Delhi District Court
Sh. Sandeep Verma vs Sh. Vinod Kumar Mehta on 9 December, 2022
IN THE COURT OF SH. MANOJ KUMAR,
SCJ-CUM-RC (EAST), KARKARDOOMA COURTS, DELHI.
MCA SCJ No.6/17
CNR No.DLET03-001396-2017
In the matter of :-
1. Sh. Sandeep Verma,
S/o Sh. Dharam Singh
R/o 124-B, Pocket A-2, Type-II,
LIG Flats, Mayur Vihar, Phase-3,
Delhi-110096
...... Appellant
Vs.
1. Sh. Vinod Kumar Mehta
S/o Sh. Bakshi Ram
R/o P-122, Sector-XI,
Noida, U.P.
2. Sh. Shripal
S/o Sh. Soh Ram Singh
R/o 104, Indira Vihar
Khoda Colony, U.P.
3. BSES Yamuna Power Limited,
Through its CEO
Shakti Kiran Building,
Karkardooma, Delhi
..... Respondents
MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 1 of 18
APPEAL U/SEC. 104 CPC AGAINST THE ORDER/JUDGEMENT
DATED 10.08.2017
Date of Institution of Appeal : 12.09.2017
Date of reserve for judgment : 29.10.2022
Date of pronouncement : 09.12.2022
JUDGMENT
1. Present appeal was filed on behalf of appellant thereby challenging the order/judgment dated 10.08.2017 passed by Ld. Trial Court, vide which, suit of the plaintiff was dismissed. For removing any confusion, parties shall be referred with the same designation with which they have referred before Ld. Trial Court, in my subsequent paragraphs. Therefore, appellant herein shall be referred as plaintiff and respondents herein shall be referred as defendants, in my subsequent paragraph.
2. Before moving further, I must mention here the facts as mentioned in the Suit for permanent and mandatory injunction filed by plaintiff against defendants. Same are mentioned in brief below:-
"Plaintiff claims to be the owner and in possession of property bearing no.124-B, Pocket A-2, Type-II, LIG MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 2 of 18 Flats, Kondli, Gharoli, Mayur Vihar, Phase-III, Delhi- 110096 since purchase of the property on 10.05.2001. The suit property was alloted originally by DDA to defendant no.1, who in turn sold it to defendant no.2 Mr. Shripal by way of GPA, agreement to sale, affidavit, Will dated 05.12.2000 on consideration amount of Rs.4,50,000/-. Receipt dated 05.12.2000 was also executed in favour of defendant no.2. It is further averred that in April, 2001, defendant no.2 approached him intending to sell the suit property. Defendant no.2 at that time, told him that some payment of the DDA will still due and was required to be paid later, as there were chances of the government of the waiving some of the original costs, interest and other charges. Defendant no.2 also informed him that he has lost the original allotment letter and that he had a notary attested copy of it. When plaintiff raised questions over the same, defendant no.1 assured him by saying that he shall call the original allottee i.e. defendant no.1 at the time of final payment.
Plaintiff submitted that in April, 2001, defendant no.2 approached to the plaintiff with one Smt. N.R. Mehta, wife of defendant no.1, the original allottee, who also agreed with the version of defendant no.2. On this assurance of defendant no.2, plaintiff made complete MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 3 of 18 payment towards the sale of the suit property to defendant no.2 in the presence of Smt. N.R. Mehta and all documents for sale property were made on 10.05.2001 in the presence of two witnesses. The documents i.e. GPA, agreement to sale, will dated 10.05.2001 in favour of the plaintiff were duly notarized. Receipt for payment of consideration amount of Rs.5,20,000/- was executed by defendant no.2. Defendant no.2 also gave peaceful possession of the property on same day to the plaintiff. Plaintiff thus states that he has been in peaceful possession of the said property from the date of its purchase. Since February, 2011, plaintiff started residing at the said property. Defendants in collusion and connivance with the local property dealer wants to forcibly dispossess him from the suit property. Thus, on 21.10.2012, 22.10.2012, 06.11.2012, defendants along- with gunda elements arrived at the suit property and raised hue and cry and tried to forcibly dispossess the plaintiff from the suit property. Defendant no.3/BSES sent a false and frivolous notice to the plaintiff on 11.02.2014 and 25.02.2014, which though was duly replied by the plaintiff however, defendant no.3 despite the reply, disconnected the electricity of the plaintiff on 26.02.2014.MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 4 of 18
3. Defendant no.1 in his Written Statement took preliminary objections viz; plaintiff has suppressed material facts from the Court. Defendant stated that plaintiff was not the owner of the suit property and had fabricated documents in relation to the suit property in collusion with defendant no.2. He averred that plaintiff has no cause of action or locus standi to file the present suit. Defendant no.2 has broken the locks of the suit property and forcibly entered it. The electricity and water connection was previously in the name of defendant no.1 and plaintiff has dishonestly by means of the fraudulent documents got prepared the connection in his name. He denied any dealings with defendant no.2 or the plaintiff. Defendant no.3 in his written statement denied that the electricity connection in the suit premises was disconnected after giving any opportunity to the plaintiff. It is because the plaintiff failed to produce any document or respond to the aforesaid notice that the connection was disconnected. All other averments so made in the plaint are denied by the defendant. Defendant no.2 in his WS stated that suit was filed by plaintiff in collusion with defendant no.1 and that he had already sold the suit property to the plaintiff. He was not aware as to who was in possession and occupation of the property. He denied having approached to the plaintiff in April, 2001 and stated that it was in fact the plaintiff who MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 5 of 18 approached him. He denied the other averments of the plaintiff.
4. After completion of pleadings of the parties, following issues were settled :-
i) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for in prayer (a) ?
ii) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer (aa) ?
iii) Whether plaintiff is a trespasser in the suit property having entered into the suit property by use of force ?
iv) Whether the suit of the plaintiff is bad for non-disclosure of cause of action ?
v) Whether the property court fees has not been paid on the reliefs claimed? If yes, its effect ?
vi) Relief.
5. Plaintiff examined himself in evidence as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He relied upon the documents i.e. GPA dated 05.12.2000 Ex.PW1/1, Original agreement to sell dated
05.12.2000 Ex.PW1/2, original affidavit dated 05.12.2000 Ex.PW1/3, Original Will and receipt dated 05.12.2000 Ex.PW1/4, Original GPA dated 10.05.2021 Ex.PW1/5, Original agreement to sell dated 10.05.2001 Ex.PW1/6, Original Will dated 10.05.2001 Ex.PW1/7, Original receipt dated MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 6 of 18 10.05.2001 Ex.PW1/8 (OSR), Electricity bills Ex.PW1/10(colly), complaint dated 06.11.2012 Ex.PW1/12, notice dated 11.02.2012 Ex.PW1/13, reply of notice dated 18.02.2014 marked as mark-A (de-exhibited Ex.PW1/14), notice dated 19.02.2014 marked as mark-B (de-exhibited Ex.PW1/15), application dated 27.02.2014 marked as mark-B (de-exhibited Ex.1/16) and certified copy of order dated 12.03.2014 passed by Hon'ble High Court of Delhi Ex.PW1/17.
6. Plaintiff examined Sh. Bhagwati Prasad as PW2, who tendered his testimony by way of affidavit Ex.PW2/A.
7. Plaintiff's evidence was closed on 27.10.2016.
8. Defendant examined himself as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and replied upon the documents i.e. certified copy of conveyance deed 12.05.2010 Ex.DW1/1(OSR), copy of allotment letter dated 30.09.1996 and possession letter dated 02.01.1997 Ex.DW1/2 (OSR) (colly), copies of complaint dated 22.10.2012 and FIR No.359/12, PS New Ashok Nagar Ex.DW1/3(OSR), copy of letter dated 14.11.2012 Ex.DW1/4(OSR) (colly), copy of DVB receipt no.79295 dated 28.01.1997 Ex.PW1/5(OSR), copy of letter to BSES dated 30.10.2004 and March, 2007, electricity bill of November, 2003 and March, 2007 Ex.DW1/6, property tax receipt dated 29.06.2011 and 01.08.2012 Ex.DW1/7(OSR)(colly), copy of MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 7 of 18 consumer site report dated 20.10.2004 Ex.DW1/9, copy of report/opinion of Truth Labs dated 05.03.2014 Ex.DW1/1.
9. Defendant examined his brother Sh. Krishan Gopal mehta as DW1, who tendered his evidence by way of affidavit Ex.DW2/A. Defendant summoned Sh. A.K. Gupta, Director Truth Labs and examined him as DW3. He produced the office copy of the truth lab report no.TLD/QD/023/14 dated 05.03.2014 already Ex.DW1/10.
10. Defendant also summoned ASI Gyanender Singh, PS New Ashok Nagar and examined him as DW4. He brought the complete record of FIR No.359/12 and DD No.20A dated 20.10.2012, already Ex.DW1/3(colly). Lastly, defendant summoned Sh. Anil Kumar, LDC from the office of sub- registrar VII. DW5 brought conveyance deed already part of Ex.DW1/1 at page 2 & 3.
11. Defendant's evidence was closed on 12.07.2017.
12. After hearing final arguments, matter was reserved for judgment.
13. Vide judgment dated 10.08.2017, suit of the plaintiff was dismissed.
14. Against the said judgment, appellant/plaintiff filed the present appeal.
In the ground of appeal, appellant/defendant has claimed that Ld. Trial Court has wrongly held in para no.22 of the impugned order that plaintiff has not MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 8 of 18 explained as to why he never insisted upon either the original allotment letter or the conveyance deed, through he admits that the allotment letter is in possession of defendant no.1. It is stated hat plaintiff/appellant has never admitted that the allotment letter was in possession of the defendant no.1 and the said fact is crystal clear from para no.3 of the impugned order. It is further stated that Ld. Trial Court has failed to appreciate the fact that defendant no.2 has already admitted in his WS that he has purchased the property from the defendant no.1 and further he sold the same to the plaintiff. So, it is crystal clear that plaintiff is a bonafide purchaser of the property in question. Plaintiff/appellant contended that Ld. Trial Court ignored the contradictory testimonies of DW1 & DW2 regarding alleged possession of defendant no.1 over the suit property. It is further stated that Ld. Trial Court has completely ignored the provision of Section 35-A of CPC and in arbitrary manner imposed heavy cost of Rs.50,000/- upon the plaintiff/appellant. Ld. Trial Court has wrongly held in arbitrary manner that plaintiff is a trespasser in the suit property. It is further stated that nobody can be called as a trespasser merely on the basis that he purchased the property by way of agreement to sell and GPA.
MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 9 of 18
15. Defendant no.1 filed reply to the appeal and vehemently denied the allegations made by the appellant.
16. Arguments on appeal heard and matter was fixed for judgment. Written arguments on behalf of defendant Vinod Kumar Mehta also filed.
17. The main ground of the appeal is that Ld. Trial Court wrongly held in para no.22 of the impugned judgment that plaintiff has not explained as to why he has never insisted upon either original allotment letter or the conveyance deed, though, he admits that allotment letter is in possession of defendant no.1. It is contended by the plaintiff that he never admitted that the allotment letter was in possession of the defendant no.1.
18. The Ld. Trial Court in para no.22 of the impugned judgment clearly held that immovable property can be legally and lawfully transferred or conveyed only through a registered deed of conveyance. It is rightly held by the Ld. Trial Court that the documents relied upon by the plaintiff are merely notarized, these documents do not thus confer any right, title or interest in favour of the plaintiff, in respect to the suit property. The Ld. Trial Court correctly relied upon the decision of Hon'ble Supreme Court of India in "Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana & Anr." 2011 (4) Civil Court Cases 558.
MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 10 of 18
19. Plaintiff admitted in his cross-examination that defendant no.2 has not supplied any FIR/NCR regarding missing of allotment letter. PW1 deposed that copy of the application wherein defendant no.2 stated that he would get the missing documents remade, not placed on record as defendant no.2 never gave him the copy.
20. Thus, it is apparent that no satisfactory reason furnished by the plaintiff for not procuring allotment letter or the conveyance deed from the defendant no.2 at the time of purchase of the suit property. On the other hand, defendant no.1 duly proved the conveyance deed dated 12.05.2000 exhibited as Ex.DW1/1, allotment letter dated 30.09.1996 and possession letter dated 02.01.1997 exhibited as Ex.DW1/2 (colly). Moreover, defendant no.1 in evidence Ex.DW1/A specifically deposed that plaintiff in collusion with defendant no.2 trying to grab the property of the defendant no.1 on the basis of forged and fabricated unregistered documents.
21. Thus, the reasoning given by the Ld. Trial Court in para no.22 regarding the validity of the notarized document of plaintiff is correct and there is no infirmity and illegality in the said observation. MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 11 of 18
22. The another ground of the appeal is that plaintiff is the bonafide purchaser of the property in question and defendant no.1 indirectly admitted that defendant no.2/Shreepal was the owner of the suit property.
23. The argument of the Ld. Counsel for the plaintiff on the above point is wholly misconceived as mere denial of the suggestion by the plaintiff cannot be considered as an admission on the part of the defendant no.1. The Ld. Trial Court rightly observed in para no.22 of the impugned judgment that the notarized document of the plaintiff do not convey any right, title or interest in property in question. In para no.23 of the impugned judgment, the Ld. Trial Court rightly observed that documents Ex.PW1/9, Ex.PW1/10, Ex.PW1/11 pertains to the year 2011-2012. Plaintiff in his cross-examination stated that he started living in the property in the year 2011-2012. However, plaintiff failed to tell as to where he resided at the time the documents were executed or in the year after their execution. It is correctly held by the Ld. Trial Court that plaintiff has not placed on record the application or the response regarding inquiry about the status of the property from DDA. MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 12 of 18
24. On the other hand, as already discussed and correctly held by the Ld. Trial Court in para no.26 that defendant no.1 has proved the allotment letter, possession letter and conveyance deed. The conveyance deed also got proved through DW5. Thus, it is correctly held by the Ld. Trial Court that defendant no.1 through his title documents Ex.DW1/1 and Ex.DW1/2 has shown his title over the property. It is correctly held that defendant no.1 duly proved his possession and a better right & interest in the suit property. On the other hand, plaintiff has been unable to show that he is in lawful possession of the suit property. Thus, in view of the material/document on record, I do not find any infirmity or illegality in the observation made by the Ld. Trial Court in para no.22 and 26 regarding the entitlement of the defendant no.1 over the suit property. Thus, on the basis of above stated discussion, it cannot be said that plaintiff has proved that he is the bonafide purchaser of the suit property.
25. The another ground taken by the plaintiff is that Ld. Trial Court ignored the contradictory statement of DW1 & DW2.
26. DW1 in his cross-examination though stated that he got to know that someone had broken the locks of the suit property and taken unauthorized possession on 20.10.2012 or 21.10.2012. He also stated that he must have last visited the property around 5-6 months prior to this incident. But, he MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 13 of 18 voluntarily explained why he could not visit the property as during that time, he was not in Delhi as he was busy with a partition suit in Haryana. He also stated that road widening was undergoing in front of his residence. On the other hand, DW2 stated that in the year 2012, when he visited the suit property, defendant no.1 was residing in the suit property. He also specifically stated that he visited the suit property last in January, 2012 along- with defendant no.1.
27. Defendant no.1 disclosed the incident of the month of October, 2012 wherein DW2 visited the property in the month of January, 2012. Thus, it is apparent that both the testimonies are not contradictory to each other rather it fortifies the case of the defendant no.1 that he was in possession of the property in the year 2012 till plaintiff broke the locks of the suit premises. Thus, the above stated ground is untenable.
28. The other ground taken by the plaintiff is that plaintiff cannot be treated as a trespasser merely on the basis that he has purchased the property by way of notarized document. I am not satisfied with the arguments of the Ld. Counsel for the plaintiff as defendant no.1 proved his ownership over the suit property on the basis of allotment letter, possession letter and conveyance deed. Defendant no.1 also proved that he has purchased the property in the MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 14 of 18 year 2001 and he has been in possession of the property since then. He has proved the copy of letter to BSES dated 30.10.2004 and March, 2007, electricity bill of the year 2007. These documents are duly proved and exhibited as Ex.DW1/6 (colly). Defendant no.1 proved the copy of water bills dated 24.11.2006 and 22.11.2012. These documents are exhibited as Ex.DW1/8. Thus, perusal of these documents shows that plaintiff remained in possession of the property over a period of time from 2001 till 2012.
29. On the other hand, Ld. Trial Court rightly observed that plaintiff's document pertains to the year 2011-2012. Not a single document proved or filed by the plaintiff to show his possession over the suit property during the period from 2001 to 2011. Thus, plaintiff miserably failed to prove that he is the owner of the property. He also failed to prove that he was in lawful possession of the property. Thus, Ld. Trial Court rightly observed that plaintiff is the trespasser of the property.
30. It is relevant herein to mention that counter claim of defendant no.1 against the plaintiff got decided by the Ld. Court of Sh. Rajesh Kumar, Ld. ADJ-03, Karkardooma Court vide judgment dated 18.01.2022. One of the issue which was framed in the said counter claim/suit pertains to whether "plaintiff is entitled for possession of the suit property bearing no.124-B, MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 15 of 18 Pocket-A-2, Type-1, Group-11, Kondli, Gharoli, Delhi." The said issue decided in favour of the defendant no.1 and against the plaintiff. The Ld. ADJ categorically observed that in the present case, "neither the ownership had been transferred nor possession of suit property was handed over to the defendant in pursuance to the provisions of Transfer of Property Act."
31. It is further held that "plaintiff has failed to prove his lawful possession.
...." "No documents of sale were ever executed by the plaintiff in favour of Shreepal. Hence, when the title of Shreepal was effective, how he could have given better title to the defendant. Hence, by no stretch of imagination, defendant Sandeep Verma can be considered to be the owner of the suit property or in lawful possession of the suit property."
32. Thus, plaintiff herein held neither the owner nor in possession of the suit property and consequently, defendant no.1 herein granted decree of possession of the suit property in the said suit. Thus, it is apparent that Ld. Trial Court and the Court of Ld. ADJ simultaneously held defendant no.1 as the owner and in possession of the suit property. Both the Courts held that plaintiff is neither the owner nor in possession of the suit property. MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 16 of 18
33. The last ground taken by the plaintiff is that Ld. Trial Court dismissed the suit with cost of Rs.50,000/-. However, Court cannot impose cost of more than Rs.3000/- as per Section 35A of CPC. Perusal of para no.41 of impugned judgment shows that cost of Rs.50,000/- was imposed upon the plaintiff on the ground that plaintiff is a trespasser in the suit property. It is also held that plaintiff shall pay costs of the suit. Thus, it is apparent that cost of Rs.50,000/- was imposed under Section 35A of CPC. Section 35A CPC deals with compensatory cost in respect of false and vexatious claims or defences. The maximum cost which can be imposed under Section 35A of CPC is Rs.3,000/-. The Hon'ble Supreme Court of India in "Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust & Ors." decided on 12 th of October, 2011" held that "The costs awarded for false or vexatious claims should be punitive and not merely compensatory" and it was observed that Legislature may consider award of 'punitive costs' under Section 35A CPC. However, Section 35A CPC has not been amended till date. Thus, I am of the considered view that cost more than Rs.3,000/- cannot be imposed under Section 35A CPC. So, in view of Section 35A CPC, the cost of Rs.50,000/- is reduced to Rs.3,000/-.
MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 17 of 18
34. Thus, the plaintiff/appellant failed to show any reasonable ground for setting aside the impugned judgment. Hence, the appeal of the appellant is meritless.
35. In the wake of aforesaid appreciation, the net result is that, present appeal filed by appellant under Section 104 of CPC against the order/judgment dated 10.08.2017 passed by the then Ld. Civil Judge, East District, Karkardooma Court in CS No.6898/16/2012 is partly allowed to the extent of reduction of cost only. TCR be sent back along- with copy of this judgment. Appeal file be consigned to record room after due compliance.
Digitally
signed by
Announced in the Court MANOJ
MANOJ
KUMAR
today 9th of December, 2022 KUMAR(Manoj Kumar)
Date:
2022.12.09
17:17:03
SCJ-cum-RC, East/KKD
+0530
MCA No. 6/17 Sandeep Verma Vs. Vinod Kumar Mehta & Anr. Page 18 of 18