Delhi District Court
Sh. Rajender Singh vs Sh. Meer Singh on 18 July, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Regular Civil Appeal No. 39/2019 (05/2019)
In the matter of:
Sh. Rajender Singh
s/o Sh. Shiv Lal,
R/o: H. No. 536A, Ration Wali Gali,
Village Bijwasan, Delhi 110061.
...........Appellant
Versus
Sh. Meer Singh
s/o Sh. Nihal Singh
R/o: H. No. 537, Ration Wali Gali,
Vill.Bijwasan, Delhi 110061.
..........Respondent
Date of Institution of Appeal : 20.04.2019
Date of transfer to this court : 22.04.2022
Date of reserving judgment : 18.07.2022
Date of pronouncement : 19.07.2022
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 07.03.2019 PASSED BY SH. ARUN KUMAR GARG, LD. ACJ
CUM CCJ/ARC, DWARKA COURT, DELHI
RCA No.39/2019 (05/2019)
Rajender Singh v. Meer Singh
Pages no. 1 of 19
J U D G M E N T:
1. The present appeal has been preferred by plaintiff/appellant against the judgment and decree dated 07.03.2019 passed by ld. trial court whereby the suit of the plaintiff has been dismissed. Plaintiff/appellant and defendant/respondent are hereinafter referred to as per their litigative status before Ld. trial court.
2. Brief facts for disposal of the present appeal are like this:
(i) Plaintiff alleged to have purchased the property bearing no.
536A admeasuring 106.66 sq. yds. Ration Wali Gali, Village Bijwasan, Delhi 110061 from Sh. Hansraj s/o Sh. Chandgi Ram through sale documents dated 31.07.2010 (in short, the suit property). Plaintiff after purchasing the suit property, had taken the electricity connection in his name and same was installed in the suit property. Initially, plaintiff had filed the suit for permanent injunction to restrain the defendant from interfering in his suit property, however, defendant had broken the intervening wall towards the northern side of room/hall measuring 13.5 X 25 ft, forming part of the suit property and illegally entered into the said room/hall of the suit property of plaintiff. The defendant had put another gate from his house and locked the gate which open in the suit property owned by plaintiff.
(ii) Plaintiff alleged that defendant had filed his written statement and claimed that his wife is owner of the suit property which was purchased in two parts, one from Dayawanti in September, 2008 and RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 2 of 19 another from Hansraj in the month of October, 2010, through two registered sale deeds; whereas the documents filed by the defendant regarding portion purchased from Dayawanti is bearing property no. 883 admeasuring 27 sq. mts. i.e. 31.5 sq. yards of size 13.5 x 21 ft. and another documents belongs to property no. 536 admeasuring 51.6 sq. yds. However, the documents annexed with his written statement did not pertain to the suit property.
(iii) Plaintiff alleged that the defendant had stolen the electricity meter of the plaintiff from the suit property, therefore, plaintiff made a complaint against the defendant and his son and a FIR No. 210/2010 under section 380 IPC, PS Kapashera, Delhi have been registered against the defendant and his son, which is pending in the court concerned Ld. MM, Dwarka Courts, Delhi.
(iv) Plaintiff further alleged that in November, 2010 the defendant broke the intervening wall of the room of plaintiff and committed trespass in one room of the suit property, the plaintiff made complaint before the police but the police station Kapashera, Delhi has not registered the FIR against the defendant and, thereafter, plaintiff filed criminal complaint under section 156(3) Cr.P.C. read with section 200 Cr.P.C. against the defendant which is pending in the Court of concerned Ld. MM, Dwarka Courts, Delhi.
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 3 of 19
3. The defendant filed written statement and stated that It is submitted that the suit is not maintainable for mis joinder and non joinder of necessary and proper parties. The suit property owned by Smt. Sarla Devi (wife of defendant) who has purchased the same from vendors i.e. Dayawanti, some portion from whom has been purchased and remaining portion from Sh. Hansraj. Therefore, the suit is bad for non joinder of necessary parties i.e. Smt. Sarla Devi, Sh. Hansraj and Smt. Dayawanti. It is submitted that plaintiff has filed the suit on the basis of some false and fabricated documents (GPA) of property bearing no. 536A and same was purported to be purchased from Hansraj s/o late Sh. Chandgi Ram, who was the owner of house no. 536 and not of house no. 536A. He further submitted that Sh. Hansraj sold his property bearing no. 536 to Smt. Sarla Devi (wife of defendant) by the way of registered sale deed and she has become absolute owner of the suit property. The plaintiff has trespassed the suit property with the help of forged documents bearing the number of the suit property as 536A.
4. It is submitted that the suit property consisted of two portions, one was owned by Smt. Dayawanti and remaining portion by Sh. Hansraj. Smt. Sarla Devi (wife of defendant) purchased the front portion from Smt. Dayawanti in September 2008 and since then, she is in possession in the said portion of the suit property. The back side portion of suit property was owned by Sh. Hansraj, brotherinlaw of Smt. Dayawanti and the said portion was also purchase by Smt. Sarla RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 4 of 19 Devi (wife of defendant) from Sh. Hansraj. The suit property was under lock and key after the purchase of the same by Smt. Sarla Devi. The plaintiff who was in collusion with Sh. Hansraj, opened the lock of the suit property and entered into the same. The GPA relied upon by the plaintiff allegedly executed by Sh. Hansraj did not confer any right, title or interest upon the plaintiff. The details of the suit property depicts that on the north side there is a property of Sh. Meer Singh s/o Sh. Nihal Singh admeasuring 106.66 sq. yards. The correct measurement of the property are admeasuring 27 sq. yds. the front side portion that has been shown as property of Sh. Meer Singh, is infact the property admeasuring 26 sq. belonging to Smt. Sarla Devi, while the back side portion is of Sh. Hansraj admeasuring 43.143 sq. mtrs., and total area is of 70.143 sq. mtrs. i.e. 80 sq. yards and not 106.66 sq. yards.
5. It is stated that the suit is also not maintainable in as much as the plaintiff claimed that he entered into an agreement to sell dated 31.07.2010 with Sh. Hansraj for an amount of Rs. 3,00,000/ for sale of H. No. 356 admeasuring 106.66 sq. yards whereas, Sh. Hansraj was never the owner of 106.66 sq. yards of land and the unregistered power of attorney filed on record shows the house no. as 536A and not the house no. 356. It is submitted that even the agreement to sell has not been placed on record and power of attorney does not confer any right of ownership.
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 5 of 19
6. Thereafter, plaintiff filed replication, reiterating the averments made in the plaint and denied the allegations levelled in the written statement.
7. Thereafter, ld. trial court framed the following issues as under:
1. Whether the plaintiff is the owner of the suit property bearing house no.536A, admeasuring 106.66 sq. yds., Ration Wali Gali, Bijwasan, New Delhi ? OPP
2. Whether plaintiff is entitled for decree of possession, as prayed for ? OPP
3. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for ? OPP
4. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for ? OPP
5. Relief.
8. Thereafter parties led evidence and plaintiff examined himself as PW1 and has deposed in terms of affidavit by way of evidence as Ex. PW1/A, and relied on following documents :
1. Ex.PW1/1 is the site plan (after amendment of plaint)
2. Ex.PW1/2 (colly) is the original agreement to sell dated 31.07.2010
3. Ex.PW1/3 is the original General Power of Attorney dated 31.07.2010
4. Ex.PW1/4 is the original affidavit dated 31.07.2010 RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 6 of 19
5. Ex.PW1/5 is the original receipt dated 31.07.2010
6. Ex.PW1/6 is the original bill dated 31.07.2010
7. Ex.PW1/7 and Ex.PW1/8 are the two original possession letters both dated 31.07.2010 respectively
8. Ex.PW1/9 is the original electricity bill dated 22.11.2011
9. Plaintiff examined Sh. R. C. Joshi, Notary Public, who has proved his details of his notarial register as Ex.PW2/1. Plaintiff has also got examined PW3 Jai Singh, who was examined and cross examined and thereafter, plaintiffs evidence was closed.
10. Thereafter, defendant led evidence and has appeared as DW1 and testified through his evidence by way of affidavit Ex.DW1/1 and proved the following documents as under:
(i) Ex.D1/A is the copy of sale deed dated 05.09.2008,
(ii) Ex.D1/B is the copy of sale deed dated 21.10.2010,
(iii) Ex.D1/C is the copy of FIR No.319/12 dated 23.03.2012
(iv) Ex.D1/D is the affidavit dated 01.03.2013
11. Thereafter, trial court examined DW1 Sh. Vijay Pal Singh, one of the attesting witness to the sale deed executed by Sh. Hansraj in favour of wife of the defendant in respect of property no. 536 admeasuring 51.6 sq. yds., out of khasra no.141, old Lal Dora abadi of Village Bijwasan. Smt. Sarla Devi is examined as DW2 who testified on RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 7 of 19 affidavit of evidence Ex. DW2/A, and has deposed on the lines of DW1/defendant.
12. Thereafter, DE was closed and Ld. Trial Court after hearing the parties, dismissed the suit through the impugned judgment/decree.
13. Feeling aggrieved by the impugned judgment and decree, present appeal has been preferred by the plaintiff and during the course of arguments following contentions has been raised, namely:
(i) The impugned judgment/decree has been passed without appreciating the material on record including the documentary evidence led by the plaintiff and further without appreciating the ratio decendi of the judgment Suraj Lamps (supra).
(ii) Ld. trial court has not appreciated that electricity meter of the plaintiff was stolen by the defendant and his son and FIR has been lodged and further defendant allegedly trespass in the room/hall of the suit property and the complaint in this regard is pending in the concerned Ld. MM, Dwarka Courts, Delhi.
(iii) Ld. Trial Court has not appreciated the fact that Local Commissioner through his report dated 06.07.2013 has reported that the red portion measuring 13.8 X 25 ft is presently possessed by Seva Chander, as tenant inducted by the defendant, while the plaintiff stated that he is the owner of RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 8 of 19 portion shown in red colour in site plan and further the same has been illegally occupied by the defendant in his absence.
(iv) Ld. Trial Court has not appreciated the documents produced by the defendant wherein the suit property is claimed to be bearing property no. 883, which property number is not in existence in between the property no. 536 and property no. 537.
(v) Ld. Trial Court has not appreciated the fact that affidavit of Sh.
Hansraj has been placed on record by the defendant, however, Sh. Hansraj has not come forward to depose, therefore, the said documents cannot be read in evidence.
(vi) Ld. Trial Court has not appreciated the fact that the site plan filed by the plaintiff has not been disputed by the defendant, therefore, this appeal may be allowed and the impugned judgment/decree be set aside.
14. Per Contra, Counsel for defendant has further contended that Ld. Trial Court has rightly appreciated the ratio of judgment in judgment of Hon'ble Supreme Court in the case of Suraj Lamp & Industry Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656.
15. It is further contended that the ratio of Suraj Lamp (supra) was taken into consideration by Hon'ble High Court of Delhi in Bishan RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 9 of 19 Chand v. Ved Prakash judgment passed in RSA no. 131/2018 and in Rajan Singh v. Roshan Lal judgment passed by Hon'ble High Court in CS(OS) 603/2019 and observed that the Hon'ble Supreme Court has laid down the law that immovable property can be transferred only by way of sale as per mandate of Section 54 of the Transfer of Property Act.
16. The defendant has further contended that the ld. trial court has rightly discarded the claim of possession/mandatory injunction of the plaintiff as he failed to prove any title/ownership over the suit property and further court has rightly not granted the permanent injunction by restraining the defendant from interfering with the settled possession of plaintiff except by way of due process of law.
17. The ld. Counsel for defendant further contended that the impugned judgment has been passed by trial court was on the basis of Section 54 of Transfer of Property Act, 1882 as per the mandate of Suraj Lamp (supra) wherein, Hon'ble Supreme Court held that the provision of Section 54 of the Act has to be followed in case of transfer of tangible immovable property of value of one hundred rupees and upwards.
18. The ld. counsel for defendant further contended that section 17 of the Registration Act, 1908 provides that instruments which operate to create, declare any rights, title, interest of value of one hundred and RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 10 of 19 upwards, to or immovable property has to be compulsorily registered and section 49 of the Act enacts that a document which is required to be registered and is not registered cannot be received in evidence. The ld. counsel for defendant further contended that the plaintiff during his cross examination admitted the fact that he has not given Sh. Hansraj the consideration amount of Rs.3 lakhs, which fact lead to conclude that the suit property has not been sold by Sh. Hansraj and the documents produced by the plaintiff are false and fabricated.
19. ld. Counsel for the defendant has further contended that ld. trial court in the impugned judgment in para no. 25 has mentioned that an affidavit of Sh. Hansraj was relied on by the defendant during proceedings, however, he has not been examined by the plaintiff on the aforesaid affidavit and it was further observed that Sh. Hansraj through the above said affidavit has not sold his property to Rajender Singh.
20. The ld. counsel for defendant has contended that in order to pressurize the defendant to surrender his hard earned property the plaintiff has lodged the false FIR No.210/10 against the defendant and defndant has been discharged. It is further contended that plaintiff is in a habit of forging the documents and this fact was admitted by him during his cross examination when he admitted that he has signed as witness upon some GPA's dated 2005 only after 2010. Moreover, the plaintiff has forged the order of Hon'ble Court of Dr. Jagminder Singh RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 11 of 19 and an FIR No. 0066/17 was lodged on the direction of Court against the plaintiff and others for forging the court order. FIR No. 39/12 is also lodged against the plaintiff for forging documents of property bearing no. 536 and trespassing therein.
21. The ld. counsel for defendant has contended that plaintiff has filed an affidavit of Sh. Hansraj with the present appeal, which seems to be forged and fabricated on the face of its as Sh. Hansraj has expired in 2016 and after three years of his death, this affidavit was filed for the first time in appeal and, therefore, prima facie this is a false and fabricated document, this affidavit cannot be taken as evidence at this stage as plaintiff had sufficient time to file the same during trial proceedings.
22. It is further contended that the sale documents has been antedated by the plaintiff to grab the suit property purchased by wife of defendant. The contention of Counsel for plaintiff defendant that affidavit filed by Sh. Hansraj cannot be taken into consideration in as much as the said Sh. Hansraj through the said affidavit has claimed that he was the owner of property bearing no. 536 (the suit property) and not that of property bearing no. 536A and he has never disposed off the suit property to plaintiff, however, this contention is not worth consideration as the said affidavit has been proved as per law.
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 12 of 19
23. Furthermore, the plaintiff has forged the affidavit of Hasnraj/vendor of the suit property, who expired in 2016 and his affidavit is filed after three years of his death and, therefore, appeal deserves to be dismissed.
24. Thereafter, the defendant filed the written submissions and concluded stated that the present appeal was filed against the impugned judgment, however, the ld. trial court has rightly decided the suit as per provisions of law and on the basis of evidences adduced before it. Therefore, the present appeal is an abuse of process of law and is groundless and did not have merit and the same is filed with an aim to harass the defendant.
25. I have heard the Counsel for the parties and with their assistance has gone through the record as well as the written submissions filed by the plaintiff.
26. From the pleadings of the parties, material on record and the rival contentions raised by the Counsel for the parties, following points of determination have arisen in the present appeal:
i. Whether plaintiff is the owner of the suit property and therefore entitled to the possession thereof ?
ii. Whether the plaintiff is entitled to a decree of mandatory/permanent injunction as prayed for?
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 13 of 19
27. It may be noted that plaintiff has claimed the suit property on 31.07.2010 through sale documents Ex.PW1/1 to Ex.PW1/8, these documents are not registered, therefore, these documents are not sufficient to confer any right, title or interest on the plaintiff in as much as after 24.09.2001 agreement to sell required to be registered with payment of 90 per cent of the stamp duty as per the amended provision of Section 53A of the Act. Therefore, as per mandate laid down in Suraj Lamps (supra), plaintiff cannot seek ownership in the suit property. So is the ratio of Rajan Singh (supra), wherein in para no. 1620, it has been observed as under :
"16. Agreement purchasers do not have any right in the property/land agreed to be purchased. The Court, as far back as in Jiwan Das Vs. Narain Das AIR 1981 Del 291 held that an Agreement to Sell does not create any right in the property to which it pertains and merely gives a right to the agreement purchaser to seek specific performance thereof. It was further held that no rights in immovable property are created, even on passing of decree for specific performance and till in execution thereof a Sale Deed is executed.
17. Thus, the suit, insofar as for the relief sought of declaration of ownership on the basis of General Power of Attorney, Will, Agreement to Sell and Affidavit of Possession, even post amendment sought, including by way of the aforesaid two applications, does not lie and no suit therefor can be entertained and/or set in motion.
18. The plaintiff, besides the relief of declaration has also sought the relief of permanent injunction to restrain the defendant from interfering with the possession of the RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 14 of 19 plaintiff of the property and/or from dealing with the property.
19. However the suit, as per paragraph 17 of the amended plaint dated 4 th December, 2019 is valued jointly for the purposes of declaration and permanent injunction at Rs.3 crores and no separate valuation as required in law to be given for the relief of declaration and injunction, has been given. 20. The counsel for the plaintiff states that the plaintiff undertakes to value the suit above the minimum pecuniary jurisdiction of this Court, separately for the relief of permanent injunction alone."
28. Though not quoted, reliance is placed upon Gurmeet Kaur Vs. Harbhajan Singh & Anr. 2017 (241) DLT 339, wherein, in para no. 12(i) it has been observed as under :
"12.(i) The courts below have relied upon the general power of attorney Ex.DW3/1 dated 19.4.1995 executed by the erstwhile owner Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1/Sh. Harbhajan Singh to hold that such document being a registered document would have preference over the unregistered documents Ex.PW1/2 to Ex.PW1/4, but this logic is completely faulty and illegal in view of the ratio of the judgment of this Court in the case of Shri Ramesh Chand (supra), and which makes it clear by reference to the Supreme Court judgment in the case of Suraj Lamps and Industries Pvt. Ltd (supra) that unregistered and unstamped documents executed prior to 24.9.2001 will have benefit of doctrine of part performance under Section 53A of the Transfer of Property Act, and that it is only those agreements to sell which are executed after 24.9.2001 which cannot create rights under Section 53A of the Transfer of Property Act unless they are duly stamped and registered. "
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 15 of 19
29. So far as reliance placed upon the affidavit D1/1D of Sh. Hansraj/Vendor of suit property, is concerned. The plaintiff has never objected to the exhibition of the said affidavit during the examination in chief of defendant and at this stage, it cannot objected in as much as had plaintiff raised the objection at the relevant stage, the defendant would have got the opportunity to prove the said documents by other mode and, therefore, it cannot be stated that the trial Court has wrongly relied upon the said affidavit of Hansraj.
30. Though noted quoted but reliance is placed upon R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P, judgment passed in Appeal (civil) 10585 of 1996, by Hon'ble Supreme Court wherein, it has been observed as under: "The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 16 of 19 fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
31. So far possession is concerned, plaintiff has claimed to be in possession of the suit property in terms of the sale documents dated 31.07.2010 and, thereafter, defendant started harassing the plaintiff and his family. The defendant was away from the house on 26.10.2010 and defendant entered into the house of plaintiff and started demolishing the intervening wall on the northern side of the suit RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 17 of 19 property and illegally possessed the room forming part of the suit property admeasuring 13.5x2.5 ft. This fact was incorporated in the plaint by way of amendment which was alleged by the Ld. Trial Court on 25.07.2017. In this regard, it may be noticed that claim of plaintiff over the suit property is by virtue of Section 53A of the Act i.e. on the doctrine of part performance and it is settled principle of law that this doctrine can be used as as shield and not as a sword in as much as plaintiff can retain his possession on the doctrine of part performance and cannot seek repossession. Hence, I found no ostensible reason to disagree with the findings so recorded by ld. trial Court.
32. As a sequel to the above discussion, this court is of the opinion that plaintiff has never become owner of the suit property in terms of unregistered documents executed in 2010, in as much as the same is not falling within four corners of provisions of Section 53A of the Act. Therefore, plaintiff cannot held to be owner of the suit property and consequently plaintiff cannot seek possession thereof, therefore, I found no ostensible reason to disagree with the finding so recoded by ld. trial court. This appeal being devoid of merits deserves to be dismissed and is hereby dismissed and disposed off accordingly.
33. Trial court record be sent back along with copy of this judgment and appeal file be consigned to the record room.
RCA No.39/2019 (05/2019) Rajender Singh v. Meer Singh Pages no. 18 of 19 Decree sheet be drawn accordingly.
File be consigned to record room.
Digitally
signed by
Dictated and announced on VIJAY VIJAY KUMAR
DAHIYA
19th Day of July, 2022. KUMAR Date:
DAHIYA 2022.07.28
10:25:16
+0530
(DR. VIJAY KUMAR DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS, NEW DELHI.
RCA No.39/2019 (05/2019)
Rajender Singh v. Meer Singh
Pages no. 19 of 19