts of this case admittedly no consideration is pleaded or proved to have CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 74 of 92 been passed from respondent no.1/defendant no.1 to the erstwhile owner Sh. Pawan Kumar. Hence, no rights in the suit property were ever transferred or created by the erstwhile owner Sh. Pawan Kumar in favor of the respondent no.1/defendant no.1. So is the ratio of case law Rakesh Juneja (supra)."
71. I also found force in the contention of the counsel for defendant no.2 that defendant no.1, who is subsequent vendee have right to retain the possession of suit plot by virtue of section 53A of the Act in as much as in Shrimant Shamrao Suryavandhi (supra), in para 20 and 21, it has been observed as under: "20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action.
21. In the present case, it is not disputed that the transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and still ready and willing to perform his part of the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 75 of 92 contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil vs. Surajbai Khushal Chand Lakkad & Ors. 1994 Maharashtra Law Journal, 1145, which, according to our view, lay down the correct view of law. In that view of the matter these appeals deserve to be allowed."
72. So far as the contention of the counsel for plaintiffs that defendant case is full of material contradictions and vital discrepancies which itself raises doubt regarding the factum of execution and registration of sale documents by plaintiff no.1 in favour of defendant no.2 is concerned, the said contention appears to be attractive, but the same is fallacious one in as much as no doubt there are some discrepancies in the deposition of defendant no.2/DW1 regarding the payment of sale consideration to plaintiff no.1 in as much as his pleadings are, at variance to some extent, with his deposition as recorded in terms of his evidence by way of affidavit. However, there is general corroboration in the testimony of defendant no.2 so far as payment of sale consideration paid to plaintiff no.1 by defendant no.2. So far as the contentions that the sale documents executed between defendants are forged on account of pattern of sale as well as for insufficiency of sale consideration is devoid of force in as much as the change of hands of the suit plot between defendants and the amount of sale consideration involved therein cannot lead to conclude that the said sale transactions are forged and fabricated.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 76 of 92
73. It may be noted that the defendant no.2 has testified that suit plot was purchased by Prem Mansukhani, who transferred the same to M/s Kay Cee Properties and he had purchased from M/s J.C. Properties but he further testified that he has paid the sale consideration to plaintiff no.1 even prior to the execution of the sale documents in his favour and in the receipt, amount has been stated to have been paid to defendant no.2 to plaintiff no.1 in cash. But plaintiffs has even not confronted defendant no.2 with the sale documents that plaintiff no.1 has never executed said documents in favour of defendant no.2 and further plaintiff no.1 has not received any consideration. It may be relevant to mention here that in view of mandate of Section 91 and 92 of the Indian Evidence Act, no oral evidence can be given to contradict the contents of written documents except as per provisos appended to Section 92 of the Indian Evidence Act and plaintiff has not brought their case under any of such proviso appended to Section 92 of the Indian Evidence Act so far as the non payment of sale consideration or other ground provided thereunder. In this regard observations made in Mohd. Aziz (supra) are apt which are reproduced as under :
"19. It is settled law as held in catena of judgments including in Roop Kumar vs. Mohan Thedani 2003 (6) SCC 595; Yash Chhabra vs. Maya Jain 2015 (151) DRJ 316 an oral plea to contradict written agreement is not tenable in terms of Section 91 of the Indian Evidence Act, 1872. "
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 77 of 92 So is the ratio of Mahender Kehar (supra) and MMTC Ltd. (supra). Otherwise also, plaintiff no.1 as per mandate of Satya Pal (supra) was not entitled to resort to unilaterally cancellation of the said deed and other sale documents executed in favour of defendant no.2.
74. The deposition of defendant no.2 lead to conclude that defendant no.2 has produced the suit plot from plaintiff no.1 through the agency of Prem Mansukahni as well as M/s Kay Cee Properties, otherwise, also the said deed the registered one as well as SPA is registered one as well as the undertaking given by husband of plaintiff no.1 and the registered documents as discussed above are having more presumptive value than the notarized one, therefore, it cannot be stated that defendant no.2 failed to prove that defendant no.2 has not paid sale consideration for purchase of the suit plot from plaintiff no.1. The defendant no.2 has prepared documents through which payment has been made for and on behalf of the allottee to DDA. Although, defendant no.2 has failed to prove that defendant no.2 has made such payment to DDA, yet from these documents, it can be concluded that payment has been made to DDA. The payment have admittedly not been made by plaintiff no.2 and furthermore, plaintiffs failed to give any plausible explanation as to how defendants came into possession of the original title documents of the suit plot as well as possession thereof. Defendant no.2 is the previous purchaser of CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 78 of 92 the suit plot, therefore, being a bonafide purchaser having priority rights under section 48 of the Act, has rightly been competent to execute the sale documents in favour of the subsequent vendee from whom defendant no.1 has purchased the suit plot.
75. So far as the burden to prove that the said deed and other sale documents executed by plaintiff no.1 in favour of defendant no.2 are null and void having been executed and registered by practicising fraud upon plaintiff is concerned, suffice is to say that plaintiffs have led no evidence except the self serving statement of plaintiff no.2/PW1 and PW2 (son of plaintiff no.1) and plaintiffs have not laid down any foundational facts to built the basic edifice that defendant no.2 by playing fraud upon plaintiff no.1 got executed the said deed and other sale documents in his favour.
76. So far as the contention regarding fiduciary relationship of plaintiff no.2 with plaintiff no.1, and therefore, the sale documents executed by plaintiff no.1 in favour of plaintiff no.2 stood vitiated by undue influence is concerned, suffice is to say that plaintiff no.2 has pleaded and tried to prove that plaintiff no.1, out of her sweet will, had executed the sale documents in his favour in the year 2005. However, Omvir son of plaintiff no.1 had moved an application under Order XXXII rule 15 CPC, which though admittedly have been dismissed, as plaintiff no.1 has expired before the inquiry under Order XXXII rule 15 CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 79 of 92 CPC had been completed and, therefore, LRs of plaintiff no.1 are brought on record which facts atleast lead to infer that plaintiff no.1 was not hale and hearty
77. It may be noted here that the contents of the said application depicts that plaintiff no.1 was of unsound mind since the year 2004 and the said applicant/Omvir, son of plaintiff no.1 has not been examined as a witness by plaintiff no.2, therefore, naturally adverse inference is to be drawn against plaintiff no.2. Furthermore, PW2 Shyam Vir son of plaintiff no.1 has testified that whatever the acts in the present proceedings were done, were done by his mamaji/plaintiff no.2. PW2 has further testified that his mother/plaintiff no.1 was taken by his mamaji to hospital and not by him nor by his brother Omvir Singh. However, plaintiff no.2 has tried to conceal such facts even during his deposition in as much as he has shown his oblivion to the ailment, with which plaintiff no.1 was suffering.
78. As a sequel to the above discussion, it can be safely concluded that plaintiff was was standing in a fiduciary relationship with plaintiff no.1 and was in a position to dominate her will, therefore, the burden of proof is on plaintiff no.2 that the sale documents executed by plaintiff no.1 in favour of plaintiff no.2 is not a result of undue influence exercised by him over plaintiff no.1 which burden plaintiff failed to prove, therefore, the sale documents of plaintiff no.2 are not proved CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 80 of 92 as being not vitiated by undue influence. So is the ratio of Krishnamohan Kul (supra) & Laxmi (supra).
79. As far as the contention that plaintiff no.2 has played fraud with this court, by forging the sale documents and by way of impersonation of some other lady as plaintiff no.1 at the time of taking her thumb impression is concerned, suffice is to say that the ratio of A. Shanmugam (supra) and Maria Margarida (supra) is to the effect that fraud vitiates every action, however, as observed in the foregoing paras that defendant no.2 failed to prove that some other lady instead of plaintiff no.1/Lakhmiri had appeared before the ld. Registrar, Hon'ble High Court of Delhi at the time of giving her thumb impression. Therefore, these judgments have no relevance out here.
80. In the same manner, the reliance is placed upon Nathoo Lal (supra), Nagindas Ramdas (supra), Basant Singh (supra) is concerned, suffice is to say that admission must be clear, unambiguous and unequivocal. However, from the pleadings of the plaintiffs, it can be atleast stated that there is no such admissions on the part of plaintiff no.2 in as much as plaintiff has only identified the photograph of Lakhmiri/plaintiff no.1 over the said deed executed by plaintiff no.1 in favour of defendant no.2. Viewed from any angle, such admission cannot tantamount to hold that plaintiff no.2 has admitted the case of defendants.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 81 of 92
81. At the sake of repetition, it is hereby noted that Rule 4 of Order VI of the Code of Civil Procedure requires that in all cases in which the party pleading relies on any fraud particulars (with dates and items, if necessary) shall be stated in the pleading. Therefore, it is necessary for the party pleading if it relies upon any fraud and/or collusion to give necessary particulars of fraud practiced with date/s. The particulars pleaded must be such as to give the nature of fraud and the manner in which it was practiced so as to enable the opposite party to know the case it is required to meet. The aforesaid averments in the plaint regarding fraud and collusion do not contain averment giving particulars of fraud and collusion in the plaint. Thus, in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it is not possible to hold that the plaint contains necessary averments as to fraud and collusion. Such a bald and general allegation without material particulars in the light of Rule 4 of Order 6 of the Code of Civil Procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practiced and who colluded with whom and in what manner and with what object or purpose etc., must be averred.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 82 of 92
82. From the above said discussion, it cannot be safely concluded that plaintiffs have led no evidence even to infer that said deed and other sale documents executed by plaintiff no.1 in favour of defendant no.2 are forged and fabricated and plaintiffs have not been found successful in disputing the execution and registration of the said deed and sale documents in favour of defendant no.2 and issues no. 2,3 &4 are decided in favour of defendants and against the plaintiffs.
ISSUE NO.1
83. So far as, issue no.1 is concerned, it is the contention of ld. Counsel for the plaintiff that plaintiff firstly time came to know about the said deed dated 23.10.1997 on 15.07.2005 when a certified copy of the said deed was supplied to plaintiff no.1 by the office of Sub Registrar and details of the claim of defendant no.1 to defendant no.4 came to the knowledge of plaintiffs through the contents of writ petition bearing number 17309/2004. Therefore, the suit is filed within the period of limitation as provided under Article 56 of the ScheduledI appended to the Limitation Act.
84. Contention of the counsel for defendant no.1 is that suit is to be regulated by article 59 of the schedule 1 appended to the Limitation Act and not by article 56 as contended by counsel for plaintiff and I found force in the said contention in much as in Prem Singh (supra), in para nos.12, 14 to 17, it has been observed as under: CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 83 of 92 "12. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.
XXXX
14. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief.
15. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is nonest in the eye of law, as it would be a nullity.
16. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be.
17. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. [See Unni & Anr. vs. Kunchi Amma & Ors. (1891) ILR XIV Mad.26) and Sheo Shankar Gir vs. Ram Shewak Chowdhri & Ors. [(1897) ILR XXIV Cal. 77]."
So is the ratio of Meenu Chibar (supra) and in Smt. Dilboo (supra), in para 20, it has been observed as under CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 84 of 92 "In the absence of any averment or proof, to show that the suit is within time, it is the Plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge."
85. In Seema Thakur (supra), Hon'ble High Court of Delhi in para 17 has interpreted the applicability of Article 58 & 59 of Schedule 1 of the Limitation Act to the suit seeking cancellation of documents or declaration of documents being null and void and relevant portion is reproduced as under: "xxxx Cause of action arises from the date of knowledge of existence of the documents and once the documents are known to the plaintiff admittedly since the year 2004, this suit had to be filed by the year 2007 for questioning the documents, but, the present suit is filed in the year 2010. I may note that the Supreme Court in the judgment in the case of Prem Singh & Ors. Vs. Birbal & Ors. (2006) 5 SCC 353 has held that there are two types of documents viz void documents and voidable documents. The Supreme Court in Prem Singh's case (supra) has held that there is no period of limitation with respect to void documents but where the documents are pleaded to be voidable then the suit under Section 31 of the Specific Relief Act, 1963 read with Article 59 of the Limitation Act has to be filed within three years of the fact on the basis of which plaintiff seeks CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 85 of 92 to cancel the documents comes to the knowledge of the plaintiff. Since the admitted position in the present case is that knowledge of the documents which are impugned by the plaintiff in May, 2004 in favour of the defendant no.3, Sh. Gopi Chand were to the knowledge of the plaintiff, Smt. Seema Thakur since May, 2004 itself, and which documents are claimed to be voidable, the ratio in the judgment in the case of Prem Singh (supra) will squarely apply and the suit will also be clearly barred by limitation being filed beyond three years as required by Articles 58 and 59 of the Limitation Act."
86. The contention of the counsel for defendant no.2 is that as per ratio of Jhang Biradari Housing Residents Society (supra) and Sardul Singh (supra), suit for declaration is not maintainable unless and until plaintiffs have sought cancellation of the said deed and sale documents executed in favour or defendant no.2 and subsequent sale documents executed by defendant no.2 in favour of other defendants, however, the said contentions appears to be attractive but the same is fallacious one in as much in Jhang Biradari case, the plaintiff (therein) has not sought the cancellation of the sale deed executed in favour of father of defendant (therein) in the year 1962 nor paid the court fee and in these circumstances in para 44, it has been observed as under: "44. The suit filed by the plaintiff for a declaration that the plaintiff is an owner without seeking any declaration for cancellation of sale deed is not maintainable at all. Despite claiming declaration, no relief sought for cancellation of sale deed dated 16th May, 1962. In the CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 86 of 92 absence of relief of cancellation of the sale deed, the suit itself is not maintainable. The suit is not maintainable so long as the sale deed stands, no relief of declaration can be granted to the plaintiff. The plaint does not disclose cause of action and is barred by law within the meaning of clause (d) of Order 7 Rule 11 CPC."
87. However, this position was clarified by Hon'ble Supreme Court in Sardul singh (supra), wherein para 6, it has been observed as under: "6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If `B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 87 of 92 Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
88. A bare perusal of this paragraphs depicts that as per mandate of this judgment, plaintiff no.1 was to seek cancellation of the sale documents executed by her in favour of defendant no.2 being executant, however, plaintiff no.2 was non executant to such sale documents executed by plaintiff no.1 in faovur of plaintiff no.2, therefore, he was entitled to seek declaration of such sale documents as null and void. It was then observed in the said judgment that form is different and court fee is different so far as the declaration or the cancellation of the documents is concerned, but in present case, the sum and substance of the case of the plaintiff is that sale documents executed in favour of other defendant no.2 by plaintiff no.1 and subsequent sale documents executed in favour of other defendants be declared null and void, therefore, it cannot be stated that by merely CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 88 of 92 not mentioning praying for cancellation of the sale documents and only making a prayer for declaration of such sale documents the suit is not maintainable. The suit is maintainable in the present form.
89. Section 17 of the Limitation Act 1963, provides effect of fraud so far as the limitation is concerned and the relevant provision is reproduced as under :
"17.- Effect of fraud or mistake. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production .......
Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 89 of 92 fraud and the other is discovery of such fraud. In the present case, since the plaintiffs failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiffs cannot be extended the benefit under the said provision.
90. It may be noted here that the Limitation Act, 1963 prescribes a time limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Furthermore, Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of suit Period of Time from which period begins to run limitation
58. To obtain any other Three years When the right to sue first accrues declaration. Three years
59. To cancel or set aside Three years When the facts entitling the plaintiff to have an instrument or decree or the instrument or decree cancelled or set for the rescission of a aside or the contract rescinded first become contract known to him.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 90 of 92 The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
91. It may be noted that plaintiff no.2 as PW1 has admitted in his crossexamination as detailed in the foregoing paragraphs of this judgment that the factum of execution of such sale documents by plaintiff no.1 in favour of defendant no.2 was very much in his knowledge in the year 2002, therefore, even if it is presumed that plaintiff was not having the knowledge of factum of execution and registration of the said deed and sale documents by plaintiff no.1 in favour of defendant no.2 in the year 1997 when they got lodged the DD in police station, even that, at least from 2002, it was very much within the knowledge of plaintiff that sale documents have been executed by plaintiff no.1 in favour of defendant no.2 and the period of 3 years as provided under Article 59 of the schedule 1 of the Limitation Act as well as the dicta of the law discussed above i.e. the prescribed period for filing of suit by plaintiffs expired in the year 2005, whereas the suit has been filed on 28.05.2007, therefore, the suit is hopelessly barred by limitation. This issue is decided in favour of defendants and against the plaintiffs.
CS No. 200/2016(517144/2016) Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 91 of 92 RELIEF
92. In view of the findings on issue nos. 1,2,3 & 4, I am of the considered opinion that plaintiffs have not been able to establish their case against defendants. The suit filed by the plaintiffs is accordingly dismissed.
Decree sheet be prepared accordingly File be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
Announced in the open court on KUMAR DAHIYA
Date:
01st Day of July 2022. DAHIYA 2022.07.14
12:37:16
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 200/2016(517144/2016)
Lakhmiri & Ors. v. M/s Bhanu Builders Pvt. Ltd & Ors.
Page no. 92 of 92