Delhi District Court
Jyoti Pramanik vs Joseph Thomas on 31 May, 2024
IN THE COURT OF SH. PARVEEN SINGH,
DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 18407/2016
CNR No. DLCT-01-0000461995
Mr. Jyoti Pramanik,
S/o Sh. Alhad Pramanik
R/o 354, Mission Road, Sambalpur (Orissa),
through his attorney Sh. M. Salahuddin,
S/o Sh. Islamuddin
R/o B-7, Nizamuddin West,
New Delhi-110013
...Plaintiff.
Versus
1. Sh. Joseph Thomas,
S/o Late Sh. K. A. Thomas,
R/o B-1/33, Azad Apartments,
Aurobindo Marg, New Delhi-110016.
2. M/s Navketan Cooperative Group Housing Society Ltd.,
through its Secretary,
Azad Apartments,
Aurobindo Marg, New Delhi-110016.
...Defendants
Date of Filing : 10.01.1995
Date of Arguments : 24.05.2024
Date of Judgment : 31.05.2024
SUIT FOR POSSESSION, DECLARATION, PERMANENT
INJUNCTION, RENDITION OF ACCOUNTS, RECOVERY OF
DAMAGES AND MESNE PROFITS
Digitally signed by
PARVEEN PARVEEN SINGH
SINGH Date: 2024.05.31
13:21:18 +0530
CS No.18407/2016 (Parveen Singh)
Page No.1 of 51 DJ-11/Central/THC/Delhi/31.05.2024
DL-00236
JUDGMENT
1. The present suit for recovery of possession, declaration, permanent injunction, rendition of accounts of recovery of damages had been filed by the plaintiff against the defendants.
2. Briefly stated the case of the plaintiff is that on 06.03.1977, plaintiff moved an application before defendant no. 2 for becoming a member of the society. On payment of certain amount towards admission charges etc., plaintiff was made a member of the society and he was allotted membership no. 331. Two share certificates i.e. certificate no. 144 and 171 were issued. Thereafter, plaintiff deposited various amounts with defendant no. 2 towards various charges as demanded by defendant no. 2 from time to time. In the draw of lots, plaintiff was allotted flat no. B-1/33 by the defendant no. 2. An occupancy certificate dated 20.11.1979 was issued by the defendant no. 2 to the plaintiff wherein it was stated that the flat in question was ready for possession. Accordingly, possession of the said flat was taken by the plaintiff. After taking possession of the flat, as the plaintiff had to remain out of Delhi, he executed a power of attorney dated 27.05.1981/01.06.1981 in favour of defendant no. 1, who was a family friend of plaintiff and was also dealing with defendant no. 2 on behalf of plaintiff. In view of the power of attorney executed by plaintiff in favour of defendant no. 1, he was authorized to manage and let out the flat in question and realize rent from the lessee against receipt. Defendant no. 1 was also authorized to take up legal proceedings to evict the tenant of Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:21:32 +0530 CS No.18407/2016 (Parveen Singh) Page No.2 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 the said flat. No power to use and occupy the flat was given to the defendant no. 1. It was further submitted that after taking the possession of the flat, plaintiff had been paying all the charges including maintenance charges, electricity and water charges etc. Plaintiff had instructed defendant no. 1 to let out the said flat to M/s Binny Ltd. for residence of one of their employee for two years w.e.f. May 1983. After expiry of the tenancy, plaintiff instructed defendant no. 1 not to let out the flat. However in November 1990, plaintiff came to know that defendant no. 1 was using and occupying the said flat without any authority and instructions of plaintiff. Plaintiff further came to know that the defendant no. 2, in collusion with defendant no. 1, had allowed defendant no. 1 to occupy the said flat. Plaintiff also came to know that defendant no. 1 had also been admitted as a member of defendant no. 2 in place of plaintiff. On inquiries, plaintiff came to know that defendant no. 1 had forged a letter dated 06.12.1988 purporting to bear the signatures of plaintiff indicating that the membership and ownership of flat be transferred in favour of defendant no. 1. However, the plaintiff had never sought to transfer the membership or flat in favour of defendant no. 1 or any other person and the letter dated 06.12.1988 was a forged fabricated by defendant no. 1. On coming to know this forgery, vide legal notice dated 27.11.1990, plaintiff immediately revoked the power of attorney dated 01.06.1981 and defendant no. 1 was called upon to return the original power of attorney. However defendant no. 1 failed to comply with the said notice. Thereafter, vide letter dated 29.10.1993, Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:21:46 +0530 CS No.18407/2016 (Parveen Singh) Page No.3 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 plaintiff called upon defendant no. 2 to reverse the transfer as the same was based upon a forged document. However, defendant no. 2 failed to do so and plaintiff issued a legal notice dated 23.02.1994 to defendant no. 2 to supply copies of various documents of alleged transaction of transfer and also restore the membership/ ownership of the plaintiff. However, defendant no. 2 failed to comply with the same. It was further submitted that on inspection of the records of defendant no. 2, in the second week of March 1994, it transpired that alongwith the forged and fabricated letter dated 06.12.1988, defendant no. 1 had submitted various other documents i.e. declaration, affidavit, application for admission as a member etc.; that defendant no. 1 had also submitted a cheque no. 122129 dated 11.12.1998 for Rs.50,000/- towards development charges and the same was not accepted; that defendant no. 1 had falsely represented to the defendant no. 2 that he had paid the total cost of the flat; that on 21.12.1988 defendant no. 1 submitted another cheque of Rs.25,000/- towards development charges; that on 22.12.1988 President of the society had illegally approved the transfer; that on 25.12.1988 defendant no. 2 intimated defendant no. 1 that the membership of plaintiff had been transferred to his name and that serious interpolations had been done in the records of the defendant no.
2. It was further submitted that prior to taking any action on the forged letter dated 06.12.1988, it was the duty of defendant no. 2 to enquire from the plaintiff and verify the facts. It was further submitted that the alleged transfer of membership and ownership, being without Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:21:55 +0530 CS No.18407/2016 (Parveen Singh) Page No.4 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 consideration, was void. The alleged transfer was also in violation of the terms and conditions of the lease and also contrary to the laws of the land. Defendant no. 1 was also liable to render the accounts to the plaintiff for managing the said flat and also for unauthorizedly using and occupying the said flat. It was further submitted that due to wrongful and illegal use and occupation of the flat by defendant no. 1, the plaintiff was suffering huge damages to the tune of Rs.10,000/- per month. For the past damages, plaintiff had claimed Rs.5,000/- per month w.e.f. 02.04.1985 i.e. the date when the defendant no. 1 had unauthorizedly occupied the flat in question in connivance with defendant no. 2. It was further submitted that plaintiff had come to know that the defendant no. 1 was trying to sell and transfer the flat in question to some third person. Hence, the present suit.
3. On being served with the summons, defendants filed their written statement.
4. In the written statement filed on behalf of defendant no. 1, a preliminary objection was taken that this court had no jurisdiction to entertain the present suit in view of the specific provisions of Delhi Cooperative Societies Act, 1972. A further preliminary objection was taken that the suit was bad for non joinder of the necessary parties. Sh. R. K. Nayak, brother in law of plaintiff, was the main person behind the transfer of the suit premises to the defendant no. 1 and was a necessary party to the suit for just determination of the controversy. It was further submitted that with the consent/ approval of plaintiff, Sh. R. K. Nayak as Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:22:06 +0530 CS No.18407/2016 (Parveen Singh) Page No.5 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 well as defendant no. 2, defendant no. 1 had been in control, possession and occupation of the suit premises since its allotment i.e. in November 1979, except for the period when it was let out by the defendant no. 1. Defendant no. 2 after receipt of no objection, dated 06.12.1988, from the plaintiff had transferred the flat in the name of defendant no. 1. It was further submitted that the required court fee had not been paid.
5. On merits, it was denied that the plaintiff was the original member or that plaintiff was allotted membership number 331. It was submitted that the original share certificate/ membership of the society was in the name of Mrs. Santosh Pandit, who subsequently transferred it to the plaintiff and plaintiff after receiving consideration of Rs.50,000/- from defendant no. 1 agreed to transfer the same to defendant no. 1. It was denied that the plaintiff had deposited various amounts with defendant no. 2 or that plaintiff was allotted property no. B-1/33 by defendant no.
2. On the contrary, all the payments were made by defendant no. 1 from his own sources. It was submitted that plaintiff had issued a power of attorney in favour of defendant no. 1 and the said power of attorney was not accepted by the defendant no. 2 society as it was executed outside Delhi and signatures of the plaintiff did not match as per the record of defendant no. 2. In December 1981, plaintiff executed a fresh power of attorney which was duly notarized and was given to defendant no. 2. It was submitted that defendant no. 1 had let out the property to M/s Binny Ltd. for residence of their employee. It was further submitted that defendant no. 1 was the rightful allottee/ owner of the property and he Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.05.31 13:22:19 +0530 CS No.18407/2016 (Parveen Singh) Page No.6 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 had paid the entire consideration for the property to the plaintiff as well as the balance consideration amount and charges to defendant no. 2. It was denied that transfer in favour of defendant no. 1 by defendant no. 2 was a fraudulent transfer. The original share certificates in which the endorsement was made in favour of defendant no. 1 was in the possession of defendant no. 1. It was further submitted that even as per the plaint, the notice was issued on 27.11.1990 and thus, the suit which was filed in 1995 was barred by limitation. It was denied that the plaintiff had not executed the letter dated 06.12.1988. It was further submitted that the defendant no. 2, on a frivolous representation by Sh. R. K. Nayak, allowed the inspection of the files to the lawyer of the plaintiff and denied the inspection to defendant no. 1. It was denied that the membership of the plaintiff was transferred by defendant no. 2 in favour of defendant no. 1 in collusion and connivance with defendant no. 1. On the contrary, defendant no. 1 had completed all formalities for transfer including payment of Rs.75,000/- as transfer fee as demanded by defendant no. 2. It was submitted that it was Sh. R. K. Nayak who was instrumental in getting the letter dated 06.12.1988 to defendant no. 1 for consideration. The plaintiff had never objected to the possession of defendant no. 1 only due to the fact that defendant no. 1 had paid the due consideration for the flat to defendant no. 2 as well as to the plaintiff. Rest of the averments made in the plaint were denied.
6. In the written statement filed on behalf of defendant no. 2, it was admitted that the plaintiff had paid charges demanded by the answering Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:22:30 +0530 CS No.18407/2016 (Parveen Singh) Page No.7 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 defendant and was allotted flat no. B-1/33, Azad Apartments by the answering defendant. It was admitted that defendant no. 1 was constituted as Special Power of Attorney by plaintiff. It was submitted that in addition to cost of flat, plaintiff was required to pay his share of the HUDCO Loan. As on 23.02.1983, plaintiff was in arrears to the tune of Rs.43,662/- with regard to the installments and other charges and the plaintiff had made the payment of the said amount vide cheque dated 14.03.1983. It was further submitted that after the expiry of tenancy of M/s Binny Ltd., defendant no. 1 occupied the flat in question in April 1988. Defendant no. 2 was unaware of the understanding between the plaintiff and defendant no. 1. It was denied that defendant no. 1 was allowed to occupy the flat in question in collusion. It was admitted that the letter dated 06.12.1988 among others formed a basis of transfer of plaintiff's membership and the flat. It was denied that defendant no. 2 was aware about any forgery of the letter dated 06.12.1988 and it acted on a bonafide belief that the transfer of membership and ownership of the disputed flat was through the consent of the plaintiff. It was further submitted that the records of the case which were made available for the inspection of the plaintiff showed the bonafide of the defendant no. 2.
7. Thereafter, vide order dated 15.04.2010, following issues were framed:-
1. Whether plaintiff is entitled to a decree of possession of flat no.
B-1/33, Azad Apartments, Navketan Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi? OPP.
Digitally signed by PARVEENPARVEEN SINGH SINGH Date:
2024.05.31 13:22:40 +0530 CS No.18407/2016 (Parveen Singh) Page No.8 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236
2. Whether plaintiff is entitled to a decree of declaration as per prayer 'b'? OPP
3. Whether plaintiff is entitled to a decree of permanent injunction as per prayer 'c'? OPP
4. Whether plaintiff is entitled to a decree of rendition of accounts as per prayer 'd'?OPP
5. Whether plaintiff is entitled to damages? If so, to what amount? OPP.
6. Relief.
8. Thereafter, the parties led their respective evidence. Plaintiff examined himself as PW1. On the other hand, defendant examined himself as DW1.
9. I have heard learned counsels for the parties and carefully perused the record.
10. My issue wise findings are as under:-ISSUES NO. 1 & 2
1. Whether plaintiff is entitled to a decree of possession of flat no. B-
1/33, Azad Apartments, Navketan Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi? OPP.
2. Whether plaintiff is entitled to a decree of declaration as per prayer 'b'? OPP
11. The present suit has been filed by the plaintiff for possession claiming himself to be the owner of the suit property and consequentially a declaration that the transfer of the property by virtue Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:22:50 +0530 CS No.18407/2016 (Parveen Singh) Page No.9 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 of transfer of membership of the society in favour of the defendant was a nullity.
12. Before proceeding, it becomes important to decide a legal issue which has been argued by the parties at length before the court and that is with regard to the contention of defendant no.1 that the suit is barred by limitation.
13. Ld. Counsel for defendant no. 1 has contended that the suit of the plaintiff is clearly barred by limitation. He has contended that the plaintiff has sought a decree of declaration that the transfer of membership of the defendant no. 2 society and the transfer of the ownership of the flat in favour of the defendant no. 1 be declared a nullity and further that the plaintiff continues to be the owner of the flat in question. He has contended that unless this declaration is granted to the plaintiff, defendant no. 1 continues to be the member of the society and thus, the owner of the flat in question by virtue of its transfer in his favour and the plaintiff cannot succeed in getting a decree of possession. Therefore, the decree of possession is a consequential relief to the decree of declaration and any suit for seeking declaration such as the present one had to be filed within the period of 03 years of the date of when cause of action arose. He has contended that it is very much clear from the plaint that the plaintiff had come to know about this transfer, which according to plaintiff was done on the basis of a forged letter, in the year 1990. This fact is further borne out from the document Ex.PW1/15, which is a letter written by the plaintiff to the President of the society Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:23:00 +0530 CS No.18407/2016 (Parveen Singh) Page No.10 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 wherein it is stated that it was in the year 1990 that the plaintiff had come to know about the transfer of membership in favour of defendant no. 1 and in consequence transfer of the ownership of the flat. However, the present suit was filed in the year 1994 and thus, is barred by limitation. In this regard, he has relied upon the judgment of Hon'ble Supreme Court passed in Jamila Begum (D) Thr. LRs. v. Shami Mohd. (D) Thr. Lrs. & Anr., 2018 Legal Eagle (SC) 1122 wherein Hon'ble Supreme Court has held as under:-
34. Suit barred by limitation :- As discussed, suit was filed for declaration that the mortgage deed dated 21.11.1967 as well as sale deed dated 21.12.1970 executed by Wali Mohd. were not executed by him out of his free will and are void. In paragraph (14) of the plaint, it is averred that the cause of action of the suit arose on 21.11.1967 and 21.12.1970. Under Articles 58 and 59 of the Schedule to the Limitation Act, 1963 in a suit filed for any declaration is to be filed within three years when the right to sue accrues.
Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. Plaintiff-Shami Mohd. has admitted in his evidence that he got knowledge about the execution of the sale deed dated 21.12.1970 on the third day of death of his father - 17.05.1971. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 12.07.1978. In the case in hand, suit filed challenging the validity of the mortgage deed dated 21.11.1967 and sale deed dated 21.12.1970 is beyond the period of limitation of three years as prescribed under Articles 58 and 59 of Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:23:11 +0530 CS No.18407/2016 (Parveen Singh) Page No.11 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 the Schedule to the Limitation Act and barred by limitation.
14. He has further contended that the present suit for relief of declaration shall be governed by Articles 58 and 59 of the Limitation Act.
15. Countering it, ld. Counsel for plaintiff has contended that the present suit is a suit for possession and the limitation to file a suit for possession is 12 years from the date when possession of the respondent / defendant became adverse to that of the plaintiff. The plaintiff came to know in the year 1990 about the defendant being in possession and at the same time, he came to know that by a fraudulent exercise, defendant no. 1 had succeeded in having the membership of society transferred in his name and consequently, the flat in question was also transferred in his name. He has further contended that merely because a declaration is required to put the plaintiff in possession by virtue of his title and ownership, the limitation of 12 years as provided under Article 65 of the Limitation Act will not be taken away and such a suit will be governed by Article 65 of the Limitation Act and not by Articles 58 & 59 as claimed by the defendant no. 1. In this regard, he has placed reliance upon the judgment of Hon'ble Andhra Pradesh High Court in Mechineni Chokka Rao & Ors. v. Sattu Sattamma, 2006 (1) ALD 116 and also on the judgment of Hon'ble Supreme Court in Sopanrao & Anr. v. Syed Mehmood & Ors., Civil Appeal No. 4478/2007 decided on 03.07.2019.
16. I have considered the rival submissions and gone through the record very carefully.
Digitally signed by
PARVEEN PARVEEN SINGH
SINGH Date: 2024.05.31
13:23:24 +0530
CS No.18407/2016 (Parveen Singh)
Page No.12 of 51 DJ-11/Central/THC/Delhi/31.05.2024
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17. There is no doubt that the claim of the plaintiff is, that it is in November 1990, that he had come to know that defendant no. 1 was using and occupying the flat in question. He had further come to know that the defendant no. 1 had been admitted as a member of defendant no. 2 society in his place. Thus, the fact that property had been in occupation of defendant no. 1 and that the membership of the society and ownership of the flat had been transferred in favour of defendant no. 1 had come in knowledge of the plaintiff in the year 1990 and thus, the limitation would start to run from that day. However, the question is, whether the limitation would be of 12 years as per the Article 65, or it would be 03 years as per Articles 58 and 59 of the Limitation Act. Defendant has placed reliance upon the judgment of Hon'ble Supreme Court in Jamila Begum (supra) and on the other hand, plaintiff has relied upon the judgment of Hon'ble Supreme Court in Sopanrao (supra).
18. With all due respect to the judgment of Hon'ble Supreme court in Jamila Begum (supra), I find that the judgment of Sopanrao (supra) being the judgment of a larger bench holds the day. It is more so because Hon'ble Justice Indira Bannerjee, who was a part of the bench that decided Jamila Begum (supra) was also a part of three judge bench of Hon'ble Supreme Court which had decided the case of Sopanrao (supra). In Supanrao (supra), Hon'ble Supreme Court had held as under:-
9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the Trust Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:23:36 +0530 CS No.18407/2016 (Parveen Singh) Page No.13 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963.
This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants.
Digitally signed
PARVEEN by PARVEEN
SINGH
SINGH Date: 2024.05.31
13:23:47 +0530
CS No.18407/2016 (Parveen Singh)
Page No.14 of 51 DJ-11/Central/THC/Delhi/31.05.2024
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19. Therefore, from the judgment of the Hon'ble Supreme Court in Sopanrao (supra), the legal proposition which emerges is, that if a suit is filed for possession which is based on title, such as the present suit, the plaintiff has to prove his title and merely because for proving the said title, certain declarations are required, the suit will not cease to be governed by Article 65 of the Limitation Act and hence, I find that the suit, which was filed in the year 1994 on a cause of action which had arisen in the year 1990, was filed within the period of 12 years and it being a suit for possession, the same is to be governed by Article 65 of the Limitation Act and it is within the period of limitation irrespective of the fact that a declaration has also been sought.
20. There is another legal issue which has been raised in the WS as well as during the arguments and the said issue is that in view of provisions of Delhi Cooperative Societies Act, the present suit is not maintainable as this court does not have jurisdiction to try and entertain the present suit.
21. The Ld. Counsel for defendant has contended that this court does not have the jurisdiction to try and entertain the present suit as it is specifically barred by Delhi Cooperative Societies Act. In this regard he has relied on the judgment of the Hon'ble Delhi High Court in Prakash Narayan Sharma Vs Burmah Shell Cooperative Housing Society Ltd. 2001 (59) DRJ 237 (Del). He has specifically relied upon para-10 and 11 which read as under:-
10. Reading of the aforesaid provisions clearly show that the jurisdiction of the civil courts to entertain any Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:23:57 +0530 CS No.18407/2016 (Parveen Singh) Page No.15 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 suit or any proceedings in respect of the disputes which are covered by the Act is ousted. While Section 93 (1) (c) categorically declares that save as provided in the Act no civil or revenue court shall have any jurisdiction in respect of any dispute required under Section 60 to be referred to the Registrar, Sub section (3) of Section 93 mandates that no order, decision or award made under the Act shall be questioned in any court on any ground whatsoever except as provided in the Act. Even though there is no ambiguity in the provisions of Section 93(1)(c) and Section 93 (3), the legislature in order to further clarify the position has provided in Section 60(1)(d) that no court shall have jurisdiction to entertain any suit or other proceedings in respect of the disputes of the kind in question. Thus, the Additional District Judge had no jurisdiction in the matter. If it had no jurisdiction it was a coram non judice. Therefore, any order passed by it with regard to the matter covered by the provisions of Section 60(1) (d) and 93 (1)(c) and 93(3) would be nullity. As a sequitur the restraint order passed by the Additional District Judge suffered from the same malady. Such an order being a nullity and of no consequence could be ignored by the parties and the arbitrator. This view finds sustenance from the decision of the Supreme Court in Amrit Bhikaji Kale and others vs. Kashinath Janardhan Trade and another, (1983) 3 SCC 437, wherein it was held as follows :
"..... When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding...."Digitally signed by
PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:24:19 +0530 CS No.18407/2016 (Parveen Singh) Page No.16 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236
11. Since the principle that an order passed by a court which has no jurisdiction is a nullity is very well settled, it is not necessary to refer to various other decisions on the point. At this stage, we however, deem it necessary to strike a note of caution. Normally it is the duty of the parties to a litigation to abide by and obey the orders of the court. An injunction order passed by the court is binding on a party to the litigation as long as it is not lifted, modified or altered except in a case where the order is clearly without jurisdiction. But where the statute is equivocal and not so clear and the jurisdiction of the court depends on the interpretation of such a statute, the parties need to obey the injunction and not disregard it. Since we have held that the civil court clearly did not have the jurisdiction in the matter and the restraint order dated 4th October, 1989 was a nullity, it is not necessary to determine the question whether the restraint order was served on the arbitrator before passing the award."
22. Countering the same, the Ld. Counsel for plaintiff has relied upon the judgment of Bombay High Court in Sanjeevani Kailash Vs Kasinath Husini (Waghe) Walhar & Others 2018 Legal Eagle (Bom) 318 and has contended that the membership of societies which was transferred to defendant no.1 was an ancillary issue but the substantive question that the transfer of the membership was on the basis of forged documents can only be decided by a civil court and the Registrar Societies have no power or jurisdiction to decided this fact. He has specifically relied upon para-20 and 21 which are as under:-
20. As against it, in the present case, as rightly held by the Appellate Court, the relief relating to transfer of the membership of the Co-operative Society is merely Digitally signed by PARVEEN PARVEEN SINGH an ancillary relief. The main relief pertains to the Date:
SINGH 2024.05.31 13:24:35 +0530 CS No.18407/2016 (Parveen Singh) Page No.17 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 cancellation of the 'Sale-Deed' itself, which is alleged to be executed taking advantage of the illness and old age of Respondent No. 1. Therefore, the dispute raised is of a civil nature, in a sense that, it pertains to cancellation of 'Sale Deed' on the ground of it being illegal, null and void and also for partition and possession of half share of Respondent No. 2.
21. In such situation, Civil Court's jurisdiction to adjudicate civil dispute is unlimited, subject only to limitation laid down by law, either expressly or by necessary implications. As held by the 'Apex Court in case of Margret Almeida and Ors. (Supra), relied upon by learned counsel for the Respondents and also by the Appellate Court, such dispute cannot be said to be out of the purview of the Civil Court. Conversely, the Civil Court alone can have the jurisdiction to decide such dispute, as it neither touches directly to the business of the Co-operative Housing Society, nor the Co-operative Housing Society has anything to do in the present Suit in respect of the relief, which is claimed by Respondent No. 2. The Co-operative Housing Society will only implement whatever the Civil Court decides, as to whether the membership should be given the Applicant or to Respondent No. 1.
The membership given to the Applicant is on the basis of the 'Sale Deed' and if that 'Sale Deed' is set aside, then, naturally, the Co-operative Housing Society is bound to cancel the said membership. Therefore, the Co-operative Housing Society is not directly concerned in the present dispute, nor the present dispute touches the business of the Co-operative Housing Society."
23. He has further relied upon the judgment of the Hon'ble Supreme Court in Swami Atma Nanda Vs Ram Kishan Tapowan, 2005 (10)(SCC) Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:25:08 +0530 CS No.18407/2016 (Parveen Singh) Page No.18 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236
51. He has contended that the the Hon'ble Supreme Court had dealt in detail with the question of jurisdiction or the bar to the jurisdiction of the civil court. Dealing with a similar provision which was sought to be invoked to oust the jurisdiction of the civil court i.e. Section 53 and 53A of Tamil Nadu recognized Private Schools (Regulation) Act 1973, the Hon'ble Supreme Court held as under:-
JURISDICTION OF CIVIL COURT:
50. Section 53 and 53A of the Act read as under : "53. No civil court shall hav jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act."
53A. (1) Notwithstanding anything contained in section 53, whenever any dispute as to the constitution of any educational agency, or as to whether any person or body of persons, is an educational agency, in relation to any private school, or as to the constitution of a school committee, or as to the appointment of secretary of the school committee, arises, such dispute may be referred by the persons interested or by the competent authority to the civil court having jurisdiction, for its decision. (2) Pending the decision of the civil court on a dispute referred to it under sub-section (1), or the making of an interim arrangement by the civil court for the running of the private school, the Government may nominate an officer to discharge the functions of the educational agency, the school committee or the secretary, as the case may be, in relation to the private school concerned."
51. Indisputably a dispute with regard to the title over immovable property will have to be adjudicated in the Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:25:24 +0530 CS No.18407/2016 (Parveen Singh) Page No.19 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 Civil Court along. Section 53 merely postulates that the Civil Court will have no jurisdiction to decide or deal with any question which is by or under the said Act required to be decided or dealt with by any authority or officer mentioned in the said Act. Section 5 of the Act whereupon reliance has been placed by Mr. Sukumaran for advancing the contention that the matter relating to recognition of schools is required to be decided by an authority created thereunder cannot be accepted. Section 5 lays down a procedure as regard necessity to file an application and the contents thereof for permission to run such schools. Section 4 of the Act prohibits every person from establishing any school without obtaining permission of the competent authority save and except in accordance with the terms and conditions specified in such permission.
52. A dispute as to who is the real educational agency in relation to a private school is not a matter which in terms of the provision of the said Act would be determined by an authority under the provisions of the said Act. Section 53A of the Act carves out an exception to Section 53 thereof. In terms of the said provision any dispute as to the educational institution is to be determined by a Civil Court having jurisdiction for its decision. The submission of Mr. Sukumaran, however, is that the jurisdiction of the Civil Court is required to be invoked in such matters specified therein by way of reference by the persons interested or by the competent authority. Mr. Sukumaran would contend that such a reference would be akin to a dispute pending under the Industrial Disputes Act. We cannot accept the said contention. A party to a dispute may not join the other in referring the same to the Civil Court. The party may agree or may not agree therefor. A person Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:25:36 +0530 CS No.18407/2016 (Parveen Singh) Page No.20 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 having a grievance as against other must have a remedy. The maxim 'ubi jus ibi remedium' is not an empty formality. The jurisdiction of the Civil Court exemplifies the said doctrine. The jurisdiction of the Civil Court cannot be held to have been ousted unless it so, expressly or by necessary implication, stated in the Statute. In terms of Section 53A of the Act, a dispute as to educational agency is concededly required to be decided by a Civil Court. How the jurisdiction of the Civil Court is required to be invoked in a matter to be examined by the Civil Court. Unlike a private tribunal or a statutory tribunal which would not derive a jurisdiction unless a reference in terms of the provisions of the Act is made to it, the Civil Court enjoys a plenary jurisdiction. Furthermore, if an when a dispute arises before the competent authority as regard entitlement of an educational agency in relation to educational institutions, the same must also be referred to the Civil Court. Statutory authority in terms of Section 5 of the Act cannot be said to have any jurisdiction to determine such a dispute. A statute is well-known, must be read in such a manner so as to give effect to the provisions thereof. It must be read reasonably. A statute must be construed in such a manner so as to make it workable. The wording " referred by the persons interested' would, thus mean a person who has a grievance as regard claim of other side relating to educational agency of the educational institution. It can be done by filing a suit before the Civil Suit. The term 'persons' which is plural has been used having regard to the fact that educational agency need not be a person alone but would also include a society registered under the Societies Registration Act or a body corporate in terms of the Companies Act. In any even, if such a dispute within the contemplation of Section 53 A has to be decided by a civil court, it will Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:25:47 +0530 CS No.18407/2016 (Parveen Singh) Page No.21 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 not attract the bar under Section 53 which applies only to a question which is required to be dealt with or decided by any authority or officer mentioned in the Act.
53. We may notice that after the Second Appeal was dismissed, the Appellants herein sought to raise additional grounds in their review application, as regard the lack of jurisdiction in a Civil Court. The said plea was negatived.
54. In Principles of Statutory Interpretation, by G.P. Singh, Ninth Edition, page 630, it is stated:
"As a necessary corollary of this rule provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities and tribunals other than civil courts are strictly construed. The existence of jurisdition in civil court to decide questions of civil nature being the general rule and exclusion being an exception, the burden of proof to show that jurisdiction is excluded in any particular case is on the party raising such a contention. The rule that the exclusion of jurisdiction of civil courts ins not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and people have a right, unless expressly or impliedly debarred, to insist for free access to the courts of generl jurisdition of the State. Indeed, the principle is not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts"
55. In Dhulabhai and Others v. The State of Madhya Pradesh and Another [(1968)3SCR 662].
Hidayatullah, CJ Summarized the following principles relating to the exclusion of jurisdiction of civil courts:
(a) Where the statute gives a finality to the Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:25:55 +0530 CS No.18407/2016 (Parveen Singh) Page No.22 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 orders of the special tribunal, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provision of the particular Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure.
(b) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequeacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(c) Challenge to the provision of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.
(d) When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:26:04 +0530 CS No.18407/2016 (Parveen Singh) Page No.23 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 claim is clearly withing the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(f) Question of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie inf the order of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.
(g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. [See Rajsthan State Road Transport Corporation and Another v. Krishna Kant and Other (1995) 5 SCC 75, Dwarka Prasad Agarwal v. Ramesh Chand Agarwal - (2003) 6 SCC 220;
Sehebgouda v. Ogeppa (2003) 6SCC 151 and Dhruv Green Field Ltd. Vs. hukam Sing (2002)6 SCC 416]
56. This case does not fulfil the said conditions and the jurisdiction of the Civil Court was not excluded by reason of Section 53 and 53A of the Act.
57. The reliance placed by the Appellant on the decision of this Court in Math Sauna and otehrs v. Kedar Nath alias Uma Shankar and others [AIR 1981 SC 1878] is wholly erroneous. In that case the Court had held that the question whether properties in possession of a mahant were math or personal was to be decided on the basis of the fact and circumstances of the case.
Digitally signed
PARVEEN by PARVEEN
SINGH
SINGH Date: 2024.05.31
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24. He has thus contended that considering the nature of the dispute, this court alone would have the jurisdiction to try and entertain the present suit.
25. I have considered the rival submissions and perused the judgments cited at bar.
26. It is correct that in view of Section 60 & 93 of Delhi Cooperative Societies Act, 1972 of the said Act, if any dispute arises on the subjects provided under Section 60 of the Act, the jurisdiction of the civil court will be barred. However, in view of the judgments of Bombay High Court in Sanjeevani (supra) and judgment of the Hon'ble Supreme Court in Swami Atma Ram (supra) if the issue raised before the court is of the nature which can only be decided by a civil court, then even if the consequential result may lead to a finding with regard to the subjects provided under Section 60 of the Act, the jurisdiction of the civil court is not ousted. In the present case, the plaintiff has claimed that the defendant no.1 succeeded to have the membership of defendant no.2 society transferred in his favour on the basis of a forged letter of request allegedly issued by him seeking the transfer of the flat in question in favour of defendant no.1 and also on the basis of a forged receipt of payment of consideration for the purchase of the said flat. The registrar of societies does not have the jurisdiction to decide whether the said letter or receipt were forged or not and such jurisdiction exclusively lies with the civil court. Therefore, the jurisdiction of this court will not be ousted merely because of the fact that if court reaches the conclusion, Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:26:21 +0530 CS No.18407/2016 (Parveen Singh) Page No.25 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 that the defendant no.1 had got the membership of defendant no.2 on the basis of forged and fabricated documents purported to be issued by the plaintiff, the necessary conclusion would be that the said transfer of membership was nullity. I say so because in these circumstances, the findings of the court on the issue of membership of defendant no.2 society are as a consequence of findings about the genuineness or otherwise of the said documents, an issue which alone can be decided by a civil court. I accordingly find that this court has the jurisdiction to try and entertain the present suit.
27. Coming onto the merits of the case.
28. There is no contest that the plaintiff was the earlier member and consequently owner of the flat bearing no. B-1/33, Azad Apartments, Navketan Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi (suit property). However, the defendant in his written statement raised a claim that the main person behind the transfer of the suit property was one Sh. R. K. Nayak, who was the brother-in-law of the plaintiff and that it was with the approval of Sh. R. K. Nayak as well as defendant no. 2 that he had been in control, possession and occupation of the suit property ever since its allotment and handing over the possession by defendant no. 2 in November 1979. He had been in possession of this property except for the period when it was let out by him. He further claimed that defendant no. 2 had received a no objection certificate dated 06.12.1988 from the plaintiff vide his letter dated 25.12.1988 and it is on that basis that the membership of the society and Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:26:29 +0530 CS No.18407/2016 (Parveen Singh) Page No.26 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 ownership of the suit premises was transferred in his favour. He had claimed that the plaintiff had received a consideration of Rs.50,000/- from him and agreed to transfer the property. Therefore, claiming to have purchased the property from the plaintiff, the burden was upon defendant no.1 to prove this fact.
29. Defendant no. 1, appearing as DW1, deposed that the original share certificate/ membership of defendant no. 2 was in the name of Mrs. Santosh Pandit who subsequently transferred the same to the plaintiff and the plaintiff, after receiving the consideration of Rs.50,000/-, agreed to transfer the membership in his favour. He further deposed that plaintiff was not even present when the draw of flats had been held in 1979 and only he was present at that time. Payments which were made by him to defendant no. 2 were made from his own premises (sic) and that he had become owner of the flat in question by virtue of handing over of share certificate by the plaintiff to him. He further deposed that he had received occupancy certificate from defendant no. 2 in the year 1979 and thereafter, he had been enjoying the peaceful possession of the property. He further deposed that plaintiff had issued a Power of Attorney in his favour which was not accepted by defendant no. 2 as it had been executed outside Delhi and thus in the year 1981, plaintiff came to Delhi and executed a fresh power of attorney in his favour. The consideration for execution of this power of attorney was that the plaintiff had received the entire money/ charges which he had paid for the membership of defendant no. 2 from defendant no. 1 and Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:26:37 +0530 CS No.18407/2016 (Parveen Singh) Page No.27 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 thus, in order to facilitate the transfer and possession of the property in dispute to him, the plaintiff had executed the said power of attorney. He further deposed that thereafter, he had made payments of all the charges to the defendant no. 2 as well as to various authorities as he was the allottee of the suit property. These payments were made by him through account payee cheques of his own account from his own premises. Besides that, he had spent Rs. 3 lacs for maintenance from 1979 onward. He had also let out the property to one M/s Binny Ltd. and had received rent for the period the tenant remained in possession of the suit property. The flat was vacated by the tenant on 01.04.1987 and right thereafter, he moved into the flat on the transfer of the said flat in his favour in December 1988 and on the consideration of Rs.75,000/- which he had paid to the society through cheque. He further deposed that plaintiff never claimed the rent which was received from M/s Binny Ltd. from 1983 onward. He further deposed that the brother-in-law of the plaintiff had been visiting him in the suit property regularly and enjoying his hospitality and therefore, plaintiff cannot allege that in November 1990, he came to know that the defendant was in possession of the suit property. He further deposed that the letter dated 06.12.1988 was issued by plaintiff and was delivered to him through Mrs. and Mr. R.K Nayak. He relied upon the following documents:-
1. Letter dated 24.05.1978 is Ex. DW1/4 (objected to on mode of proof).
2. Letter dated 21.11.1978 is Ex. DW1/5.Digitally signed
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3. Letter dated 22.11.1978 is Ex. DW1/6.
4. Occupancy letter is Ex. DW1/7.
5. Circular (3 pages colly) is Ex. DW1/8.
6. Letter dated 23.03.1981 is Ex. DW1/9.
7. Letter dated 20.03.1981 is Ex. DW1/10.
8. Newspaper is Ex. DW1/11.
9. Letter dated 21.04.1981 is Ex. DW1/12.
10. Letter dated 03.02.1981 is Ex. DW1/13.
11. Letter dated 24.11.1983 is Ex. DW1/14.
12. Notice dated 24.05.1984 is Ex. DW1/15.
13. Notice dated 04.06.1986 is Ex. DW1/16.
14. Notice dated 09.07.1986 is Ex. DW1/17.
15. Letter dated 18.07.1986 is Ex. DW1/18.
16. Letter dated 02.03.1987 is Ex. DW1/19.
17. Postal receipt is Ex. DW1/20.
18. Original Electrol Card is Ex. DW1/21.
19. Original MTNL Bill is Ex. DW1/22.
20. Blood bank Card is Ex. DW1/23.
21. Original MTNL Bill is Ex. DW1/24.
22. Circulars (colly three pages) is Ex. DW1/25.
23. List of Members is Ex. DW1/26.
24. Notice dated 02.03.1988 is Ex. DW1/27.
25. Circular dated 07.03.88 & 12.03.88 is Ex. DW1/28 (colly.).
Digitally signed
PARVEEN by PARVEEN
SINGH
SINGH Date: 2024.05.31
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26. Letter dated 23.07.1988 is DW1/29.
27. Bio Data is Ex. DW1/30.
28. Letters addressed to Secretary is Ex. DW1/31.
29. List of Members on 28.12.1988 is Ex. DW1/32.
30. Letter dated 09.01.1989is Ex. DW1/33.
31. Bill dated 01.04.1989 is Ex. DW1/34.
32. Letter dated 24.04.1989 is Ex. DW1/35.
33. Summon and petition is Ex. DW1/36.
34. Three original bills are Ex. DW1/37.
35. Letter dated 31.03.1988 is Ex. DW1/38.
36. Summons dated 26.03.1990 is Ex. DW1/39.
37. Bill statement of Account is Ex. DW1/40.
38. Letter dated 21.04.1991 is Ex. DW1/41.
39. Two Circular (38 pages) is Ex. DW1/42.
40. Resident directory is Ex. DW1/43.
41. Bill & Circulars (41 pages) is Ex. DW1/44.
42. Minutes of meeting (2 pages) is Ex.DW1/45.
43. Letter & Minutes (colly) is Ex. DW1/46.
44. Original bills is Ex. DW1/47.
45. Letter dated 24.10.1994 along with circular & notice of the same date. Proforma for seeking election dated November, 1994. Minutes of Meeting dated 01.11.1993 is Ex. DW1/48.
46. Letter dated 19.05.1995 is Ex. DW1/49.
47. Notice dated 23.11.1995 is Ex. DW1/50.
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SINGH Date: 2024.05.31
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48. Pass Book of Bank of Baroda is Ex. DW1/51.
49. Pass Book of Punjab National Bank is Ex. DW1/52.
50. Pass Book of Bank of Baroda is Ex. DW1/53.
51. Pass Book of Syndicate Bank is Ex. DW1/54.
52. Original Pass Book of Syndicate Bank is Ex. DW1/55.
53. Letter dated 01.09.1996 is Mark-B.
54. Letter dated 05.10.1996 is Mark-C.
55. Pass Book of South Indian Bank is Ex. DW1/56.
56. Brochuve & Eklavya & Tickets is Mark-D.
30. During his cross-examination, he denied that he was looking after the flat in question on behalf of the plaintiff and stated that he was looking after the flat as it had been purchased by him from Sh. R. K. Nayak. He had paid Rs.50,000/- towards consideration to Mr. Nayak at the time of sale and as far as he remembered, the transaction with regard to the flat had taken place somewhere in December 1978. No document was executed at the time of the sale transaction as the flat in question was not in existence and there was only proposal as the society was building up the flats. He had paid Rs.50,000/- in cash to Mr. Nayak and the amount was arranged from his personal savings and from family persons and all these facts were explained to his counsel when his written statement and his examination in chief were prepared. As far as he remembered, the first payment towards the installment was made by Mr. Nayak to the society for the transfer of membership of one Santosh Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:27:11 +0530 CS No.18407/2016 (Parveen Singh) Page No.31 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236
31. Pandit to Jyoti Pramanik as he was not domicile / resident of Delhi and the last payment was made somewhere in the year 1987. He denied that after 1978-79, plaintiff had made payments to the society through cheques and drafts. He admitted that all the payment receipts were issued by the society in the name of the plaintiff till the membership was transferred in 1988. He deposed that the documents Ex.PW1/24, Ex.PW1/27, Ex.PW1/28, Ex.PW1/30, Ex.PW1/31, Ex.PW1/33, Ex.PW1/34 and Ex.PW1/35 were the letters which were written by him and volunteered, that these were not addressed to the plaintiff but to Sh. R. K Nayak. He admitted that the addressee name was not mentioned on the above said letters as the same had been mentioned on the envelope. He admitted that the letter Ex.PW1/36 had his signatures at point A. He denied that in response to his letters Ex.PW1/24, Ex.PW1/27, Ex.PW1/28, Ex.PW1/30, Ex.PW1/31, Ex.PW1/33, Ex.PW1/34 and Ex.PW1/35, he used to get amount either in cash or through cheque to be paid to the society, defendant no. 2, towards the cost of the flat or upkeep of the flat. He deposed that Sh. R. K. Nayak used to pay him for his services as mentioned in the above said letters.
32. On being asked that would it be correct to say that by virtue of power of attorney, given to him by the plaintiff, he was acting on behalf of the plaintiff qua the society and others; he denied it and explained, that he did not know plaintiff and plaintiff was just front for Sh. Nayak, who was the promoter and seller of the suit property and facilitated the Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:27:19 +0530 CS No.18407/2016 (Parveen Singh) Page No.32 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 documents required by him to deal with the society and others. He denied that the suit property was rented out by him being the power of attorney holder of the plaintiff and volunteered, that he was the owner of the flat in question. He was then shown rent agreement with M/s Binny Ltd. and he admitted his signatures on all the pages of this rent agreement which was then exhibited as Ex.PW1/D1. He stated that he had not gone through the contents of Ex.PW1/D1. On being suggested that out of the rent amount, Rs.2,130/- was being paid to the society towards repayment of loan to HUDCO, he deposed that the correct position was, that the amount of Rs.2,000/- was the rent and Rs.130/- was the society management charges and half of the rental amount was appropriated towards the installments of the flat. He had never seen plaintiff writing and signing. He could not recognize the signatures of the plaintiff and volunteered, that the plaintiff made different signatures over a period of 40 years. On being asked, how many signatures of plaintiff could he identify, he answered that he could probably identify one signature about which also, he was confused. He denied that he had never paid a single penny either to Sh. R. K. Nayak or to the plaintiff at any point of time. He admitted that the all the receipts issued by defendant no. 2 for the payments received by them after 1978, had been issued in the name of the plaintiff and volunteered, that as the society apartments were not transferable at that period. On being asked, whether he had any document to show that the society flats were not transferable at that time, he answered that he did not have any documents and this Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:27:27 +0530 CS No.18407/2016 (Parveen Singh) Page No.33 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 was the matter of record with the society. He denied that Ex.DW1/2 was never signed by the plaintiff or that Ex.DW1/2 was a forged and fabricated document and had been forged by him. He denied that document Ex.DW1/2 had been artificially made to look like an old document with the help of oil and the marks of the oil were still visible on Ex.DW1/2. He was shown power of attorney dated 01.06.1981 and he stated that he could not identify the signatures of plaintiff as the plaintiff had never signed in his presence, but he admitted, that this document was received by him. This document was then exhibited as Ex.DW1/P1. He denied that M/s Binny Ltd. had vacated the premises in question sometimes in April 1985. He admitted that initially the rent agreement was for a period of two years. He also admitted that a further rent agreement was not executed, however, he had given the permission to M/s Binny Ltd. to remain as a tenant in 1985. He denied that after 1985, the society had not received any payment. He denied that the letter dated 06.12.1988 was a forged and fabricated document or, that the plaintiff had never signed such a letter. He denied that he had forged the signature of the plaintiff on the letter. He was then shown the demand notice issued by House Tax Authority for the years 1994, 1995, 1996, 2000 and 2001 alongwith the payment receipts issued in the name of the plaintiff, which were exhibited as Ex.DW1/P2, and he deposed, that he had paid the house tax for those period and had the receipts of the same were with him and Ex.DW1/P2 were the duplicate receipts. He denied that he and the office bearer of defendant no. 2 had colluded to transfer Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:27:38 +0530 CS No.18407/2016 (Parveen Singh) Page No.34 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 the flat. He deposed that receipt no. 15883 for an amount of Rs.2938/- was issued in the name of the plaintiff in the end of December 1988 and volunteered, that this amount was paid for clearance of final payment towards service charges of the society. He denied that the plaintiff had never received any payment from him nor he had transferred the flat to him. He denied that he was given power of attorney to act on behalf of the plaintiff. He admitted that no registered document had been executed by the plaintiff in his favour with regard to the suit property. He denied that Ex.DW1/17 was a forged and fabricated document.
33. On the issue of purchase of flat and membership by payment of consideration, it has been contended on behalf of the defendant no. 1 that defendant no. 1 had exhibited a receipt of consideration amount as Ex.DW1/2 and the signatures on the receipt tally with the signatures of the plaintiff appearing on admitted document Ex.PW1/D12. It is further contended that the defendant no. 1 had also exhibited a receipts of payment made by him to the society and MCD. These receipts were Ex.DW1/2 (colly). All the receipts and share certificate (Ex.DW1/3) were in original and in possession of the defendant no. 1. It is further contended that the payments had been made from the bank account of the defendant no. 1 and the copies of the pass book had been exhibited as Ex.DW1/52 to DW1/59 which were containing the relevant entry of the payment made to the society and other authorities. The receipts were being issued in the name of the plaintiff as at the relevant time, there was a loan from HUDCO and the transfer of the membership could not Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:27:47 +0530 CS No.18407/2016 (Parveen Singh) Page No.35 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 be effected unless the loan was cleared. The loan of the HUDCO was cleared by the Society in the year 1988 and thereafter in December 1988 the membership was transferred in the name of the Defendant No.1.
34. It has been orally contended by ld. Counsel for defendant no. 1 that the fact that all the payments were made by defendant no. 1 and the original share certificate and the receipts were in possession of the defendant no. 1, are the circumstances reflecting that the defendant no. 1 had become owner of the property in question otherwise, these documents in original would not have been in possession of the defendant no. 1.
35. He has further been contended that there was variance in the signature of the plaintiff in the records of the Society and no account was given for the major variance in the signature. Defendant no.1 during the cross examination of the plaintiff called the record of the society in court and the court could compare and observe that the signature in Ex.PW1/D6, Ex.PW1/D8, Ex.PW1/D9, Ex.PW1/D11, and Ex.PW1/D12 and Ex.PW1/1 and Ex.PW1/D1 were totally different and there was no explanation from the plaintiff as to why he had put different signature on above said documents.
36. Countering it, ld. Counsel for plaintiff has contended that the onus of proving the payment of Rs.50,000/- was upon defendant no.1 and defendant no. 1 in his cross-examination of the plaintiff had merely given one suggestion regarding the alleged payment of Rs. 50,000/- which was denied by the plaintiff. He has further contended that that Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:28:01 +0530 CS No.18407/2016 (Parveen Singh) Page No.36 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 defendant in his evidence had alleged that he had paid Rs.50,000/- to Sh. R. K. Nayak who had no concern or connection with the property. He has further contended that the defendant no. 1 had forged one receipt towards the alleged payment and during his cross-examination, he surprisingly stated that at the time of making of payment, no written document was executed. Hence, the defendant has failed to prove any consideration or alleged letter dated 06.12.1988 whereby the plaintiff had allegedly given consent to the defendant becoming a member of the society in place of the plaintiff.
37. I have considered the rival submissions and gone through the record.
38. The case of the defendant no. 1 is, that in the year 1978, he had made payment of Rs.50,000/- to the plaintiff. During his cross- examination, he suddenly changed his stand and stated that the payment was not made to the plaintiff but was made to Sh. R. K. Nayak, who was the real owner of the property and he stated that he was looking after the flat as it was purchased by him from Sh. R. K. Nayak to whom he had paid the consideration of Rs.50,000/- at the time of sale. Surprisingly, as pointed out on behalf of the plaintiff, defendant during his cross- examination stated that no document was executed at the time of sale transaction as flat in question was not in existence and there was only a proposal as the society was building up the flats. Thus, the change of stand by the defendant without giving any explanation why he had earlier stated that the payment was made to the plaintiff and then stated Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:28:10 +0530 CS No.18407/2016 (Parveen Singh) Page No.37 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 that it was made to Sh. R. K. Nayak raises doubts about the case of the defendant.
39. This brings up the receipt Ex.DW1/2. It is correct that defendant no. 1 has produced this original receipt Ex.DW1/2. However, the question is, whether mere production of the document in original proves the said document? Plaintiff had denied receiving any amount from the defendant. Surprisingly, during the cross-examination of plaintiff, he was not even confronted with this receipt and asked, whether his purported signatures on this receipt, belonged to him or not.
40. It has been contended that the plaintiff has been changing his signatures from time to time and therefore, the signatures on the receipt appeared to be different.
41. However, no handwriting expert was examined to show some kind of similarity between these signatures and the signatures of the plaintiff.
42. It has been contended that the signatures of the plaintiff on Ex.PW1/D12 are similar to his signatures on receipt Ex.DW1/2 and the court can compare these signatures.
43. I have compared these signatures and I find that there is an attempt to create a similarity to these signature but if the purported signatures on Ex.DW1/2 are seen, the flow of the pen, the lack of confidence of the writer reflected by the visible tremble of the hand while appending the signature and the overall manner in which the signatures have been appended reflect a deliberate attempt to copy the Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:28:19 +0530 CS No.18407/2016 (Parveen Singh) Page No.38 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 signatures. The hand is completely trembling and the pressure of the pen reflects a laboured attempt and they are not in free flow.
44. Therefore, firstly, because the plaintiff was never confronted with these signatures and secondly, I find that these signatures have been made with a deliberate effort; I find that defendant no. 1 has failed to prove that Ex.DW1/2 was executed by plaintiff. This is more so in view of the earlier stated fact that defendant no. 1, during his cross- examination, suddenly changed his stand and stated that the payment was not made to the plaintiff but was made to Sh. R. K. Nayak and no document was executed. Meaning thereby even a receipt was not executed. Even otherwise, if the payment has been made to Sh. R. K. Nayak, as has been claimed by defendant no.1, then there was no question of the receipt being issued by the plaintiff. This is more so, as it was nowhere the case of defendant no.1 that though the payment was made to Sh. R. K. Nayak, the receipt was issued by the plaintiff. It is also to be noticed that defendant no.1 who has heavily relied upon the role of the said Sh. R. K. Nayak had failed to even examine him as a witness.
45. I accordingly find that the defendant has failed to prove this receipt and payment of consideration as alleged.
46. It has further been contended on behalf of defendant no.1 that as the original receipts of payments to MCD and the society are in the possession of defendant no. 1 and the plaintiff had remained silent for a very long time, it reflects a circumstance that the plaintiff had Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:28:28 +0530 CS No.18407/2016 (Parveen Singh) Page No.39 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 transferred the ownership of the flat to the defendant. It has also been contended that by virtue of Power of Attorney of the year 1981, he had become owner of the property. He was specifically suggested that he had merely rented out the property to M/s Binny Ltd. on behalf of the plaintiff as attorney of the plaintiff and he denied this suggestion and volunteered, that he was the owner of the flat in question.
47. I have considered the rival submissions and carefully gone through that Power of Attorney, which has been exhibited as Ex.PW1/D13.
48. A bare perusal of the Power of Attorney reflects that it is special Power of Attorney. Usually when a person pays the consideration and seeks the transfer of ownership, the Power of Attorney which is executed is General Power of Attorney. The contents of this Special Power of Attorney clearly show that this was only for the purposes of letting out the property, managing or maintaining the property. It is highly improbable that a person who has purchased the property by paying consideration would accept such a restrictive power of attorney.
49. This brings me to certain letters which have been admittedly written by the defendant no. 1. Though there is a dispute with regard to the person to whom they were written. According to the plaintiff, they were written to him by defendant no.1 and according to the defendant, they were written by him to Sh. R. K. Nayak.
50. Be that as it may, these letters are Ex.PW1/24, Ex.PW1/27, Ex.PW1/28, Ex.PW1/30, Ex.PW1/31, Ex.PW1/33 and Ex.PW13. The Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:28:39 +0530 CS No.18407/2016 (Parveen Singh) Page No.40 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 tone and tenor of these letters is that the defendant is giving an account of managing the property to the owner of the property.
51. Letter Ex.PW1/24 opens up with a statement that in continuance of his promise to the receiver of the letter, he had got the wood work in the flat started. Then he gives explanation why the wood work could not be done in time. Then he requests for an amount of Rs.5,000/- for getting this job done. This letter is dated 10.02.1981.
52. The next letter is Ex.PW1/27 which is dated 29.08.1981. Defendant no.1 opens up this letter by stating that he was sending a circular received from Navketan Cooperative Group Housing Society regarding the amount due as 13th installment and earlier arrears and he was in possession of Rs.4225/- for any contingency that may arise with regard to fixtures etc. Then he states that he has been advised by the receiver of the letter to shift into the flat to take care of it. Then he further states that the receiver of the letter may be worried of the fact that he had lost money on account of rent but explains that the house could not be let out because 50% of the houses were still vacant. He further asked the receiver of the letter to get a draft prepared in the name of Navketan Cooperative Group Housing Society Ltd. and send it to him at the earliest for the payment.
53. The next letter is Ex.PW1/28 which is dated 11.01.1982. In this letter also, defendant no.1 informs the receiver of the letter that the society is not allowing them to have the flat and he requests the receiver of the letter to make arrangements to clear all the arrears in one go.
Digitally signed by
PARVEEN PARVEEN SINGH
SINGH Date: 2024.05.31
13:28:52 +0530
CS No.18407/2016 (Parveen Singh)
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54. The next letter is Ex.PW1/30 which is dated 27.01.1983. In this letter, defendant no.1 informs the receiver of the letter that the wood work in the flat had been completed and that he would have the structural repairs done and then have the electrical fixtures installed. He further tells the receiver of the letter that he would send the details of the expenses but presumed that the wood work bill be around Rs.8,050/-, which would leave only Rs.2,000/- with him.
55. The next letter is Ex.PW1/31 which is dated 11.02.1983. In this letter, defendant no.1 informs that the flat was almost complete and about the progress in the flat.
56. The next is Ex.PW1/33 wherein defendant no.1 sends the receiver the mark statement of a student from Mauritius for whom the receiver of the letter had promised to get a medical seat. Then he asks the receiver of the letter to send him another Rs.5,000/- so that they do not appear as perpetual defaulter to the society.
57. The next letter is Ex.PW1/34 wherein, defendant no.1 states that he was enclosing the statement of account reflecting how much money had been used and that he was enclosing the photocopies of the latest receipts and that he was keeping the originals in the file for the time being and a handwritten statement reflecting the expenses was enclosed with the letter.
58. Irrespective of the fact, whether these letters were written to the plaintiff as claimed by the plaintiff, which is more probable as the plaintiff had produced these letters, or whether these were written to Sh.
Digitally signed by
PARVEEN PARVEEN SINGH
SINGH Date: 2024.05.31
13:29:03 +0530
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R. K. Nayak as claimed by the defendant; the fact which emerges from these letters is, that upto the year 1983, the defendant was patently reflecting himself to be acting on authority of the owner of the flat, who was recipient of these letters. Not only is he explaining to him what was being done in the flat such as wood work, electrical fixtures etc., but he is also continuously demanding money for the payment to the society as the dues of the society. Thus, the entire claim of the defendant that he had purchased the property in the year 1978 and since then he had been dealing with it as his own property, is completely falsified by his own letters. Also is falsified his claim that he was making the payments to the society from his own funds as he has been continuously demanding these payments from the receiver of the letters. So be these letters for Sh. R. K. Nayak as claimed by the defendant or for the plaintiff, the fact that remains is, that the defendant was not acting as the owner of the flat in question. One of these letters also explains why the defendant is in possession of the original receipts because he himself states that he was sending to the recipient of the letter only the photocopies and keeping the originals with him.
59. I accordingly find that through his own evidence, the defendant has failed to prove that by paying Rs.50,000/- in the year 1978, he had purchased the membership of the society or the flat in question from the plaintiff.
60. The further evidence which falsifies the claim of the payments made by the defendant is, that the defendant himself had summoned the Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:29:13 +0530 CS No.18407/2016 (Parveen Singh) Page No.43 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 record from the society and from the said record, he had produced and confronted the plaintiff during his cross-examination with a letter, which was Ex.PW1/D10. The said letter is dated 06.06.1979 i.e. much after the claimed purchase by the defendant in December 1978. This letter is to the effect that plaintiff had sent a bank draft of Rs. 21,888/- to the Secretary of Navketan Group Housing Society.
61. This brings me to the transfer of this flat in favour of the defendant no. 1 by defendant no. 2. This transfer was done on the basis of consent given by the plaintiff vide letter dated 06.12.1988. Surprisingly, the said letter of consent was never proved as per law. The record from the society was summoned during the cross-examination of PW1. A photocopy was produced and it was sought to be confronted to the plaintiff. As it was a photocopy, ld. Counsel for plaintiff objected to it and the court did not allow the witness to be confronted with it and it was marked as Mark X. Why the original of this document was never produced and why the defendant, during his evidence, did not summon this document in original had never been explained. Therefore, the document is not proved as per law.
62. Even otherwise, if the alleged signatures of the plaintiff on this document are seen, they are completely different from any of his signatures on any of the documents on the file especially the documents on the file of the society, which were exhibited as Ex.PW1/D5 to Ex.PW1/D13. Therefore, the society from a bare perusal of the signatures in its record should have sought a clarification and asked Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:29:23 +0530 CS No.18407/2016 (Parveen Singh) Page No.44 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 defendant no. 1 to ask the plaintiff to appear before the society and sign in the presence of the witnesses which was not done. Therefore, on the basis of the said document, no transfer of membership could have been done.
63. I accordingly find that firstly, the defendant no. 1 has failed to prove that he had paid any consideration of Rs.50,000/- to the plaintiff, secondly, the conduct of defendant no. 1 makes it very apparent that in the year 1978, defendant no. 1 had not purchased the property and was not acting as its owner because he had agreed to act as SPA holder of the plaintiff having specific limited powers to deal with the property and then various letter which have been discussed above make it abundantly clear that defendant was not acting as owner of the property. That there was a lot of trust between the plaintiff and the defendant no. 1 is also visible from these letters which may explain the defendant no. 1 having all the original documents including the share certificate. Thus, all these circumstances also do not help the defendant no. 1 to prove that he had purchased the property and had become the owner of the property.
64. That being the case, I find that the transfer of the membership of the society in favour of the defendant no. 1 was not with the consent of the plaintiff and thus, was invalid and resultantly, the transfer of the ownership of flat in favour of defendant no. 1 was also invalid.
65. I accordingly find that the plaintiff is entitled to a decree of declaration as prayed for in prayer (b). It is hereby declared that the transfer of membership in defendant no. 2 society and transfer of Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:29:30 +0530 CS No.18407/2016 (Parveen Singh) Page No.45 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 ownership of flat in question by defendant no. 2 in favour of defendant no. 1 was illegal and void ab initio and plaintiff continues to be the member of the defendant no. 2 society as well as the owner of the flat in question. Consequently, plaintiff is also entitled to a decree of possession against the defendant in respect of flat no. B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi. Issues no. 1 and 2 are accordingly decided in favour of the plaintiff.
ISSUE NO. 33. Whether plaintiff is entitled to a decree of permanent injunction as per prayer 'c'? OPP
66. As it has been found that the transfer of membership of the society and the flat in question in favour of the defendant no. 1 was illegal and void ab-initio, I find that the plaintiff is entitled to the relief of injunction against the defendant no. 1, his agents, representatives, employees, servants etc. for restraining them from transferring, alienating, selling, letting out, handing over of possession in any manner to any person of the property bearing flat no. B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi. This issue is accordingly decided in favour of the plaintiff.
ISSUE NO. 44. Whether plaintiff is entitled to a decree of rendition of accounts as per prayer 'd'?OPP Digitally signed PARVEEN by PARVEEN SINGH SINGH Date: 2024.05.31 13:29:41 +0530 CS No.18407/2016 (Parveen Singh) Page No.46 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236
67. Vide statement dated 03.05.2024, ld. Counsel for plaintiff had stated that he was giving up the relief of rendition of accounts. In view of the said statement, this issue is accordingly disposed of as not pressed.
ISSUE NO. 55. Whether plaintiff is entitled to damages? If so, to what amount? OPP.
68. The onus to prove this issue was upon the plaintiff.
69. As it has been found that the defendant no. 1 has been in possession of the property illegally, defendant no. 1 is certainly liable to pay the damages/ mesne profits to the plaintiff.
70. The question which now arises is, at what rate and for what period such damages should be awarded?
71. The plaintiff has claimed damages of Rs.5,85,000/- @ Rs.5,000/- per month from April 1985 till the filing of the suit.
72. On this issue, plaintiff appearing as PW1 deposed that in November 1990, he came to know through his friends/ relatives that the defendant no. 1 was using and occupying the flat in question without any authority or instructions. On further inquiries, he had come to know that defendant no.1 had got the flat transferred in his name in the year 1988. He further deposed that he inspected the records of the society and found that when the tenant, M/s Binny Ltd., had vacated the flat on 01.04.1985, defendant no. 1 had written to defendant no. 2 society seeking their cooperation for shifting into the said flat. The said request was allowed by the society on 02.04.1985 and thus, the defendant had Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:29:52 +0530 CS No.18407/2016 (Parveen Singh) Page No.47 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 been in possession of the flat since April 1985. He further deposed that due to the wrongful and illegal use and occupation of the flat by defendant no. 1, he was suffering huge damages to the tune of Rs.10,000/- per month. He was entitled to recover the said damages @ Rs.10,000/- per month from the defendants as mesne profits. As regards the past damages, he was restricting his claim to Rs.5,000/- per month only and, was claiming the said damages w.e.f. 02.04.1985, the date when the defendant no. 1 had unauthorizedly occupied the flat in question. He further claimed future damages of Rs.10,000/- per month for the illegal use and occupation of the property.
73. Apart from his oral testimony, plaintiff had not brought any evidence regarding what could be rent of the said flat in the year1985 or afterwards.
74. However on 03.05.2024, ld. Counsel for plaintiff had given a statement that at least from the own admission of the defendant no. 1, it stands proved that the flat could be let out at least @ Rs.2,130/- per month. The said flat was admittedly let out by defendant no. 1 on behalf of the plaintiff to M/s Binny Ltd. at this rate. Therefore, as regards the mesne profits and damages for occupation, it could safely be assumed that plaintiff's flat could have fetched Rs.2,130/- at which it was admitted let out to M/s Binny Ltd. Therefore, in view of the concession of the Ld. Counsel for plaintiff I find that the rate at which the plaintiff would be entitled to damages and mesne profit is Rs.2,130/- per month.
75. The next question is about the period for which the plaintiff will be entitled to the damages as awarded above?
Digitally signed
PARVEEN by PARVEEN
SINGH
SINGH Date: 2024.05.31
13:30:00 +0530
CS No.18407/2016 (Parveen Singh)
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76. According to the plaintiff, the defendant no.1 had been in unauthorized possession of the property in question since 1985 when the said flat was vacated by a tenant namely M/s Binny Ltd. On the other hand, defendant no.1 deposed that the flat was vacated by tenant on 01.04.1987 and right thereafter, he moved into the flat. During his cross- examination, he deposed that the flat was on rent with M/s Binny Ltd from April 1983 to April 1987. He denied that M/s Binny Ltd. had vacated the flat sometimes in 1985. He admitted that initially the rent agreement was for a period of two years. He also admitted that further rent agreement was not executed. However, he stated that he had given permission to remain as a tenant in the year 1985. He denied that he had unauthorizedly occupied the suit property in the year 1985. He had not maintained any record of the payment of the rent as it was directly made by the tenant to the society. He denied that the society had not received any payment after 1985.
77. Admittedly, it was defendant no.1 who was looking after the flat in question. There is no denial that the flat was let out to M/s Binny Ltd. through a written rent agreement Mark PW1/M5 (which is not denied). As per this document, the property was let out w.e.f. May 1983. Admittedly, this rent agreement was for a period of two years and no written agreement for extension was executed. However, defendant no.1 claimed that it was further orally extended by him for a period of two years. From the testimony of plaintiff and the case of the plaintiff, it is obvious that the plaintiff does not have any personal knowledge of the Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.05.31 13:30:09 +0530 CS No.18407/2016 (Parveen Singh) Page No.49 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236 date month or year when defendant no.1 shifted in the premises. His claim that the defendant no.1 shifted in the premises in March 1985 was on the ground that the defendant no.1 had, in March 1985, applied to defendant no.2 seeking permission to shift into the flat and upon such permission being given, defendant no.1 shifted in the flat. However, no such evidence or letter seeking permission of society to shift was proved by the plaintiff. Therefore, the claim of the defendant no.1 that he had shifted in the flat in April 1987 has to be accepted.
78. I accordingly find that the plaintiff is entitled to damages and mesne profits @ Rs.2,130/- p.m. from 01.04.1987 till the date the vacant and physical possession of the premises is handed over to the plaintiff. However, out of the total amount, defendant no.1 shall be entitled to deduct Rs.75,000/- which he admittedly paid to defendant no.2 as the dues towards the flat in question.
RELIEF
79. In view of my findings on issues, it is hereby declared that the transfer of membership of defendant no.2 society and the consequent transfer of ownership of flat bearing no. B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi in favour of defendant no.1 was void ab initio and a nullity and the plaintiff continues to be the owner of this flat.
80. Defendant no.1 is hereby directed to hand over the vacant and peaceful possession of flat bearing no. B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi to the plaintiff.
Digitally signed by
PARVEEN PARVEEN SINGH
SINGH Date: 2024.05.31
13:30:18 +0530
CS No.18407/2016 (Parveen Singh)
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81. Defendant no.1, his agents, representatives, attorney etc. are hereby restrained from transferring, alienating, selling, letting out or handing over the possession in any manner to any person of the flat bearing no.B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi.
82. Defendant no.1 is directed to pay damages/mesne profits to the plaintiff @ Rs.2,130/- p.m. from 01.04.1987 till the date vacant and peaceful possession of the flat bearing no. B-1/33, Azad Apartments, Navketan Cooperative Group Housing Society, Opposite IIT, Sri Aurobindo Marg, New Delhi is handed over by the defendant no.1 to the plaintiff. However, from this amount, defendant no.1 can adjust amount of Rs.75,000 which he had paid to defendant no.2 as dues of the flat in question. Cost of the suit is also awarded to the plaintiff.
83. Decree sheet be prepared accordingly.
84. File be consigned to record room.
Digitally signed byPARVEEN PARVEEN SINGH SINGH Date: 2024.05.31 13:30:28 +0530 Announced in the open court (PARVEEN SINGH) on 31.05.2024. DJ-11, Central District, (This judgment contains 51 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No.18407/2016 (Parveen Singh) Page No.51 of 51 DJ-11/Central/THC/Delhi/31.05.2024 DL-00236