Delhi District Court
Smt. Babita Gupta vs Dr. Puneet Sodhi on 2 July, 2019
DLCT010005632011
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT
JUDGE12, TIS HAZARI COURTS, DELHI
CS No. 14762/16
Smt. Babita Gupta,
D/o Late Sh. Makhan Lal,
R/o 2/39, Roop Nagar,
Delhi - 110007. .... Plaintiff.
Versus
1. Dr. Puneet Sodhi,
W/o Sh. Dilpreet,
2. Smt. Jasbir Kaur Sodhi,
W/o Sh. Jagdish Singh,
Both R/o Plot No. 14,
Siri Nagar Extension,
Delhi - 110052. ..... Defendants.
Date of institution : 14.02.2011
Date of reserving Judgment : 17.05.2019
Date of decision : 02.07.2019
SUIT FOR POSSESSION, MESNE PROFITS / DAMAGES,
DECLARATION WITH CONSEQUENTIAL RELIEF OF PERMANENT
AND MANDATORY INJUNCTION.
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 1 of 42
JUDGMENT
1. Vide this judgment, I shall decide the suit for possession, mesne profits/ damages, declaration with consequential relief of permanent and mandatory injunction filed by the plaintiff against the defendants.
2. Brief facts as stated in the plaint by the plaintiff are that the suit property bearing plot No.14 in Block ZoneH1 in the lay out plan of Sri Nagar Extension Residential Scheme, Delhi area measuring 102 Sq. Meters as shown in red colour in the site plan was allotted by the DDA to one Kishan Lal in the year 197980 (hereinafter referred to as 'suit property') who sold the same to plaintiff for a sum of Rs.12 lacs vide GPA, agreement to sell, receipt etc. on 04.01.1995. At the time of transaction, Sh. Kishan Lal handed over the possession of same. At that time, the suit property was a vacant land and since then the plaintiff was in possession of the same.
On 21.10.2009, when the plaintiff visited the suit property she found that construction work was going on. Immediately, she objected and raised alarm to stop further construction and warned to the persons present there for not to take law in their hands. Till that time, there was illegal construction completed upto ground floor and part Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 2 of 42 barsati. Plaintiff complained to the police on phone and to the J.E. (Building) of MCD but MCD did not take any action. On 8.3.2010, when the plaintiff visited the suit property, the plaintiff came to know that the person who raised illegal construction on the property i.e. defendant herein has preferred an appeal bearing No. 359/2009 titled as Dr. Puneet Sodhi & Anr. Vs. MCD before the MCD Appellate Tribunal. Immediately, the plaintiff moved an application under Order 1 Rule 10 CPC for her impleadment as necessary party in that proceedings but the Appellate Tribunal, MCD Delhi advised the plaintiff to approach the civil court for the redressal of her grievance. She further stated that the defendant has no right, title or interest in the suit property and the construction is illegal and thus, she claimed for decree of possession as well as permanent and mandatory injunction and declaration that the defendant has no legal right, title or interest in the suit property. Hence, the present suit has been filed.
3. Summons of the suit were sent to the defendants and defendants have contested the suit by filing written statement in which they have taken the following preliminary objections : I. The plaintiff has no locus standi to file the present suit;
ii. Suit is barred by limitation;
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 3 of 42 iii. Suit is bad for nonjoinder of the person from whom plaintiff has purchased the suit property;
iv. Suit has not been properly valued as the market value of the suit property is more than Rs. 50 lacs; and v. Suit is beyond pecuniary jurisdiction of this court. On merits, defendants have not denied that the suit property was allotted to Sh. Krishan Lal and possession of the same was handed over to him by DDA on 2.11.1980 however, they denied rest of the contents of the plaint. It is stated that the defendants are in possession of the original letter bearing file No. F42(1)/LSB/(R)/79 dated 2.11.1980. The said plot was sold by Sh. Kishan Lal to Smt. Jasbir Kaur, defendant No. 2 and Ms. Paramjit Kaur, sister of defendant No. 2 by executing agreement to sell, registered Will, receipt all dated 2.9.1993. The General Power of Attorney dated 2.9.1993 was executed by Sh. Kishan Lal in favour of Sh. Harcharanjit Singh, brother of defendant No. 2. Later on Ms. Paramjit Kaur had sold her undivided half share to defendant No. 1 by means of agreement to sell dated 12.8.1996. The General Power of Attorney of the said plot was executed by Sh. Haracharanjit Singh in favour of defendant No. 1 on 22.4.1996 and thus, the defendant has become owner and Sh. Kishan Lal left with no right, title or interest in the Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 4 of 42 said property after execution of agreement to sell dated 2.9.1993. It is further denied that the plaintiff was put in possession of the suit property by Sh. Kishan Lal on 4.1.1995 and defendants have already constructed boundary wall with a gate and a room inside way back in the year 1993 and they were in physical possession. Therefore, question of plaintiff coming in possession of the suit property on 4.1.1995 does not arise. No document has been placed by the plaintiff to show that she was ever in possession of the suit property. Further, it is denied that the plot No. 14 is surrounded by plot No. 13 and 15 and there is a 6 meter vide road and service lane.
It is stated that the plaintiff, in connivance with land grabbers of the area, had started making false complaints with the MCD regarding construction being without sanction however, at the instance of local councilor, the construction existing on the suit property was booked by the MCD under the provisions of Section 343 of the DMC Act and demolition order was passed on 27.10.2009 which was challenged by the defendant by filing appeal bearing No. 359/ATMCD/2009 against the said order which is still pending. Further, it is stated that the alleged document in the nature of agreement to sell, power of attorney, receipt etc. do not in any manner create or confer any right, title or interest in Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 5 of 42 the suit property in view of Section 54 of the Transfer of Property Act. Hence, the defendants have prayed for dismissal of the present suit.
4. Plaintiff has filed replication in which she denied the contents of the written statement as incorrect and reiterated the contents of the plaint as correct.
5. On the basis of the pleadings of the parties, the Ld. Predecessor has framed following issues vide order dated 22.7.2013 for consideration :
1. Whether the plaintiff is entitled for decree of possession of the suit property as prayed for? OPP.
2. Whether the plaintiff is entitled for mesne profits / damages in respect of suit property as prayed for? OPP.
3. Whether the plaintiff is entitled for decree of declaration as prayed for? OPP.
4. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP.
5. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP.
6. Whether the plaintiff has no locus standi to file the Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 6 of 42 present suit? OPD.
7. Whether the present suit is barred by limitation? OPD.
8. Whether the present suit is bad for non joinder of necessary parties? OPD.
9. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD.
10. Whether the suit is barred by the provisions of Section 41 (h) of Specific Relief Act? OPD.
11. Whether the present suit is without cause of action?
OPD.
12. Relief.
6. In order to prove her case plaintiffs has examined herself as PW1 who led her evidence by way of affidavit Ex. PW1/A. Sh Virender Saini, Architect was examined as PW2. Sh. Surender Khanna was examined as PW3. Sh. Raj Kumar was examined as PW4. Sh. Balraj Singh, Dealing Assistant of DDA was examined as PW5. Sh. Naresh Kumar, Ahlmad of the court of Appellate Tribunal was examined as PW6. Sh. Brij Mohan Sharma from House Tax Department was examined as PW7. Sh. Naresh Kumar, Ahlmad from Appellate Tribunal Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 7 of 42 was again examined as PW8. Sh. Vijay Singh, Record Clerk from MCD was examined as PW9.
7. On the other hand, defendants have examined only defendant No. 2 as DW1.
8. Arguments heard from the counsels for the parties.
9. I have considered the submissions and have gone through the case file. My issuewise findings are as follows : ISSUE NO.1 "Whether the plaintiff is entitled for decree of possession of the suit property as prayed for? OPP."
AND ISSUE NO.2 "Whether the plaintiff is entitled for mesne profits / damages in respect of suit property as prayed for? OPP."
AND ISSUE NO.3 "Whether the plaintiff is entitled for decree of declaration as prayed for? OPP."
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 8 of 42 AND ISSUE NO.4 "Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP."
AND ISSUE NO.5 "Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP."
10. All these issues are interconnected hence, I shall decide all these issues simultaneously. In order to get decided the above said issues in her favour plaintiff is required to prove that she is lawful owner of the suit property. As stated to prove the same plaintiff has examined 09 witnesses. Plaintiff/ PW1 in his examination in chief has almost deposed the same facts as stated by her in the plaint therefore, the same are not repeated herein for the sake of brevity. She has relied upon the following documents :
1. General Power of Attorney executed by Kishan Lal in her favour as Mark P1.
2. Special Power of attorney executed by Kishan Lal in Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 9 of 42 her favour as Mark P2.
3. Agreement to sell between Kishan and her as Mark P3.
4. Affidavit of Kishan Lal as Mark P4.
5. Cash receipt of receiving payment of Rs. 12 Lakh from plaintiff executed by Kishan Lal as Mark P5.
6. Possession letter execution by Kishan regarding handing over of suit property to the plaintiff as Mark P6.
7. Will executed by Kishan Lal bequeathing suit property in her favour as Mark P7.
8. Site plan of suit property as Mark P8.
9. Letter dated 3.4.1979 as Mark P9.
10. Letter dated 4.5.1979 as Mark P10.
11. Letter dated 26.6.1979 as Mark P11.
12. Cheque receipt No. 7524 dated 25.7.1979 for Rs.
1675/ as Mark P12.
13. Letter dated 18.9.1979 as Mark P13.
14. Letter No. ACS (7) Shastri Nagar dated Nil as Mark P14.
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 10 of 42
15. Letter dated 29.10.1979 as Mark P15.
16. Letter dated 27.11.1979 as Mark P16.
17. Letter dated 25.1.1980 as Mark P17.
18. Letter dated 4.2.1980 as Mark P18.
19. Letter dated 20.2.1980 as Mark P19.
20. Letter dated 26.5.1980 as Mark P20.
21. Letter dated 26.6.1981 as Mark P21.
22. Perpetual lease as Mark P22.
23. Site plan file No. F42 (1)/79/LSB(R) as Mark P23
24. Copy of complaint dated 22.10.2009 as Mark P24.
25. Certified copy of order dated 8.12.2011 as Mark P
26. Certified copy of order dated 28.3.2013 as Mark P
27. Copy of letter dated 9.12.2011 as Mark A and its reminder as Mark B.
28. Copy of letter dated 3.4.2013 and its reminder as Mark C.
11. In her cross examination, she denied that all the documents i.e. GPA, agreement to sell, SPA, affidavit, receipt are manufactured. She denied the suggestion that Sh. Punit Sodhi was in possession of the Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 11 of 42 suit property and voluntarily stated that she was in possession till 2009. She did not construct any boundary wall and it was an open plot. She denied the suggestion that the boundary wall was constructed by the defendant and the door was affixed in the boundary wall. She had visited the spot with dealer namely Subhash Gulati and Raj Kumar Sharma and had visited the DDA and had personally seen the file. She cannot recollect the date but it was before the purchase. She denied the suggestion that the documents dated 4.1.1995 do not carry signatures of Kishan Lal. Amount of Rs. 12 lacs was paid by her father in cash. He was a tailor and this amount was for her marriage and she was not married till that date. She cannot say how her father arranged money. She denied the suggestion that Kishan Lal had not given her any original documents with regard to suit property and voluntarily stated that the original documents have been placed on record. She denied the suggestion that she had stolen the documents of Kishan Lal from the file of DDA and have placed on record. She cannot say whether Kishan Lal had given to her any document relating to payments made to the DDA. She has not got mutated the plot in her favour in the Municipal record and voluntarily stated that her lease deed is pending in DDA and unless the lease is executed by DDA, she cannot got mutated the property from Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 12 of 42 MCD in her name. She denied the suggestion that the property has been mutated in favour of the defendants in the records of MCD and voluntarily stated that tax can be paid by any person. She had not paid the tax of vacant plot. She denied the suggestion that the defendants were in possession of plot since 1993.
12. PW2 Sh. Virender Saini, Architect has deposed that he has prepared the site plan Ex. PW2/1 and there was no construction at the site in the month of August when he has prepared the site plan, it was a vacant plot. In his cross examination, he deposed that he has not taken photographs at the time of preparation of Ex. PW2/1 and denied the suggestion that he had not visited the site.
13. PW3 Sh. Surender Khanna stated that he is son of Sh. Kishan Lal and he does not know anything about allotment of suit plot bearing No. 14 as he has been residing separately from his father since 1991. He has other brothers namely Bhagat Singh and Nand Kishore Khanna who may know about the same. His father expired on 16.7.2011. In his cross examination, he stated that he has no document in his possession containing photograph of his father. He has seen him signing any document.
14. PW4 Sh. Raj Kumar Sharma, in his evidence by way of Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 13 of 42 affidavit Ex. PW4/A, has deposed that from 199498, he was employed with Sh. Subhash Chand Gulati who was doing business of property dealear. On 4.1.1995, a person named Kishan Lal and Ms. Babita Gupta visited the office of Sh. Subhash Chand Gulati in his presence for discussing about sale and purchase of vacant plot No. 14, Srinagar Extn., Nav Bharat Nagar, Sindhora Kalan, Delhi. Deal was negotiated at Rs.12 Lacs thereafter, they went to the office of SubRegistrar, Pitampura and to the document prepared and came back to the office of Sh. Subash Gulati where they paid Rs. 12 lacs in cash to Kishan Lal and Kishan Lal handed over GPA, SPA, agreement to sell, affidavit, receipt, possession letter, Will all dated 4.1.1995 and also handed over symbolic possession of the plot and also handed over original documents of DDA.
15. In his cross examination, he has stated that he has no document to show that he was working with Subhash Chand from 1994
98. He do not know whether the said plot was in possession of the defendants since 2.9.1993. He had signed as a witnesses on the documents dated 4.1.1995 which are in nature of GPA, SPA, agreement to sell, affidavit, receipt, possession letter and Will. Further, he was confronted with the documents filed on record and he admits that none of these documents have been signed by him. Neither same were Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 14 of 42 prepared in his presence.
16. PW5 Sh. Balraj Singh, Dealing Assistant from DDA has deposed that he has brought the summoned record. He has proved the following documents :
1. Letter dated 3.4.1979 was issued by DDA Asst.
Commissioner to Kishan Lal that he found eligible for allotment of alternative plot as Ex. PW5/1.
2. Letter dated 4.5.1979 issued by DDA to Kishan Lal to participate in draw for allotment of alternative plot as Ex. PW5/2.
3. Letter dated 26.6.1979 issued by DDA to Kishan Lal to give undertaking to pay enhanced compensationas Ex. PW5/3.
4. Copy of receipt issued by DDA dated 25.7.1979 regarding depositing Rs. 1675/ as Mark A.
5. Letter dated 18.9.1979 issued by DDA to Kishan Lal to intimate him that a sum of Rs.1675/ is due towards him as Ex. PW5/4.
6. Letter issued by DDA to Kishan Lal to intimate him that plot no.14 Sri Nagar extn has been allotted to him on Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 15 of 42 perpetual lease basis as Ex. PW5/5.
7. Letter dated 27.11.1979 issued by DDA to Kishan Lal to intimate him to handover the possession of plot no.14 Ex. PW5/6.
8. Letter dated 25.1.1980 issued by DDA to Kishan Lal to intimate him that 102 Sq. yards instead of 100 has been handed over to him as Ex. PW5/7.
9. Copy of letter dated 4.2.1980 written by Kishan Lal regarding depositing of bank draft of Rs. 134/ to Dy.Director (R) DDA as Ex. PW5/8.
10. Copy of letter dated May, 1981 written by Kishan Lal to Dy. Director (Lease) DDA seeking NOC for construction as Ex. PW5/9.
11. Copy of letter dated 26.5.1980 written by Kishan Lal to Dy. Director (LAB) DDA seeking NOC for construction as Ex. PW5/10.
12. Letter dated 26.6.1981 regarding issuing 4 sets of perpetual lease for stamping in favour of Kishan Lal issued by his department as Ex. PW5/11.
17. In his cross examination, he stated that he has no personal Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 16 of 42 knowledge of documents Ex. PW5/1 to Ex. PW5/11. He was shown Ex. PW5/D1 and Ex. PW5/D2 to which he admitted that the same have been issued by DDA.
18. PW6 Sh. Naresh Kumar, Ahlmad from Appellate Tribunal MCD has produced the MCD file No. 359/ATMCD/09 titled Dr. Punit Sodhi & Anr. Vs. MCD and proved certified copy of statement dated 8.12.2011 and order dated 8.12.2011 passed by Sh. A.K. Sarpal, Ld. PO, ATMCD as Ex. PW6/1 (Colly.).
19. PW7 Sh. Brij Mohan Sharma, AZI from House Tax Department has deposed that he has brought the mutation file in respect of property bearing No. 14, Srinagar Extn., Delhi. Initially, the MCD has no record in respect of the suit property however, Smt. Jasbir Kaur and Punit Sodhi had applied for mutation on 24.12.2009 and on the basis of documents i.e. application, indemnity bond, affidavit, photocopy of lease deed in favour of Kishan Lal, photocopy of letter dated 30.12.1981, photocopy of agreement to sell, receipt, registered Will, GPA all dated 2.9.1993 and agreement to sell executed by Paramjit Kaur in favour of Punit Sodhi, Will, cash receipt all dated 12.8.1996, GPA dated 22.4.1996 executed by Harcharanjit Singh in favour of Punit Sodhi and copy of house tax receipts, the mutation was carried out. In his cross Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 17 of 42 examination, he has stated that he has no personal knowledge of the case and deposed on the basis of record.
20. Sh. Naresh Kumar, Ahlmad from Appellate Tribunal, MCD was again examined as PW8 and he brought the appeal file No. 542/ATMCD/12 titled Dr. Punit Soshi & Anr. Vs. North, DMC. He has seen the certified copy of the order dated 28.3.2013 and proved the same as Ex. PW8/1 as per record. In his cross examination, he has stated that he has no personal knowledge of the case.
21. PW9 Sh. Vijay Singh, Record Clerk from MCD has brought the complaint register. He has seen the complaint dated 22.10.2009 and stated that entry of the same is at serial No. 8357. He proved the copy of complaint register as Ex. PW9/A and complaint as Ex. PW9/B. In his cross examination, he stated hat he has no personal knowledge of the case.
22. On the other hand, as stated above, defendant No. 2 has only examined herself as DW1. In her evidence led through affidavit Ex. DW1/A, she has deposed that plot No. 14 was allotted to Kishan Lal on 2.11.1980 by DDA who was in possession of the same and possession of same was handed over to her on 2.9.1993 at the time of sale of said plot and original possession letter was already on record. The said plot Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 18 of 42 was sold by Kishan Lal by means of agreement to sell dated 2.9.1993 in favour of Paramjit Kaur for sale consideration of Rs. 1,60,000/ and Kishan Lal had appointed Sh. Harcharanjit Singh as his attorney vide GPA dated 2.9.1993. Kishan Lal executed receipt of receiving an amount of Rs. 1,60,000/ and also executed Will dated 2.9.1993 in her favour. Smt. Paramjit Kaur had sold her half share to her daughter by executing agreement to sell, Will, receipt dated 12.8.1996 and Sh. Harcharanjit Singh had executed GPA dated 22.4.1996 in favour of her daughter Ms. Puneet Sodhi i.e. defendant No. 1. She further deposed that Kishan Lal has also handed over three receipts relating to the payment of amount of Indian Overseas Bank for preparation of draft in favour of DDA and Kishan Lal had deposed three certified copies of lease deed of the said plot duly stamped by Collector of Stamps with DDA dated 24.12.1981. He has handed over the original sanction letter issued to him by the DDA to her. She has started construction in the month of January July, 2009. She further deposed that the plaintiff want to grab her property in connivance with land grabbers and made false complaints at the instance of local councilor and the MCD had issued demolition order dated 27.10.2009 which was challenged by filing appeal which was allowed vide order dated 8.12.2011 and the order was set Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 19 of 42 aside. The property has already mutated in her favour vide letter dated 7.1.2010. The electricity connection installed in the property existing in her daughter's name. She has relied upon following documents :
1. Agreement to sell of selling suit property dated 2.9.1993 for Rs. 160,000/ executed by Sh. Kishan Lal in favour of Paramjit Kaur and Jasbir Kaur as Ex. DW1/1.
2. GPA dated 2.9.1993 Sh. Kishan Lal in favour of Sh. Harcharanjit Singh authorizing him to do various act qua suit property as Ex. DW1/2.
3. Receipt dated 2.9.1993 of receiving Rs. 160000/ as sale consideration from Smt Paramjit Kaur and Jasbir Kaur as Ex. DW1/3.
4. Registered Will dated 2.9.1993 executed by Sh. Kishan Lal bequeathing suit property in favour of Paramjit Kaur and Jasbir Kaur as Ex. DW1/4.
5. Copy of agreement to sell, Will, receipt dated 12.8.1996 executed by Smt. Paramjit kaur in favour of Puneet Sodhi selling her ½ share in suit property as Ex. DW1/5 (Colly.).
6. Copy of GPA dated 22.4.1996 executed by Sh.
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 20 of 42 Harcharanjit Singh in favour of Puneet Sodhi authorizing him to do various act qua suit property as Ex. DW1/6.
7. Payment Receipts issued by DDA dated 2.7.1981, 24.10.1979 and 26.2.1980 qua suit property as Ex. DW1/8 to Ex. DW1/10.
8. Three deposit receipts issued by Indian Ovderseas bank as Ex. DW1/11 (Colly.).
9. Application for depositing certified copy of Lease deed dated 24.12.1981 for stamping by Kishan lal as Ex. DW1/12.
10. NOC and sanction letter qua suit propertyissued by DDA as Ex. DW1/13.
11. Mutation letter dated 7.1.2010 issued by house tax department MCD transferring suit property in the name of defendant as Ex. DW1/14.
12. Copies of electricity bills dt. 30.09.09, 25.11.09 and MTNL bill dt.09.12.2009 of suit property in the name of Puneet Sodhi as Ex. DW1/15 (colly).
23. In her cross examination, she stated that she is a housewife and 62 years old. Smt. Paramjit Kaur is her sister. She do not know the whereabouts of her sister as she has no good relations with her sister Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 21 of 42 after this dispute. She is residing at 14, Srinagar Extn. She do not remember the place of first meeting when she met mediator and Kishan Lal. She do not remember whethre any earnest money was given or any agreement was executed before 2.9.1993. Her husband is a leading businessman. She has constructed boundary wall and room on the said plot after purchasing the same on 2.9.1993 and she had filed documents before the DDA. She do not remember whether she has any receipt of papers filed before the DDA. She stated that she has never applied DDA for mutation on the basis of documents dated 2.9.1993.She do not know Babita and stated that she came to know about her in the court. She has constructed over a plot when it was purchased in 1993. In 2009 substantial construction was not done and minor construction may have been done.
24. It is contended by the counsel for the plaintiff that from the testimony of plaintiff, it is proved that she has purchased the suit property from Kishan Lal and was in possession and the defendant has unlawfully and illegally encroached upon the suit property therefore, plaintiff is entitled to the decree as prayed.
25. On the other hand, counsel for the defendant has argued that from the testimony of DW1 Smt. Jasbir Kaur, it is proved that the Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 22 of 42 defendant no.2 alongwith Paramjit Kaur are prior purchaser as she purchase the suit property on 02.09.1993 whereas plaintiff has allegedly purchased on 04.01.1995 therefore, once Kishan Lal has sold the suit property to them Kishan Lal, had left no right, title or interest in the suit property which he could transfer to the plaintiff hence plaintiff does not become owner of the suit property.
26. He further argued that since sale of immovable property can be done through sale deed only therefore at the best plaintiff can take plea of part performance and can only seek protection of possession of immovable property. In this regard, he relied upon judgment Suraj Lamp & Industries (P).. vs. State of Haryana & Anr. and since possession of suit property was handed over to the defendant at the time of sale defendants were in possession of suit property since 1993 hence, no question of Kishan Lal handing over of suit property to plaintiff arise therefore the plaintiff is not entitled to any relief and the suit is liable to be dismissed.
27. In most part of Delhi sale of immovable property was not permissible due to restriction placed by various statute like in present case where property being leasehold was not permitted to be sold there fore Delhities come out with the idea of selling the immovable property Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 23 of 42 by way of GPA couple with various other documents like Agreement to sell, will etc., which was even recognized by the Courts as held in Asha M. Jain vs The Canara Bank And Ors. 94 (2001) DLT 841. The relevant para of judgement is reproduced as below:
"16. The power of attorney sales and their effect has been considered in Kuldip Singh v. Surinder Singh, 1999 Rajdhani Law Reporter 20. The learned Single Judge of this Court has observed that power of attorney sales in Delhi is the common mode of sale of immovable property to get over the legislative restrictions of transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of possession to complete the transaction. Further to prevent arbitrary cancellation, Will and affidavit about renouncing rights are taken. The Court repelled the contention that since sub-lease with the Government prohibited transfer, such transfer was opposed to public policy, since in the view of the Court, public policy gets modified with march of time. The Court recognised the fact that restrictions to sell made everyone dishonest and the power of attorney sale method was devised to get over the restrictions. In fact the Government has partially recognised this since even power of attorney buyers can apply for conversion into free hold on paying penalty. The learned Single Judge relied upon the judgment of the Supreme Court in S. Chattanatha Karayalan v. Central Bank of India Ltd. and Ors. AIR 1965 Supreme Court 1856 and Indira Kaur and Ors. v. Sheo Lal Kapoor, , where it was held that in order to arrive at a real nature of transaction, it is open to the Court to look into the attendant and surrounding circumstances and contemporary documents. The learned Single Judge also relied upon the observations in the case of Usha Malhotra v. G.S. Uppal in 1991 Rajdhani Law Reporter 223 dealing with the issue of construction agreement which are camouflage for agreement to sell.
17. We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power of attorney sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the present case. There are two general power of attorneys, special power of attorney and the Will apart from the agreement to sell. One of the general power of attorney is registered. Further the will is also registered. Thus there are two contemporaneous documents which are Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 24 of 42 registered and they lend authenticity to the date of execution of documents. The power of attorneys' are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus there is no doubt that interest has been created in the property in favor of the appellant. Possession is also been handed over. Thus the provisions of Section 53A of the Transfer of Property Act would also come into play. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell. The agreement to sell has nowhere reserved any right on the transferor either for resuming the property or payment of any additional money. The transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have been created in favor of the appellant which cannot be defeated by the attachment order."
28. But in Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr on 11 October, 2011 it is held that immovable properties can be sold through sale deed only. The relevant para of judgment is reproduced as below:
"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 25 of 42 good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create an interest in an immovable property.
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
29. In this case as stated above both parties claimed to purchase the suit properties by way of GPA, agreement to sale etc., and alleged sale documents of both the parties are prior to the Suraj Lamp (Supra) hence despite being not perfect documents of sale could be consider as proof of ownership. Particularly when the original owner Kishal Lal or his legal heir has not come forward to say Kishan Lal has not sold the suit property.
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30. Since defendant has claimed to purchase the suit property in the year 1993, therefore plaintiff is not only require to prove that she has purchase the suit property but has also to disprove that defendant not purchased the suit property from Kishan because if defendant is able to prove that they have purchased the suit property despite plaintiff purchasing the suit property from Kishan Lal would not be entitle to any relief.
31. The plaintiff/PW1 in order to prove that suit property has been sold by Krishan Lal to her has relied upon the documents i.e. GPA ,SPA agreement to sell , affidavit, receipt, possession letter, Will all dated 14.1.1995 mention as EXPW1/1 to PW1/7 in affidavit but deexhibited an marked as P1 to P7. In her cross examination the defen dant has given the suggestion that same does not bear signature of Kishan Lal thus defendant has disputed the execution of these document by Kishan Lal hence onus was upon her to prove that same were exe cuted by Kishan Lal. None of these documents are registered with the SubRegistrar office and all these documents are notarized documents but from the stamp of notary public, the name of notary is not legible. Neither the plaintiff has examine the notary public to prove that same were notarized before him by Kishan Lal nor the witness Subhash Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 27 of 42 Chand, who has been mentioned as attesting witness of said documents, has been examined as witness. Further as per receipt of payment of purchase of suit property Rs.12,00,000/ was paid in cash.
In her cross examination she deposed that said money was paid in cash by her father. But her father is neither the witness in the sale documents executed in her favour nor PW4 Raj Kumar in his evidence has deposed that sale consideration of Rs. 12 Lakh was paid by father of plaintiff/PW1 in his presence. He has also not deposed that plaintiff father was present at the time of payment of sale consideration. Hence in these circumstances plaintiff/ PW1 testimony does not appear to be much convincing.
32. PW4 Sh. Raj Kumar though has deposed that he was working with Subhash Chand, property dealer who broken deal between plaintiff and Kishan Lal and in his presence deal of purchased of suit property was done. In his cross examination though he has deposed that he signed the sale document dt. 04.01.1995 as witness but when he was confronted with the said documents he admits that same were not signed by him. He admit that he do not know whether the documents dt. 04.01.1995 was genuine or forged or fabricated.
Since neither any of the sale documents mark P1 to P7 Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 28 of 42 was signed by him as witness nor he has produced any document to prove that he was working with Subhash Chand. Further plaintiff has not deposed how she knew the address of the PW4 Raj Kumar after such a long gap of 20 years. She has not explain why instead of Subhash Chand who was the property dealer who allegedly broken deal of property and was witness to the sale document mark P1 to mark P7, his employee Raj Kumar has been examined. In these circumstances I do not find PW4 testimony reliable to believe that he was employee of Subhash Chand or that any sale transcation between plaintiff and Kishan Lal took place before him or that document of sale dt. 04.01.1995 were executed by the Kishan Lal in his presence.
33. The plaintiff has also examined Sh. Surender Khanna son of Kishan Lal as PW3. He has deposed that he do not know anything about the allotment of suit property. The documents of sale i.e. GPA, agreement to sell etc., Mark P1 to P7 were not put to him to prove that same were executed by Kishan Lal or that same contain signature of his father. Rather he deposed in the cross examination that he is not acquainted with the signature of his father Kishan Lal. Hence in these circumstances this witness in not helpful to the plaintiff to prove document mark P1 to P7 were executed by the Kishan Lal. In these Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 29 of 42 circumstances, testimony of PW3 is also not helpful to the plaintiff case.
34. PW2 Sh. Virender Saini had stated has he has visited the suit property in August, 2009 and has prepared site plan Ex. PW2/1 and there was no construction at that time. His testimony only proves that the suit property was vacant but do not prove that the plaintiff was in possession of the same. Further, in the said site plan, no date is mentioned that the same was prepared therefore, he also failed to prove that the site plan was prepared in the month of August, September, 2009. Moreover, the preparation of site plan of open/ vacant plot do not prove that plaintiff was in possession of suit property.
35. PW5 has proved the documents regarding allotment of plot to Kishan Lal which is not in dispute hence, this witness is a formal witness and his testimony is not helpful to the plaintiff.
36. PW6 and PW8 i.e. Ahlmad from Appellate Tribunal is also a formal witness and has only proved that plaintiff has filed the application in appeal No. 359/09 with MCD for intervention under Order 1 Rule 10 CPC and she was directed to approached to civil court. He only produced the order Ex. PW6/1 which only proves that Ms. Puneet Sodhi has filed an appeal No. 359/09 before the ATMCD for challenging the demolition order and the demolition order was quashed. PW8/1 only Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 30 of 42 proves that this order was passed by Deputy Commissioner which was challenged by Ms. Puneet Sodhi vide appeal No. 542/09. Hence, he is also a formal witness.
38. PW7 Brij Mohan Sharma is the witness from House Tax Department. He has only deposed that Jasbir Kaur and Puneet Sodhi applied for mutation of the suit property on 24.12.2009 on the basis of documents i.e. application, indemnity bond, affidavit, photocopy of lease deed in favour of Kishan Lal, photocopy of letter dated 30.12.1981, photocopy of agreement to sell, receipt, registered Will, GPA all dated 2.9.1993 and agreement to sell executed by Paramjit Kaur in favour of Punit Sodhi, Will, cash receipt all dated 12.8.1996, GPA dated 22.4.1996 executed by Harcharanjit Singh in favour of Punit Sodhi and copy of house tax receipts. Thus, his testimony is only limited to the extent of mutation of the property in the name of defendant and does not help the plaintiff. PW9 Vijay Singh from MCD only proved that the plaintiff has made complaint dated 22.10.2009 regarding unauthorized construction of the suit property in their office. Hence, he is also merely a formal witness and does not help the plaintiff to prove that she has purchased the property from Kishan Lal and she was in possession of the property since 1995.
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 31 of 42
39. During pendency of the case, the documents were also sent to the CFSL for ascertaining whether the same were signed by Kishan Lal or not and it has given the report that there are not sufficient admitted Hindi signatures from which any opinion can be given. Hence, this report is also not helpful to the plaintiff to prove that the sale documents were signed by Kishan Lal.
40. In these circumstances I am agree with the contention of Ld. Counsel for defendant that plaintiff through the testimonies of witnesses examined by her has failed to prove that documents of sale on the basis of which plaintiff is claiming to purchase the property were executed by the Kishan Lal or that she was in possession of suit property since 1995 and was dispossess by defendant in year 2009. However, I found force in the contention of Ld. Counsel for plaintiff that she was handed over original documents of the suit property by the Kishan Lal which led to presumption that sale documents Mark P1 to P7 were executed by Kishan Lal. Plaintiff has produced documents i.e. letter of DDA dt.03.04.1979 regarding founding Kishan Lal eligible for allotment of alternative plot PW5/1,letter of DDA dt.04.05.1979 EXPW5/2 for taking part in draw of allotment of alternative plot, letter dt. 26.07.1979 EXPW5/3 that Kishan Lal will pay enhanced Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 32 of 42 compensation amount to DDA in lieu of alternative plot, receipt, letter dt. 18/09/1979 EXPW1/4 to deposit a sum of Rs. 1675/ on account of second installment of alternative plot, letter undated of DDA regarding allotment of alternative plot no.14 in Sri Nagar Ext Zone H1, Letter of DDA dt. 27.11.79 EXPW5/6 regarding handing over of possession of suit property, Letter dt. 25.1.80 making demand of Rs.134 excess amount on the ground that instead of 100Sq. yard 102 Sq. yard has been handed over, all addressed to Kishan Lal, letter of Kishan Lal dt. 4.2.80 EXPW5/8 address to DDA regarding depositing of bank draft of Rs. 134 in DDA, letter of Kishan Lal dt. 20.02.80 EXPW5/9 address to DDA for issuing NOC for construction, letter of Kishan Lal dt. 26.05.80 EXPW5/10 address to DDA for issuing NOC for construction, letter of DDA dt. 26.06.1981 EXPW5/11address to Kishan Lal for stamping of perpetual lease. I do not find contention of Ld. Counsel for the defendant that these documents were stolen by the plaintiff from DDA file and have been placed on record. The PW1 has denied the said suggestion. No suggestion has been given to the PW5 Balraj Singh DDA dealing assistant who prove these documents that same were stolen from DDA file. The defendant has also not examine any witness from DDA to prove that same were stolen by the plaintiff from DDA. Hence I held that Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 33 of 42 defendant has failed to prove the said fact. Being in possession of above said original documents of allotment of plot/ suit property prima facie indicate that same were handed over by the previous owner Kishan Lal because he has sold the suit property. Hence in these circumstances I held that plaintiff being in possession of the original document of suit property allotted by DDA prove that he was sold suit property by the Kishan Lal.
41. On the other hand, defendant has only examined herself as DW1 who has deposed that from Kishan Lal, Smt. Paramjit Kaur has purchased the property for a sum of Rs. 1,60,000/ and from Paramjit Kaur, Puneet Sodhi has purchased her half share of the suit property. The defendant has prove the documents i.e. agreement to sell EXDW1/1, receipt DW1/3, Will DW1/4 all dated 2.9.1993 all executed by Kishan Lal in favour of Paramjit Kaur and GPA DW1/2 in favour of Harcharanjit Singh. I am agree with the contention of Ld. Counsel for defendant that out of these documents, Will is a registered document. Since will executed by Kishan Lal is registered in the office of Sub Registrar therefore it can be presume that said will was registered by Sub Registrar after satisfying himself that Kishan Lal has come to execute the same. Further defendant has also produced original Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 34 of 42 possession letter dt. 02.11.1980 Ex.PW5/D1 issued by DDA which prove that Kishan Lal has taken possession from DDA, receipt of depositing Rs.404/ dt. 02.07.81 issued by DDA Ex.DW1/8, receipt of depositing Rs.5125/ Ex.DW1/9 dt. 04.10.79 issued by DDA, receipt of depositing Rs.1340/ dt. 26.02.81 issued by DDA Ex.DW1/10 and NOC Ex.PW5/D2 by DDA , and receipt of depositing Rs. 5725/ dt. 20.07.79, dt. 03.07.79 depositing Rs.1675 issued by Indian overseas bank and receipt of depositing Rs.136/ in Central Bank, all Ex.DW1/11(colly) also prove that these documents were handed over by Kishan Lal which prove that Kishan Lal has sold the suit property to plaintiff no.2 and her sister on 02.09.1993 and executed GPA in favour of Hargyan Singh. Hence I held that Kishan Lal has sold the suit property to defendant also.
42. In view of the above discussion, I held that it is case of double sale by Kishan Lal to both plaintiff and defendants. In that case defendant being prior purchaser would have title of the suit property as once he sold the suit property to defendant, Kishan Lal would left no right, title in suit property to transfer the same to plaintiff.
43. As far as contention of Ld. Counsel for the plaintiff that plaintiff was in possession of suit property since the day of purchase in 1995, the onus was upon the plaintiff to prove that she was in Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 35 of 42 possession of the suit property from 1995 or that she was dispossessed by the defendant on 21.10.2009.
44. As per testimony of PW1 suit property was vacant plot whereas as per the the defendant, it was a plot having one room with boundary walls. The defendant, except her oral testimony, has not produced any other witness that one room was constructed on the suit property. Therefore, I held that she has failed to prove that one room was constructed on the plot/suit property. Hence, in these circumstances, in my view, the suit property was a vacant plot which was constructed only in the year 2009. Though plaintiff has deposed that physical possession of suit property was handed over to her by Kishan Lal but when Kishan Lal, as held above, has already sold the suit property to the defendants no.2 and Paramjit Kaur, no question of him handing possession of suit property to her arise.
45. Further, in a case of vacant plot, the possession of the property can be ascertained only by way of ownership documents like sale deed or by way of revenue record/ house tax mutation/ water/electricity bill or document of similar nature. Both the plaintiff and defendants have failed to produce any documents of the nature as mention above. The onus was upon the plaintiff to proved that she was Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 36 of 42 in possession. But she has failed to prove that she was put in possession by the Kishan Lal in 1995 at the time of execution of sale documents in her favour. Moreover in vacant land it would be impossible to decide who is in possession, and in case of vacant land ownership follows the possession because anybody can enter into the vacant plot at any time and disturb the possession therefore, it would be impossible to decide who is in possession. As stated above since defendant is the prior purchaser, therefore in these circumstances I held that defendants were put into possession prior to the plaintiff and plaintiff was not put into possession of the suit property though Kishan Lal had issue possession letter but same is of no consequence as he has already put defendant in possession of the property.
46. In view of above since I held that defendants being prior purchaser are the owner of suit property whereas since Kishan Lal erstwhile owner has already sold the suit property to defendant he has no right left in the property which he could transfer to the plaintiff therefore plaintiff has failed to proved that she is owner or was in possession of suit property or that she was dispossessed from suit property by the defendant. Hence plaintiff is not entitled to the relief claimed therefore issue no.1 to 5 are decided against the plaintiff. Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 37 of 42 ISSUE NO.6.
"Whether the plaintiff has no locus standi to file the present suit?
OPD."
47. The onus to prove this issue was upon the defendant. In view of my findings that defendant being prior purchaser is the owner of suit property however since plaintiff has also purchased the suit property from erstwhile owner Kishan Lal, therefore it cannot be said that the plaintiff has no locus standi to file the present suit. Issue no.6 is decided against the defendant.
ISSUE NO.7.
"Whether the present suit is barred by limitation? OPD."
48. The onus to prove this issue was upon the defendant to prove that the suit is barred by limitation. The defendant has claimed that the plaintiff has allegedly purchased the property in the year 1995 whereas the suit has been filed on 14.2.2011 therefore, the same has been filed after 12 years and hence, the same is barred by limitation. The plaintiff has claimed that she was in possession of the suit property from 1995 itself and remained till 2009 when defendant has dispossessed her but as stated above she has failed to prove that she is Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 38 of 42 owner of suit property therefore no question of her being in possession or dispossession by defendant arise. Therefore in these circumstance defendant being in possession since 1993 suit file by plaintiff is barred by limitation. Issue decided in favour of the defendant and against the plaintiff.
ISSUE NO.8 "Whether the present suit is bad for non joinder of necessary parties? OPD."
49. The defendant in the written statement, has stated that the suit is bad for non joinder of the person from whom the plaintiff has alleged to purchased the suit property in the year 1995 but in my view, merely non joining of the person from whom she has allegedly purchased the suit property, will not make the suit barred for non joinder, if she is otherwise able to prove that she has purchased the property from erstwhile owner Kishan Lal hence, I decide issue No. 8 in favour of the plaintiff and against the defendant.
ISSUE NO.9 "Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD."
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50. The onus to prove this issue was upon the defendant to prove that the plaintiff has not valued the suit properly. The defendant in the written statement has stated that the suit property is more than Rs. 50 lacs and the same has not been valued properly and the plaintiff has valued the suit property for the purpose of court fees and jurisdiction as Rs. 12 lacs. The onus was upon the defendant to prove that the suit property was more than Rs. 12 lacs on the date of filing of the suit but from the testimony of defendant, nothing has came out that the value of the suit property was more than Rs. 12 lacs. Further, no suggestion has been given to the plaintiff or other witnesses by the defendant to prove that the value of th suit property was more than Rs. 12 lacs hence, I held that the defendant has failed to prove that the suit has not been properly valued for the purpose of court fees and jurisdiction. Issue decided in favour of the plaintiff and against the defendant. ISSUE NO.10 "Whether the suit is barred by the provisions of Section 41 (h) of Specific Relief Act? OPD."
51. The onus to prove this issue was upon the defendant. Defendant has mentioned that the plaintiff has an equally efficacious Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 40 of 42 remedy on the basis of alleged documents therefore, the suit is barred under Section 41 (h) of the Specific Relief Act. However, in my view, since the plaintiff is claiming ownership of the suit property stating that she has purchased the suit property by virtue of GPA, agreement to sell, receipt, Will etc. therefore, there was no need for her to seek relief of declaration of ownership as if she is able to prove that she has purchased the suit property from Kishan Lal, she will be the owner of the property. Therefore, suit is not liable to be dismissed under Section 41
(h) of the Specific Relief Act.
ISSUE NO.11 "Whether the present suit is without cause of action? OPD."
52. The onus to prove this issue was upon the defendant to prove that the suit is without cause of action. The plaintiff has claimed the ownership and possession and other reliefs on the basis that she has purchased the property by virtue of GPA, agreement to sell, receipt, Will etc. and the defendant has illegally encroached upon the same therefore, it cannot be said that the suit has been filed without any cause of action. Therefore, issue decided accordingly in favour of the plaintiff. Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 41 of 42 RELIEF
53. In view of my findings on issue Nos. 1 to 5, I held that the plaintiff is not entitled to any relief. Suit filed by the plaintiff is hereby dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev KumarI)
on 02.07.2019 Additional District Judge12, Central
Tis Hazari Courts, Delhi
02.07.2019
Digitally
signed by
SANJEEV
SANJEEV KUMAR
KUMAR Date:
2019.07.02
17:19:37
+0530
Suit No. 14762/16 Babita Gupta Vs. Dr. Puneet Sodhi & Anr. Page No. 42 of 42