Delhi District Court
Shri. Atin Singhal vs Shri. Banarsi Dass on 31 January, 2022
IN THE COURT OF NEHA GARG,
CIVIL JUDGE-01, CENTRAL DISTRICT, DELHI
CS SCJ No. 598163/16/11
CNR No. DLCT03-000484-2011
Shri. Atin Singhal
S/o Sh. Shri Gopal Gupta
R/o House No. C-2/228,
Janakpuri,
New Delhi-110058 ............Plaintiff
Versus
Shri. Banarsi Dass
S/o Shri Sultan Singh,
R/o House No. 925/5,
Gali Nai Basti, Bazari Sita Ram,
Delhi-110006. ...........Defendant
Date of institution of suit : 31.05.2011
Date on which judgment was reserved : 17.01.2022
Date of pronouncement of Judgment : 31.01.2022
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
JUDGMENT
1. The present suit has been filed for declaration, mandatory and permanent injunction. The brief facts as stated in the plaint are that plaintiff Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 1 of 32 is the owner in possession of portion of Ground Floor (without roof rights/terrace rights), ad measuring 41.80 sq. meters approximately, forming part of built-up property bearing Municipal No. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110 006 (the whole of the property bearing No. 925 is hereinafter referred to as 'suit property') shown in Red Colour in the site plan attached with the plaint. That the said portion of the property as shown in Red Colour in the attached site plan was earlier under tenancy of the father of the plaintiff, namely Shri Gopal Gupta and the same was taken on rent from Shri Banarsi Dass S/o Sh. Sultan Singh (defendant). That the plaintiff had purchased the suit property from the defendant, vide Sale Deed dated 07.02.2011, which was registered in the Office of Sub Registrar-III, Asaf Ali Road, New Delhi with the following particulars:
(i) Registration No. : 1376
(ii) Book No. : 1
(iii) Volume No. : 14045
(iv) Pages : 153 to 162
(v) Dated : 14.02.2011
That above Sale Deed dated 07.02.2011 was got prepared by the defendant from his own Deed Writer namely Sh. Pradeep Kumar Verma, having his office at Bazar Sita Ram, Delhi, a day prior to the execution and registration of Sale Deed. That a site plan was also got prepared by the defendant from his own Draftsman having his seat near the Office of the Sub Registrar III, Asaf Ali Road, New Delhi. That Sale Deed and also the site plan was never shown to the plaintiff before getting the signatures of the Plaintiff on the site plan and also on the Sale Deed just before the Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 2 of 32 presentation of the Sale Deed in the Office of the Sub Registrar, Asaf Ali Road, New Delhi. That the Sale Deed was presented in the Office of the Sub Registrar III, Asaf Ali Road, New Delhi on 07.02.2011 for its registration. During the said period, a notification was published in the newspapers, stating therein that the circle rate on which the properties were being purchased was raised to double, however, the effective date was not notified. That the notification, however, became effective w. e. f. 08.02.2011 and on 07.02.2011 due to heavy rush in the Office of the Sub Registrar Office III, Asaf Ali Road, New Delhi, the Deed Writer did not give sufficient time to the plaintiff to even go through the contents of the Sale Deed dated 07.02.2011, executed by the defendant in favour of the plaintiff. That said Sale Deed was delivered back to the plaintiff after about a month of its registration. That plaintiff had given the said Sale Deed to his father, who had kept the same in safe custody. That defendant has recently got vacated a portion of Ground Floor of the above property from a tenant about one month back. That said portion was just opposite to the portion Marked A to B and is now under possession of the defendant. That said portion is right in front of the portion of plaintiff and there is a common portion coloured Yellow in the site plan attached with the plaint. That there are two doors between point A to B and one door between point B to C, clearly marked in the site plan annexed with the plaint. That the said doors are in existence since the time the suit property was let out by the defendant to the father of the plaintiff about 3½ years back. That the plaintiff is using the common passage and common areas and also WC attached to the suit property, through these doors only. That the defendant has the intention to raise a wall Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 3 of 32 at point A to B and also from B to C marked in the site plan attached with the plaint, so as to close the above three doors, having openings in the common areas, thus causing obstruction to the free passage of the plaintiff to the suit property and also to stop the plaintiff from enjoying the possession of the common portions and WC. That the defendant wants to deprive the right of the plaintiff to use main entrance from the front side of the property and the defendant has every intention to compel the plaintiff to use his entrance from Gali side instead of main entrance on the front side of the property. That the defendant wishes to take the advantage of incorrect site plan attached with the Sale Deed dated 07.02.2011. That the defendant with malafide intentions has not shown the existing correct position of the suit property in the site plan annexed with Sale Deed dated 07.02.2011, by not showing the three doors having opinion towards common areas. That if the defendant succeeds in raising the wall either from point A to B or from point B to C, the plaintiff would not be able to use and enjoy the common rights to use the main entrance and passage. That the defendant has got no right to cause any obstruction to the peaceful use and enjoyment of the common areas attached with the suit property. That there is a door at point 'X' as shown in the site plan annexed with the plaint and in case the defendant is allowed to close the said door, it would cause a great hardship to the plaintiff as the plaintiff would not be able to use the WC attached to the suit property. That the father of the plaintiff namely Shri Gopal Gupta who was a tenant in the suit property, has been using the WC and common areas since the inception of the tenancy and still has got every right to use the WC. That the defendant has got no right to cause any hindrance to the use of only WC Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 4 of 32 available in the suit property. That on 26.05.2011 and again on 27.05.2011, the defendant had tried to close the door affixed at point X in order to cause unnecessary hardship to the plaintiff, so that the plaintiff would not be able to use the WC attached to the suit property. That plaintiff requested the defendant not to play any mischief, but it appears that the defendant is adamant in taking advantage of the incorrect site plan attached with the Sale Deed dated 07.02.2011. That the suit property has not been correctly indicated in the site plan annexed with the Sale Deed dated 07.02.2011 executed by the defendant in favour of the plaintiff. That there are two doors between the portion Marked B to C. That since the defendant is residing on the first floor of the same property, defendant may cause the obstruction by raising a wall at point A to B and from point B to C at any time while the plaintiff is away from the suit property. That plaintiff would suffer an irreparable loss and injury in case the defendant succeeds in causing obstruction to the peaceful enjoyment of the common areas such as main entrance, passage, WC etc. That the site plan as annexed with Sale Deed dated 07.02.2011, is required to be declared as incorrect site plan and further a direction is required to be issued to the defendant for executing a Rectification Deed with correct site plan as per the existing site of property bearing no. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi- 110 006 and to get the same registered in the Office of Sub Registrar III, Asaf Ali Road, New Delhi. That the cause of action for filing the present suit firstly arose on 26.05.2011 and 27.05.2011 when the defendant had mischievously tried to close the door affixed at point X as shown in the site plan annexed with the plaint in order to cause obstruction to the use of WC Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 5 of 32 attached to the suit property. The cause of action again arose when the defendant had tried to obstruct the entry of the plaintiff from the door affixed at point X as well as from the main entrance from the front side of the suit property. That cause of action again arose when the malafide intentions of the defendant for raising a wall in front of the existing doors having opening towards the common areas of the suit property, came to the notice of the plaintiff during the course of discussion on 27.05.2011. That cause of action is still continuing and continues to arise till the defendant is permanently restrained from causing any annoyance/hardship to the plaintiff by causing any obstruction to the use and occupation of the common areas including main entrance, passage and WC etc. attached to the suit property. That defendant may cause the obstruction either by raising a wall at point A to B and/or from point B to C or in any other manner. That thus prayed that a decree of declaration may be passed thereby declaring the site plan annexed with the Sale Deed dated 07.02.2011 executed by the defendant in the name of the plaintiff as incorrect site plan being not in accordance with the details given in the Sale Deed and also not correct as per the existing position of the suit property bearing Municipal No. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110 006. That a decree of mandatory injunction may be passed as a consequential relief directing the defendant to execute a Rectification Deed with correct site plan as per the existing site of property bearing no. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110 006 and to get the same registered in the Office of Sub Registrar III, Asaf Ali Road, New Delhi. That it is prayed that a decree of permanent injunction restraining the defendant from causing any Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 6 of 32 obstruction to the use and occupation of common areas such as main entrance, passage and WC etc. attached with the suit property bearing Rectification Deed with correct site plan as per the existing site of property bearing Municipal no. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110 006 and the defendant be further restrained from raising any construction in the common areas and/or raising any wall from point A to B and point B to C as shown in the site plan annexed with the plaint.
2. Summons were issued to the defendant upon which Written statement was filed on his behalf, thereby denying the averments made in the plaint. It is stated that the suit is hit by Section 41(h) of Specific Relief Act and deserves to be dismissed. It is further submitted that the suit has not been properly valued for the purposes of jurisdiction and court; nor requisite court fee has been paid by the plaintiff. It is submitted that the Sale Deed is not correct and is the result of a calculated fraud, conspiracy and manipulation on the part of the plaintiff etc. deserves to be cancelled and non est for all purposes as duly submitted in the counter claim of the replying defendant, as mentioned herein. That it is not denied that the defendant sold the portions shown in red colour in the site plan, however, it is wrong and denied that the site plan prepared by the plaintiff on 28.05.2011 is not correct or the suit premises has been incorrectly shown in the site plan as alleged. That the Sale Deed as well as the Map attached there with were got prepared by the plaintiff and his father and the defendant was not able to read or understand the contents of the Sale Deed due to his illiteracy. That no copy of the draft or final Sale Deed was provided to the defendant who was having cordial Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 7 of 32 relations with the plaintiff and his father. That taking undue advantage of situation, the plaintiff/his father misdescribed the defendant's portions as common portion which was done in collusion with the Deed Writer.
3. Replication was filed on behalf of the plaintiff to the written statement of the defendant in which the contents of the written statement were refuted while those of the plaint were reiterated.
4. On completion of pleadings, following issues were framed by Ld. Predecessor of the Court on 08.06.2012:-
1. Whether the plaintiff is entitled to decree of declaration declaring the site plan annexed with the Sale Deed dated 07.02.2011 as incorrect? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction directing the defendant to execute Rectification Deed with correct site plan and to get it registered? (OPP)
3. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant from causing obstruction to use and occupation of common areas attached with property no. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110 006 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi and from raising construction in common areas and raising hall from point A to B and from point B to C as shown in Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 8 of 32 site plan? (OPP)
4. Whether the suit is liable to be rejected Under Order 7 Rule 11, CPC? (OPD)
5. Whether the suit is barred by Section 41(h) of Specific Relief Act? (OPD)
6. Relief
5. After framing of issues, the case was fixed for plaintiff evidence.
Evidence
6. In order to prove his case, the plaintiff examined himself as PW-1 by filing an Affidavit in evidence Ex.PW1/A. Plaintiff relied upon the following documents i. e. Original Sale Deed Ex.PW1/1, Original Site plan annexed with the Sale Deed Ex.PW1/2, copy of items published in the newspaper published on 01.02.2011 Mark A, copy of newspaper published on 07.02.2011 Mark B, Site plan annexed with the plaint Ex.PW1/5, photographs Ex.PW1/6 to Ex.PW1/10.
Plaintiff also got examined Sh. Daulat Ram Kashyap, S/o late Sh. R. S. Kashyap, UDC from the Office of Sub Registrar III, Asaf Ali Road, Delhi as PW-2. Plaintiff also relied upon the following documents exhibited by the said witness i.e., copy of Sale Deed Ex.PW2/1 and coloured site plan annexed with the Sale Deed Ex.PW2/2.
These witnesses were duly examined, cross-examined and discharged. Thereafter vide order dated 22.08.2017 the plaintiff evidence was closed and the matter was fixed for defence evidence.
Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 9 of 327. The defendant examined himself as DW1 by filing the Affidavit in evidence Ex.DW1/A. DW-1 has relied upon Disputed Sale deed dated 07.02.2011 Ex.DW1/1, registered map Ex.DW1/2, photographs Ex.DW1/3, Ex.DW1/4 and the photographer's receipt in respect of the developing charges paid as Ex.DW1/5 and site plan Ex.DW1/6.
Defendant also got examined Sh. Vinod Kumar as DW2. These witnesses were duly examined, cross-examined and discharged.
8. Thereafter, defence Evidence was closed vide order dated 03.12.2018 and the matter was fixed for final arguments.
9. Final Arguments were heard at length and the record as well as the written submissions filed on behalf of the parties were carefully perused by this court.
ISSUE WISE FINDINGS:-
ISSUE NO.1: Whether plaintiff is entitled to decree of declaration declaring the site plan annexed with the Sale Deed dated 07.02.2011 as incorrect? OPP
10. The burden to prove the present issue is cast on the plaintiff. It is the case of the plaintiff that the suit property has not been correctly indicated in the site plan (Ex.PW1/2) annexed with the Sale Deed dated 07.02.2011 (Ex.PW1/1), which was executed in his favor by the defendant. That the Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 10 of 32 Sale Deed dated Ex.PW1/1 was got prepared by the defendant from his own Deed Writer namely Sh. Pradeep Kumar Verma, a day prior to the execution and registration of the Sale Deed and that the site plan Ex.PW1/2 annexed with the Sale Deed was also got prepared by the defendant from his own draftsman. That the Sale Deed and the site plan were not shown to the plaintiff before getting his signatures on the same and that the Deed Writer did not give sufficient time to the plaintiff to go through the contents of the Sale Deed in question. Plaintiff has filed on record a site plan Ex. PW1/5, which according to plaintiff reflects the correct status of the suit property. As per plaintiff there are two doors between point 'A to B' and one door between point 'B to C' marked in site plan Ex.PW1/5. As per the averments of the plaintiff, the said doors are in existence since the suit property was let out by the defendant to the father of the plaintiff about 31/2 years back. That the plaintiff is using the common passage and common areas and also WC attached to the suit property through these doors only. That defendant has intention to raise a wall at point 'A to B' and also from point 'B to C' as reflected in the site plan Ex.PW1/2, so as to close these three doors having an opening in the common areas, thus causing obstruction to the free passage of the plaintiff to the suit property and also to stop the plaintiff from enjoying the possession of the common portions and WC. That defendant has every intention to compel the plaintiff to use his entrance from Gali side instead of the main entrance on the front side of the property. That defendant wishes to take advantage of the incorrect site plan attached with the Sale Deed. That defendant with malafide intention has not shown the existing correct position of the suit property in the site plan annexed with the Sale Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 11 of 32 Deed by not showing the three doors opening towards the common areas. That the site plan annexed with the Sale Deed is required to be declared as incorrect site plan being not in accordance with the details given in the Sale Deed and not correct as per the existing portion of the suit property.
11. Ld. Counsel for plaintiff has argued that the averments made in the Registered Sale Deed dated 07.02.2011 (Ex.PW1/1) categorically mentions as follows:
"That in consideration of the said amount, the Vendor doth hereby absolutely sell, convey, transfer and assign the above mentioned property under sale i.e., PORTION OF THE GROUND FLOOR, without roof/terrace rights, having its area 41.80 sq. mtrs. Approx., being part of the built-property bearing Mpl. No.925, situated at Ward No.VIII, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006 and bounded as mentioned above, more particularly shown in RED colour in the plan annexed hereto and common rights to use the main entrance and passage, alongwith the proportionate share of freehold land underneath, UNTO the Vendee with all his/her right, title , interests easements, options, privileges and appurtenances thereto."
That the common portions have been shown in Yellow colour in the site plan Ex.PW2/2. That the site plan annexed with the Sale Deed Ex.PW1/1 was annexed for the purpose of identification. That the site plan Ex.PW2/2 which is the one which is annexed with the Sale Deed Ex.PW2/1, is a true Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 12 of 32 copy available in the office of the Sub Registrar. That perusal of the site plan Ex.PW2/2 indicates that the 'sold portion' is shown in Red colour whereas the 'common portion' is shown in Yellow colour and this was agreed between the parties and recorded in the Sale Deed Ex.PW2/1. Ld. Counsel for plaintiff has further argued that the Sale Deed written on the original Stamp Paper is Ex.PW1/1 and the site plan annexed with the Sale Deed is Ex.PW2/1. That the whole controversy between the parties can be sorted out by comparing the site plan Ex.PW1/2 with the site plan Ex/PW2/2. That the site plan Ex.PW2/2 is in accordance with the contents of the sale deed Ex.PW1/1 and PW2/1 whereas site plan Ex.PW1/2 is not in accordance with the contents of the Sale Deed Ex.PW1/1 and PW2/1. That Ex.PW1/2 is incorrect site plan.
12. It is not a disputed fact between the parties that defendant had sold a portion of the ground floor of suit property bearing no. 925, Gali Inder wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006 to the plaintiff and the same is reflected in Red colour in the four site plans brought on record i.e., site plan Ex.PW1/2, Ex.PW2/2, Ex.PW1/5 and Ex.DW1/6. PW2/2 is the coloured site plan annexed with the Sale Deed registered before the office of Sub Registrar. Plaintiff has relied on the original of the Sale Deed as Ex.PW1/1 and the site plan annexed with the Sale Deed as Ex.PW1/2. So far, the execution of these documents is concerned, the same has not been denied by the defendant.
Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 13 of 3213. Ld. Counsel for plaintiff has argued that the site plan Ex.PW1/2 does not reflect that there are two doors from point 'A to B' and one door from point 'B to C' opening towards the common portion as reflected in Yellow colour in the site plan Ex.PW1/5. Plaintiff has relied on photographs Ex.PW1/6 to PW1/10 to show the three doors opening towards the Yellow portion marked in site plan Ex.PW1/5. Defendant has objected to the mode of proof of these documents. Without going into the aforesaid objection on part of the defendant, it is pertinent to mention that defendant has not denied the existence of these three doors, in fact defendant has himself relied on photographs Ex.DW1/3 and Ex.DW1/4 which also shows the three doors in question. Therefore, it is an established fact that there are three doors opening towards the Yellow portion marked in site plan Ex.PW1/5 which are not reflected in the registered site plan Ex.PW1/2. However, it is worth mentioning that these doors do not find any mention in the original Sale Deed Ex.PW1/1. As has been argued by Ld. Counsel for plaintiff, site plan is a document supporting the Sale Deed and is prepared for the purpose of identification of the property and the site plan has to be in conformity with the Sale Deed especially when plaintiff has not denied the contents or the execution of the Sale Deed. Therefore, site plan Ex.PW1/2 is in consonance with the Sale Deed Ex.PW1/1 so far as the same does not show the three doors opening towards the courtyard.
14. Now coming to the next contention of Ld. Counsel for plaintiff, that the site plan Ex.PW2/2 is in accordance with the contents of the sale deed Ex.PW1/1 and PW2/1 whereas site plan Ex.PW1/2 is not in accordance with Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 14 of 32 the contents of the Sale Deed Ex.PW1/1 and PW2/1 and hence the site plan Ex.PW1/2 is incorrect site plan. This argument of Ld. Counsel is based on the fact that in the original of the registered site plan Ex.PW1/2, the Yellow portion is described as 'common wall' whereas in the coloured site plan Ex.PW2/2 filed before the office of the Registrar, the Yellow portion is described as 'common portion'. Argument of the Ld. Counsel for plaintiff centers around the premise that the site plan Ex.PW2/2 is in conformity the covenants of original Sale Deed Ex.PW1/1 and in view of the same, site plan Ex.PW1/2 is to be declared as null and void.
15. A meticulous perusal of the Sale Deed Ex.PW1/1 reveals that in the Sale Deed Ex.PW1/1 there is no mention of the phrase 'common portion' or the 'common wall'. The Sale Deed Ex.PW1/1 only talks about 'common rights to use the passage'. Therefore, Ld. Counsel for Plaintiff has failed to prove how it can be inferred that site plan Ex.PW2/2 is in conformity with the Sale Deed Ex.PW1/1 whereas site plan Ex.PW1/2 is not in conformity with the Sale Deed Ex.PW1/1. In fact, a meticulous reading of both the site plans Ex.PW1/2 and Ex.PW2/2 shows that both the site plans are in total conformity with each other except for the word 'wall' finding mention in site plan Ex.PW1/2 and the word 'portion' finding mention in the site plan Ex.PW2/1. A mere accidental omission or slip in one word in the two site plans Ex.PW1/2 and Ex.PW2/2 would not entitle the plaintiff to declaration to the effect that site plan Ex.PW1/2 is incorrect specially when plaintiff has failed to make out how site plan Ex.PW1/2 is not in conformity with the Sale Deed Ex.PW1/1.
Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 15 of 3216. In view of the aforesaid discussion, it is clear that plaintiff has failed to discharge the burden to prove the present issue. Accordingly, the present issue is decided against the plaintiff.
ISSUE NO.2: Whether plaintiff is entitled to decree of mandatory injunction directing the defendant to execute rectification deed with correct site plan and to get it registered? OPP
17. Plaintiff is bound to fail on the present issue in view of the finding on the earlier issue so far as plaintiff has failed to prove that the site plan Ex.PW1/2 is not the correct site plan. None the less, I shall also test the merits of the present issue on the touchstone of Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as 'the SRA') which provides that where through fraud or a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. Section 26 of the SRA reads as under:
"Section 26 : Rectification of Instruments:
When Instruments may be rectified (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then
(a) either party or his representative in interest may institute a suit to have the instrument rectified; or Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 16 of 32
(b) The plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under subsection (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may firstly be rectified and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced (4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall at any stage of the proceedings, allow him to amend the pleading on such terms as may be just for including such claim."Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 17 of 32
18. Thus, it is clear that Section 26 of the SRA has a limited application. It is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else. It is not the case of the plaintiff that the rectification is sought on ground of mutual mistake. What has been pleaded by the plaintiff is that the defendant with malafide intention has not shown the existing correct position of the suit property in the site plan annexed with the Sale Deed. In other words, plaintiff is claiming that the site plan Ex.PW1/2 be rectified as the same has been induced by fraud/deceit. Therefore, what has to be determined is whether plaintiff is entitled to rectification of the site plan Ex.PW1/2 on ground of fraud.
19. It is the case of the plaintiff that the Sale Deed dated Ex.PW1/1 was got prepared by the defendant from his own Deed Writer namely Sh. Pradeep Kumar Verma, a day prior to the execution and registration of the Sale Deed and that the site plan Ex.PW1/2 annexed with the Sale Deed was also got prepared by the defendant from his own draftsman. That the Sale Deed and the site plan were not shown to the plaintiff before getting his signatures on the same and that the Deed Writer did not give sufficient time to the plaintiff to go through the contents of the Sale Deed in question. That defendant wishes to take advantage of the incorrect site plan attached with the Sale Deed. That defendant with malafide intention has not shown the Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 18 of 32 existing correct position of the suit property in the site plan annexed with the Sale Deed by not showing the three doors opening towards the common areas.
20. Plaintiff/PW-1 has deposed in his affidavit of evidence Ex.PW1/A that during the beginning of February 2011, a notification was published in the newspapers stating that the Circle Rate of the properties had been raised to double the amount of the existing circle rates, however, the effective date was not notified. Accordingly, there was a huge rush of the buyers for getting their title documents registered in the Office of the Sub Registrar, as the purchasers were apprehending the notification to become effective on any day after the publication of the said notification. That neither the defendant nor the Deed Writer gave sufficient time to the him to go through the contents of the Sale Deed Ex.PW1/1. That he was made to sign on the Sale Deed and the site plan forming part of the Sale Deed. That the Deed Writer had delivered the Sale Deed Ex.PW1/1 to him about a month after the date of its presentation/registration. That the Sale Deed was given by him to his father who had kept the same in safe custody.
21. Furthermore, it has come in the cross-examination of PW-1/plaintiff that the earnest money for the purchase of the disputed portion was paid to the defendant about three months prior to the execution of the Sale Deed on 07.02.2011. PW-1 has further deposed in his cross-examination that the draft of the Sale Deed was prepared on the night of 06/07 of February, 2011. That the same was prepared by Mr. Pradeep Kumar Verma, whom he had met for Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 19 of 32 the first time around 15 days before 06.02.2011. Plaintiff has further deposed in his cross-examination that when he had first met Mr. Pradeep Kumar Verma for the first time 15 days prior 06.02.2011, he had told Mr. Verma the terms and conditions to be incorporated in the draft Sale Deed. That the decision to get the Sale Deed executed on 07.02.2011 was taken in the morning of 06.02.2011. Plaintiff has admitted in his cross-examination that it is possible that the payment of the Stamp Paper was made by him to the Mr. Pradeep Kumar Verma in his office prior to 07.02.2011 and that he may have visited the office of Mr. Pradeep Kumar Verma 4-5 times. Plaintiff has further deposed in his cross-examination that he being the purchaser, had incurred all the expenses pertaining to the execution and registration of the Sale Deed including the Stamp Duty, the drafting charges of the Sale Deed, payment made to the draftsman for making the site plan and other miscellaneous expenses though plaintiff has deposed that all the payment were made through the Deed Writer Mr. Pradeep Kumar Verma.
22. Plaintiff has admitted meeting the Deed Writer for the first time fifteen days before 07.02.2011 and meeting him 4-5 after that. Plaintiff admits he has incurred all the expenses for the preparation of the Sale Deed i.e., Stamp Duty, registration charges, drafting charges, payment made to the draftsman being paid directly to the Deed Writer Mr. Pradeep Kumar Verma. Plaintiff has also admitted that he had told the Deed Writer the terms and conditions to be incorporated in the Sale Deed. It shows that plaintiff had been in touch with the Deed Writer Mr. Pradeep Kumar Verma and told the terms and conditions of the Sale Deed to the Deed Writer. All these facts Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 20 of 32 make it highly unlikely that the Sale Deed and the site plan were not shown to the plaintiff before getting his signatures on the same. Furthermore, plaintiff has failed to examine the Deed Writer Mr. Pradeep Kumar Verma which is a material omission on part of the plaintiff.
23. Be that as may, it is not the case of plaintiff that when he executed the sale deed, he did not know that it is a sale deed that he was executing. It is not his case that he is unlettered or illiterate or that he could not read the instrument in question. In fact, plaintiff has admitted in his cross- examination that he is a graduate from Arubindo College, Delhi University and he understands the contents of the Sale Deed as well as the site plan annexed with the Sale Deed. He does not claim that the sale deed was executed in an intoxicated or unsound state, or under duress or coercion exercised by the defendant, or anyone else. Plaintiff knew the fact that he was executing an instrument of sale. When he had executed the sale deed and site plan in question, it is not open to the plaintiff to claim that the site plan executed between the parties is hit by fraud, because according to the plaintiff the same was executed hurriedly and he did not get enough time to go through the contents of the same. A person executing an instrument of Sale, creating rights and liabilities in favour of the other party is expected to execute the same after going through the contents of the same and the document so executed between the parties cannot be rectified unless and until the party seeking rectification proves that through fraud or a mutual mistake of the parties, the instrument in writing does not express the real intention. In Subhadra & Ors. v. Thankam, AIR 2010 SC 3031, the Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 21 of 32 Hon'ble Supreme Court has held that the provisions of Section 26 of the Act would be attracted in limited cases. The provisions of this Section do not have a general application. These provisions can be attracted in the cases only where the ingredients stated in the Section are satisfied. The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument.
24. In the present case, plaintiff has failed to establish the essential ingredient of Section 26 of the SRA in order to be entitled to the relief of rectification of site plan Ex.PW1/2.
25. In view of the aforesaid discussion, it is clear that plaintiff has failed to discharge the burden to prove the present issue. Accordingly, the present issue is decided against the plaintiff.
ISSUE NO.3: Whether plaintiff is entitled to decree of permanent injunction restraining the defendant from causing obstruction to the use and occupation of the common areas attached with the property bearing no.925, Gali Inder Wali, Bazar Sita Ram, Delhi and from raising construction in the common arreas and raising wall from point A to B and from point B to C as shown in the site plan? OPP
26. The burden to prove the present issue is on the plaintiff. Plaintiff has filed on record a site plan Ex. PW1/5, which according to plaintiff reflects Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 22 of 32 the correct status of the suit property. It is an admitted fact between the parties that before the execution of the Sale Deed dated 07.02.2011, father of the plaintiff was a tenant of the defendant with respect to a portion of the ground floor of the suit property. It is the case of the plaintiff that while the father of the plaintiff was a tenant in the suit property, he also used the WC marked as T4 in the site plan Ex.PW1/5 and common areas marked in Yellow colour in site plan Ex.PW1/5 along with another tenant and that there was no other WC available in the suit property. Plaintiff has further claimed that he has also been using the common passage and common area marked in yellow in site plan Ex.PW1/5 and also WC marked at point T4 in site plan Ex.PW1/5 attached to the suit property through the three doors opening towards the courtyard. Plaintiff has further deposed that he has been using the main door of the suit property and has been entering the open courtyard and using the WC through the door marked 'X' in the site plan Ex.PW1/5. That defendant has intention to raise a wall at point 'A to B' and also from point 'B to C' as reflected in the site plan Ex.PW1/5, so as to close these three doors having an opening in the common areas, thus causing obstruction to the free passage of the plaintiff to the suit property and also to stop the plaintiff from enjoying the possession of the common portions and WC. That defendant has every intention to compel the plaintiff to use his entrance from Gali side instead of the main entrance on the front side of the property. That defendant has tried to close the door affixed at point 'X' as shown in site plan Ex.PW1/5 on 26.05.2011 and again on 27.05.2011, so that plaintiff would not be able to use the WC attached to the suit property.
Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 23 of 3227. A meticulous reading of the Sale Deed reveals that the Vendor has intended to sell the portion shown in Red colour in the site plan Ex.PW1/2. Furthermore, the Vendor has intended to allow the use of the main entrance and passage by the Vendee. As per the averments of the plaintiff, the portion marked in Yellow in site plan Ex.PW1/5 is intended to be used as a common portion with T7 being the main entrance.
28. Plaintiff has admitted in his cross-examination that there is a Gali adjacent to the disputed premises through which there is an entry to the tenanted premises. Plaintiff has also stated in his affidavit of evidence Ex.PW1/A that defendant is compelling him to enter into his portion of the premises through a door having opening in the blind Gali admeasuring 4 ft. wide. That the said door is about 1 ft. above the road level/gali level and that one has to climb 1 feet for entering the suit premises purchased by him. The Sale Deed Ex.PW1/1 also mentions that the suit property is surrounded by a Gali on the North side. Therefore, it is well established that the portion of the plaintiff has access through a door which opens in the 4 ft. wide Gali.
29. Defendant has not denied that the main entrance of the suit property is at point T7 as shown in site plan Ex.PW1/5. The Sale Deed Ex.PW1/1 provides that the Vendee shall have 'the common rights to use the main entrance' and the access from the adjoining Gali to the portion of the plaintiff cannot constitute 'main entrance' as the said access from the adjoining Gali only provides access to the portion of the plaintiff and is not the main entrance of the suit property. Therefore, from a plain reading of the Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 24 of 32 Sale Deed Ex.PW1/1, it is clear that Vendor has intended to allow the use of the 'main entrance', which is shown at point T7 in the site plan Ex.PW1/5.
30. Adverting to the Sale Deed itself, the same provides for common rights to use the passage. Black's law Dictionary (tenth edition) defines passage as:
"2. A right, privilege, or permission to cross land or water; an easement to travel through another's property. 3.The process of traveling, esp. in transit <safe passage>. 4. The act of coming and going <right of passage>.
A passage is an easement to travel over the land of the other. In the present matter, on the basis of the various site plans filed on record, the word passage in respect of the ground floor of the property constitutes the portion marked at T6 i.e., the courtyard marked at T6 in the site plan Ex.PW1/5. The said courtyard at the ground floor is accessible through the main gate as shown at point T7 and door marked 'X' in site plan Ex.PW1/5. Therefore, from a meaningful reading of the Sale Deed Ex.PW1/1 it emerges that parties have agreed that the Vendee shall have common right to use the main entrance at point T7 as shown in the site plan Ex.PW1/5 and right to use door marked at point 'X' in the site plan Ex.PW1/5 since the same opens towards the courtyard and connects the courtyard to main door at T7 and also has right to use the passage at point T6 (courtyard) reflected in the site plan Ex.PW1/5 to reach his portion of the property shown in Red colour in Site plan Ex.PW1/5. However, the terms of the Sale Deed cannot be read to construe that the WC at point T4 in site plan Ex.PW1/5 is common portion Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 25 of 32 which plaintiff is entitled to use, as the same is not part of the passage and is situated separately. The Vendor/defendant has only allowed the Vendee/plaintiff to use the portion at point T6, which is the courtyard, for the purpose of passage. Accordingly, plaintiff cannot occupy any part of the area marked in Yellow in site plan Ex.PW1/5 but can only use the portion marked at point T6 in site plan Ex.PW1/5 as a way of passage through the main door at point T7 and door marked 'X' as shown in site plan Ex.PW1/5, to reach his portion of the suit property.
31. Now I must briefly aver to the defence set up by the defendant. It is the case of the defendant that the Sale Deed was executed with the clear understanding that the portions sold to the plaintiff shall have a separate and independent entry/exit through the adjoining street and that the sold out portions shall be given no access from the main gate or courtyard of the building and also that the doors opening towards court yard shall also be closed by erecting a brick wall there and that plaintiff had given an assurance to the defendant that he will do the needful within a fortnight of the execution of the Sale Deed. Defendant has further alleged that plaintiff had assured him that he will break open a portion of the intervening wall between portion marked 'C' and 'D' in site plan Ex.DW1/6 and affix a gate at point marked 'G' marked in site plan Ex.PW1/6. That the sold out portions and the remaining unsold portions were duly shown in the map registered with the Sale Deed by drawing a proposed wall in the map in Yellow colour. That the plaintiff admitted and his father in collusion with the Deed Writer Sh. Pradeep Verma, who was known to the plaintiff's father, Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 26 of 32 has played fraud on the defendant and has got mentioned in the Sale Deed that the Vendee has the right to use the main gate or the dauri or the Courtyard of the suit property. That plaintiff by taking undue advantage of the illiteracy of the defendant have got wrong facts mentioned in the Sale Deed.
32. At this stage, it becomes pertinent to examine Section 91 and 92 of the Indian Evidence Act,1872 (hereinafter referred to as 'the Evidence Act') which contains the best evidence rule. Section 91 of the Evidence Act forbids proving of the contents of a document otherwise than by the document itself. Section 91 is further supplemented by Section 92 of the Evidence Act, which provides that once the contents of the document have been proved by the document/writing itself, then no evidence can be given of any oral agreement to contradict or change the terms of the contract embodied in the document. In other words, no oral evidence can be given to qualify the terms of the document. Section 92 of the Evidence Act is reproduced as follows:
"92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 27 of 32
Proviso (1) .-- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.."
33. Section 92 is subjected to various provisos which contains various exceptions to the general rule of exclusion of evidence of oral agreement. Once of the provisos (proviso no.1), which is relevant for the purpose of the present discussion, has been reproduced above. Proviso (1) provides that evidence can be given of any fact that would invalidate any document or which would entitle a party to any decree or order relating to the document. The validity of the document maybe questioned on the grounds of fraud, intimidation, illegality, failure of consideration, mistake of law or fact. The defence set up by defendant in his written statement is that of fraud i.e., the document has been prepared by the plaintiff and his father in collusion with the Deed Writer Sh. Pradeep Verma. That plaintiff has played fraud on the defendant by mentioning in the Sale Deed that the Vendee has the right to use the main gate or the dauri or the Courtyard of the suit property. That plaintiff has taken undue advantage of the illiteracy of the defendant and have got wrong facts mentioned in the Sale Deed.
34. It is not the case of defendant that when he executed the sale deed, he did not know that it is a sale deed that he was executing. It is not the case of Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 28 of 32 the defendant that at the time of execution of the Sale Deed Ex.PW1/1 he had requested the plaintiff to read over the contents of the Sale Deed to him in vernacular language and that the plaintiff with malafide intention did not read over the correct contents as mentioned in the Sale Deed. Even if the sake of argument it is assumed that defendant had trusted the plaintiff as the father of the plaintiff was his tenant since 2009, however, from the facts of the case it cannot be inferred that the sanctity of the trust existing between the parties was such that the plaintiff influenced the defendant so much so that the defendant was dissuaded from verifying/understanding the contents of the Sale Deed Ex.PW1/. A person executing an instrument of Sale, creating rights and liabilities in favour of the other party is expected to execute the same after going through and understanding the contents of the same. Defendant knew the fact that he was executing an instrument of sale. Mere illiteracy will not be sufficient to lead to a conclusion of fraud. It is well settled that the oral stipulations when pitched against the written contract, would have to give way to the terms and conditions of the written statement which alone will bind the parties and nothing further. In view of the settled law, the oral testimony/defence of defendant is inadmissible in evidence in view of the written instrument of Sale Ex.PW1/1.
35. Defendant has admitted in his cross-examination that out of the two doors marked A to B in the site plan Ex.PW1/5, has been locked by him from the courtyard side, that however, the remaining two doors still open in the courtyard marked T6. In para 7 of the plaint plaintiff has specifically averred that defendant has the intention to raise a wall at point 'A' to 'B' and Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 29 of 32 also from point 'B to C' marked in the site plan and he has every intention to compel the plaintiff to use his entrance from the Gali side instead of the main entrance on the front side of the property. In reply to the said averments of the plaintiff, defendant has replied in para 7 of reply on merits that these three doors/openings are deemed to be already closed and non-est. Defendant in his written statement has vaguely and evasively denied the averments of plaint, Therefore, as per provisions of Order VIII Rule 3 and 5 of CPC, the defendant is deemed to have admitted the fact that he has intention to raise walls at point 'A' to 'B' and also from point 'B to C' marked in the site plan Ex.PW1/5 and he wants plaintiff to use his entrance from the Gali side instead of the main entrance on the front side of the property. Furthermore, plaintiff has stated in para 10 of his plaint that on 26.05.2011 and again on 27.05.2011, defendant has tried to close the door affixed at point 'X'. Defendant in his written statement has vaguely and evasively denied the averments of plaint, Therefore, as per provisions of Order VIII Rule 3 and 5 of CPC, the defendant is deemed to have admitted the fact that on the dates mentioned above he had tried to close the door affixed at point 'X' in site plan Ex.PW1/5. Reliance is placed on the judgment of the Hon'ble High Court of Delhi in the case of Suzuki Motor vs Suzuki (India) Ltd 2019 (79) PTC 227.
36. In view of the foregoing discussion, the present issue is decided partly in favour of the plaintiff and defendant is hereby restrained from causing obstruction to the use of the main entrance/door marked at point T7 in the site plan Ex.PW1/5, door marked at point 'X' in site plan Ex.PW1/5 and Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 30 of 32 also from obstructing the plaintiff to use the passage marked at point T6 in the site plan Ex.PW1/5 for his ingress and egress. Defendant is further restrained from raising construction in the portion marked as T6 in site plan Ex.PW1/5 so far it affects the easemenatry rights of the plaintiff. Defendant is also restrained from raising wall from point A to B and from point B to C as shown in the site plan Ex.PW1/5.
Considering the nature of Issue no.4 and 5, the same shall be taken together:
ISSUE NO.4: Whether the suit is liable to be rejected Under Order 7 Rule 11, CPC? (OPD) ISSUE NO.5: Whether the suit is barred by Section 41(h) of Specific Relief Act? (OPD)
37. The burden to prove the present issue is on the defendant. Defendant has failed to lead any evidence to prove the present issue. Therefore, defendant has failed to discharge the burden to prove the present issue. Accordingly, the present issue is decided against the plaintiff.
RELIEF:
38. In view of the above said findings on issues, the suit of the plaintiff is decreed in part with the following relief:
Defendant is hereby restrained from causing obstruction to the use of the main entrance/door of property bearing no.925, Gali Inder Wali, Bazar Sita Ram, Delhi marked at point T7 in the site plan Ex.PW1/5, door marked at point 'X' in site plan Ex.PW1/5 and also from obstructing the plaintiff to use Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 31 of 32 the passage marked at point T6/courtyard of property bearing no.925, Gali Inder Wali, Bazar Sita Ram, Delhi as shown in the site plan Ex.PW1/5 for his ingress and egress. Defendant is further restrained from raising construction in the portion marked as T6/courtyard of property bearing no.925, Gali Inder Wali, Bazar Sita Ram, Delhi as shown in site plan Ex.PW1/5 so far it affects the easemenatry rights of the plaintiff. Defendant is also restrained from raising wall from point A to B and from point B to C i.e., as shown in the site plan Ex.PW1/5.
No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after necessary compliance.
Announced in the open Court (Neha Garg)
on this 31.01.2022 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
Atin Singhal vs Banarsi Dass Suit No.598163/16/11 Page 32 of 32