Delhi District Court
Smt. Suchinder Kumari Bhola vs ). Sh. Pawan Kumar Babbar on 31 August, 2010
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 18.12.1995
Judgment reserved on : 21.08.2010
Judgment delivered on : 31.08.2010
Suit No. 56/08/95
Unique Case ID No. 02404CO129742006
Smt. Suchinder Kumari Bhola
W/o Late Sh. Sharwan Bhola,
R/o 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi.
... Plaintiff
Versus
1). Sh. Pawan Kumar Babbar
S/o Sh. B.L Babbar
2). Smt. Usha Babbar
W/o Sh. Pawan Kumar Babbar
3). Sh. Rajesh Kumar Babbar
S/o Sh. Pawan Kumar Babbar
4). Sh. Narinder Kumar Babbar
S/o Sh. Pawan Kumar Babbar
5). Ms. Vimmi Babbar
D/o Sh. Pawan Kumar Babbar
All R/o 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi.
... Defendants
Suit No. 58/08/96 Date of institution : 16.08.1996
Unique Case ID No. 02404CO129792006
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.1
Sh. Rajesh Kumar Babbar
S/o Sh. Pawan Kumar Babbar,
R/o 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi.
... Plaintiff
Versus
1). Sh. Anil Kumar Bhola
S/o Late Sh. Sarwan Kumar Bhola
2). Smt. Suchinder Kumari Bhola
W/o Late Sh. Sarwan Kumar Bhola
3). Sh. Sanjay Bhola
S/o Late Sh. Sarwan Kumar Bhola
All R/o 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi.
... Defendants
JUDGMENT
1. This common judgment shall decide the two suits Nos.56/08/95 and 58/08/96, as both the suits are in the nature of claim and counter claim for the specific performance of contract of sale on the basis of two separate contracts for performing the terms and conditions of the contract of sale differently, as per the claims of the respective parties on the basis of their alleged contract of sale and both seek for specific performance the contracts against each other.
2. In Suit No. 56/08/95, the plaintiff Smt. Suchinder Kumari Bhola (as defendant no.2 in Suit No. 58/08/96) has claimed the specific Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.2 performance against the defendants on the basis of contract of sale qua ½ portion of the property bearing No. 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi (herein after called the suit property) with the defendants specifically with the defendant no.3 Sh. Rajesh Babbar for the sale of ½ portion of the suit property for a sale consideration of Rs.4.22 lacs
3. Whereas in Suit No. 58/08/96, the plaintiff Sh.Rajesh Babbar (as defendant no.3 in Suit No. 56/08/95) has claimed the specific performance of the contract of sale for the same ½ portion of the suit property on the basis of agreement with one Sh. Anil Kumar Bhola, who is the defendant no.1 in this suit but was not made a party in the earlier Suit No. 56/08/95.
4. As in both the suits, the parties are claiming the specific performance of the contract of sale qua the ½ portion of the suit property, but on different terms but basing on their relevant documents for their claims those are relevant to both the suits, the evidence, ocular as well as documentary, placed in both the suits, had to be considered collectively to decide the respective claims in the Suit Nos. 56/08/95 and 58/08/96, through the common judgment.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.3
5. The Suit No. 56/08/95 was filed for specific performance/possession, damages to the tune of Rs. 39,499.45/- and for permanent injunction in forma paupris.
6. The brief facts of the case in Suit No. 56/08/95 are that the suit was filed in the capacity of forma paupris under Order 33 CPC that the plaintiff Smt. Suchinder Kumari Bhola was an indigent person, had no source of income nor possession of any movable or immovable property except the suit property to pay the Court fees and was totally dependent upon his son and brothers for her livelihood, but later on she filed the Court fees of Rs.6900/- on 02.01.1997 and the suit was registered as a regular suit.
7. The brief resume of the facts as set out from the plaint was that the plaintiff was the owner of the property bearing No. 251/4A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi (herein after called the suit property). Originally the said property was owned by Smt. Viranwali, the mother in law of the plaintiff, who bequeathed the property in favour of the husband of the plaintiff and was subsequently devolved in favour of the plaintiff, after the death of her husband.
8. According to the plaintiff, a portion of the suit property, shown in green in the site plan, was in possession of the defendant no.1 Sh.Pawan Kumar Babbar who was inducted as a tenant who subsequently Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.4 agreed to hand over the vacant possession of such tenanted portion of the suit property to the plaintiff, but at that point of time, the defendant no.3 Sh. Rajesh Kumar Babbar who was the son of the defendant no.1 had agreed to purchase the ½ of the portion of the property shown in red colour in the site plan in his favour for a total consideration amount of Rs.4.22 lacs, who took over the possession of the agreed portion of the property, there and then on such agreement but had failed to pay the consideration amount of Rs.4.22 lacs and thereby the plaintiff was compelled to file the present suit for specific performance of such contract of sale or in alternative seeking a relief for possession and damages for the use and occupation of the suit property, against the defendants, who were in possession of such property since the day of agreement.
9. The plaintiff has also sought a relief for permanent injunction seeking restrainment of the defendants from parting, alienating, transferring of the portion of the suit property that was in possession of the defendants to any 3rd party and also not to use the electricity, water connection and other supplies without paying the arrears of rent to the plaintiff.
10. As per the pleadings of the plaintiff, the defendant nos.1 to 5 were in possession of ½ of the portion of the suit premises shown in red colour in the site plan whereas the plaintiff was in other ½ portion of the suit property at the time of filing of the suit.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.5
11. It is informed through pleadings that the defendant no.1 was inducted as tenant in respect of one room at the ground floor and the other room at the 1st floor along with facilities of common bathroom, latrine, that was a part of the suit premises and at that time, the defendant no.1 was living with other defendant nos. 2 to 5, in that portion. The plaintiff had filed an eviction petition against the defendant no.1, as a consequence of that all the defendants started harassing the plaintiff and her sons and in such circumstances, the plaintiff entered into a compromise/agreement with the defendant no.1 who agreed to hand over the vacant possession of the tenanted premises to the plaintiff and at the same time, the defendant no.3 Sh. Rajesh Kumar Babbar i.e the son of the defendant no.1, agreed to purchase ½ portion (50 sq. yards) of the total suit property consisting of 100 sq. yards for a consideration of total sum of Rs. 4.22 lacs as at that time, apart from the eviction petition, a criminal complaint in the form of a Kalandra was also pending before the Court of SEM, East Seelampur, Delhi and in pursuance of such compromise arrived between the parties qua the suit property, the defendant no.3 on 11.10.1994 gave an undertaking in writing before the Court of SEM, East Seelampur, Delhi, to the effect that he promised to pay Rs.4.22 lacs towards the sale consideration of 50 sq. yards of the suit premises and in good faith, the plaintiff handed over the possession of 50 sq. yards of the suit property i.e ½ of the portion of the suit premises and the defendant no.1 handed over the tenanted premises to the plaintiff wherein the plaintiff along with her Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.6 family had shifted and a boundary wall was also constructed dividing the two portions, ½ of each was in occupation of the plaintiff and her family members and the other ½ in occupation of all the defendants, thereby the possession of the agreed portion in agreement was handed over to the defendants, at the time of the contract of sale but the consideration amount of Rs.4.22 lacs towards the sale of such portion consisting of 50 sq. yards of the suit property was never advanced to the plaintiff within 3 months of the date of agreement on 11.10.1994 and the defendants continued in possession of the portion of the suit property in their use and occupation and since then, the defendants have not handed over the possession of the suit property to the plaintiff despite they failed to pay the amount of sale consideration to the plaintiff.
Thus, the plaintiff had filed the suit praying for a decree for specific performance of the contract directing the defendants to pay Rs.4.22 lacs towards the consideration amount for execution of the sale documents in favour of the defendant no.3 or in alternative to hand over the vacant and peaceful possession of the portion in use and occupation of the defendants, also praying for a decree of damages against the defendants to pay a sum of Rs.39,499.45/- (including Rs.32,500/- towards damages for the use and occupation charges w.e.f 11.10.1994 to 10.11.1995 @ Rs.2500/-p.m along with an interest @ 18% per annum till the date of payment), and to further pay for the use and occupation charges from the date of institution of the suit till disposal of the matter and also for a sum of Rs.4040/- towards electricity charges and Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.7 Rs.459.45/- towards water consumption charges. It was also prayed that a decree for permanent injunction be also passed restraining the defendants from creating a 3rd party interest in the portion which is presently in use and occupations of the defendants.
12. The suit is contested by the defendants on the plea that the total consideration amount was not Rs.4.22 lacs but it was an amount of Rs.1,22,500/- that the sale agreement was manipulated changing the total consideration amount from Rs.1,22,500/- to make it an amount of Rs.4.22 lacs and that there was no such agreement dt.11.10.1994 and that the defendant no.3 has never given any undertaking in writing before the Court of SEM, East Seelampur, Delhi, to the effect that he promised to pay an amount of Rs.4,22 lacs towards the sale consideration of 50 sq. yards of the suit property and that vide such agreement, only the tenanted premises was exchanged wherein the portion in his occupation was to be handed over and the new portion as agreed upon was to be given possession and that was actually acted upon vide which the defendant no.1 had taken the possession of such portion for the terms of agreement that was much prior to the date of 11.10.1994, as alleged.
13. The defendant no.3 had contested the suit submitting that the plaintiff has suppressed material facts regarding agreement dt.08.09.1994 and that in fact as per the terms and conditions of the agreement dt.08.09.1994, he entered into an agreement to purchase the property in Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.8 question for a total consideration amount of Rs.1,22,500/- and an advance of Rs.20,000/- was paid to one Sh. Anil Kumar, one of the sons of the plaintiff on 08.09.1994 on the date of execution of such sale agreement and the balance amount of Rs.1,02,500/- was to be paid to the plaintiff and the other co-owners of the property on or before 10.09.1994 when the documents were to be executed upon and in execution of such agreement on 10.09.1994, a sum of Rs,10,000/- in cash was paid to the plaintiff and the balance amount of Rs.92,500/- was to be paid before the Sub- Registrar concerned, Delhi, at the time of execution of necessary documents by the plaintiff and other co-owners of the property, but, as the plaintiff and her two sons failed to execute the same, the balance amount was not paid.
Also, the defendant no.3 has also filed the suit bearing No.58/08/96 titled as 'Rajesh Kumar Babbar V/s Anil Kumar & Ors.' for execution of such sale agreement seeking a claim for specific performance of the agreement and permanent injunction against the plaintiff and her sons.
14. Also that it was only a manipulation to confuse both these compromises viz. one was with the defendant no.1 and the plaintiff and other was between the defendant no.3 and the plaintiff and her sons, to make it a sale of the property in question, shown in red colour in the site plan, for the consideration amount of Rs.4.22 lacs by planting cuttings over such documents.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.9
15. The defendant no.1 has also contested the suit on the legal ground that the suit is barred under section 50 of the DRC Act, as the provisions of DRC Act were applicable for the tenanted premises and the suit for possession was barred under section 50 of the DRC Act and also that it was bad for mis-joinder of the necessary parties as the defendant nos.2, 4 and 5, were made the parties to the suit though they were not the necessary parties, as it was a cause of action only against the defendant no. 1 or 3.
16. The suit was also contested on the ground that it was barred under Order 1 Rule 9 of CPC for non-joinder of the necessary parties i.e Sh. Anil Kumar & Sh. Sanjay Kumar, the sons of the plaintiff who were the party to the agreement being the co-owners of the property in question and also bad for mis-joinder of the necessary parties, the defendant no.1,2,4 and 5 who were not the necessary parties but were made the parties to the suit, also that the suit was not properly valued for the purpose of Court fees, jurisdiction and that the suit was liable to be dismissed on legal points apart from facts produced in twisted manner.
17. The defendant nos. 2, 4 and 5 have also contested the suit on the ground that they were not connected with the suit property in any manner and were made parties un-necessarily and that the suit of the plaintiff against them is liable to be dismissed. Also on the ground that the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.10 suit was not properly valued for the purpose of the Court fees and jurisdiction.
18. The replication to the written statement was filed by the plaintiff reiterating the facts as stated in the plaint and denying the averments of the defendants in the written statements.
19. The brief facts of the case in Suit No. 58/08/96 are that the suit was filed for specific performance of the agreement and for permanent injunction.
20. In brief, the plaintiff Rajesh Babbar (defendant no.3 in Suit No.56/08/95) interalia stated that on 08.09.1994 the defendant no.1 Sh.Anil Kumar Bhola along with all other defendants Smt. Suchinder Kumar Bhola (the plaintiff in Suit No.56/08/95), his mother and Sh. Sanjay Bhola, his brother (defendant nos. 2 and 3 herein), had entered into an agreement with him to sell ½ portion of the property bearing No. 251/4 A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi-32 (the same portion of the suit property as was of Suit No.56/08/95 shown in red colour in the site plan herein after would be called as suit property) the structure constructed on a plot of land measuring 100 sq. yards for a consideration of Rs.1,22,500/- and in terms of the agreement to sell, the plaintiff paid an advance sum of Rs.20,000/- to the defendant no.1, Anil, out of the total sale consideration amount of Rs.1,22,500/- and the balance amount of Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.11 Rs.1,02,500/- was required to be paid on or before 10.09.1994. Further, on 10.09.1994, the amount of Rs.10,000/- was also paid in cash to the defendant no.3 Sanjay Bhola, another son of Smt. Suchinder Kumari Bhola (the plaintiff in Suit No. 56/08/95) and the balance amount of Rs.1,02,500/- was to be paid before the Sub-Registrar, Seelampur, Delhi, at the time of execution of documents, but the defendants failed to execute the same on one or the other pretext and thus, the present suit was filed praying for a decree for specific performance of the agreement dt. 08.09.1994 against the defendants directing them to execute a sale deed in respect of ½ of the portion of the suit property i.e the portion measuring 50 sq. yards, shown in red colour in the site plan and also for a decree of permanent injunction against the defendants, thereby restraining them or their agents from transferring, alienating, selling or disposing of such suit property in any manner.
21. In the plaint, it was mentioned that during the pendency of the criminal proceedings under section 107/150 of Cr.P.C before the Court of Sh. S.S Mehta, Special Executive Magistrate (SEM), East District, Delhi, Smt. Suchinder Kumari Bhola, the defendant no.2 had agreed to sell the property measuring 50 sq. yards that was ½ of the portion of the suit property for a sum of Rs.1,22,500/- and she admitted to have received an amount of Rs.30,000/- from the plaintiff and the agreement to sell was signed on that day and that in the orders dt. 29.06.1995 passed by the SEM, it was observed in such orders that the defendant no.2 Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.12 Smt.Suchinder Kumar Bhola has sold 50 sq. yards of the property in dispute for the value of Rs.1,22,500/- to the plaintiff and that the balance amount of Rs.92,500/- was offered to the defendants even before the SEM and thereafter a draft of Rs.92,500/- payable at Union Bank of India, Karol Bagh, New Delhi, dt.02.05.1996 was got prepared in the name of the defendant no.2 and was delivered before the SEM where the defendants have refused to accept the same and that instead of performing their part of obligations created under the agreement under reference, the defendants have manipulated and filed a false and baseless suit on 16.12.1995 falsely claiming that the suit property was agreed to be sold for a sum of Rs.4.22 lacs. Thus, it was prayed that the defendants may be directed to perform their part of obligation by executing the sale documents for the ½ portion of the suit property accordingly.
22. In the counter pleadings of the defendant no.1, the suit was countered on the preliminary grounds that the suit raises no cause of action and is liable to be dismissed under Order 7 Rule 11 CPC. It was not maintainable within the provisions of Specific Relief Act and that the suit was a counter blast to the suit already filed by the defendant no.2 against the plaintiff and his family members and that it was bad for mis- joinder/non-joinder of necessary parties and also that the suit is barred by the period of limitation and that the suit is not properly valued for the purpose of Court fees and jurisdiction.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.13
23. On merits, the case was countered on the grounds that the defendant no.1 has never represented himself as the co-owner of the suit property nor has the general power of attorney of the other co-owners of the property in question submitting that he was not competent to execute any sale agreement being the defendant no.2 was the exclusive owner of the property in question.
24. He also denied of entering into an agreement to sell with the plaintiff on 08.09.1994. It was specifically denied that the plaintiff paid a sum of Rs. 20,000/- out of the total amount of Rs.1,22,500/- denying that the sale consideration amount was ever Rs.1,22,500/- submitting that infact the plaintiff entered into an agreement to sell with the defendant no.2, his mother, for sale of ½ of the portion of the suit property for the sale consideration amount of Rs.4.22 lacs. Thus, there was no question of entering into an agreement to sell for the same portion of the suit property particularly when he was not competent to do so.
25. It was also submitted that the agreement to sell was arrived with the defendant no.2, his mother, only on 12.10.1994 and the terms of agreement were narrated on the application dt. 12.11.1994 moved before the SEM, Seelampur, Delhi, by the defendant no. 2 and the sale consideration as per such agreement was Rs.4.22 lacs.
26. It was specifically denied that any amount of Rs.10,000/- was Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.14 paid on or before 10.09.1994 to the defendant no.1 and that any amount of Rs.92,500/- was to be paid as balance amount at the time of execution of any documents relating to the property. It was submitted that at the time of compromise between the mother of the defendant no.1 and the plaintiff and his family, during the proceedings before the SEM, certain documents were signed including certain blank papers and such blank papers might have been misused by the plaintiff to create false documents of agreement, as alleged. Thus, it was prayed that the suit of the plaintiff be dismissed being based on false documents and on false facts, concocted by the plaintiff to counter blast the suit already being pending against him that was filed by the answering defendant.
27. The defendant no.2 Smt. Suchinder Kumari Bhola in her counter pleadings has also raised the similar preliminary objections that the suit is liable to be rejected under Order 7 Rule 11 CPC for having no cause of action and that it was a counter blast to the suit filed by her and that the suit was bad for non/mis-joinder of necessary parties and also that it was not properly valued for the purpose of Court fees and jurisdiction.
28. Also on the facts, it was submitted that the defendant no.1 was not the co-owner of the suit property and thus, the question of his representation as co-owner or showing his competence to enter into an agreement to sell or to get the documents of transfer of the suit property executed or registered, does not arise and that the plaintiff was already Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.15 aware of the ownership and title rights of the suit property belonging to her, as he was the answering defendant in the eviction petition No. 35/94 filed against the father of the plaintiff wherein the father of the plaintiff gave possession of the tenanted premises back to the defendant no.2 and that the eviction petition was dismissed as infructous, on handing over the tenanted premises by the father of the plaintiff.
29. It was specifically denied that any agreement between the plaintiff and the defendant no.1 to sell ½ of the portion of the suit property could ever execute. It was further clarified that the plaintiff had entered into an agreement to sell the ½ of the portion of the suit property for a consideration of Rs.4.22 lacs and that such agreement was with the defendant no.2 that was executed on 11.10.1994 and that the plaintiff gave in writing before the SEM, Seelampur, Delhi, in this regard, but he failed to fulfill his promise of consideration amount for which the defendant no.2 had to file a suit for specific specific performance/possession, damages to the tune of Rs. 39,499.45/- and for permanent injunction that was pending at the time of filing of the present suit.
30. It was specifically denied that any agreement had entered wherein the plaintiff was required to pay any amount of Rs.1,02,500/- on or before 01.10.1994 on execution of the sale agreement. Rather the plaintiff was supposed to pay Rs.4.22 lacs to this defendant within 3 months w.e.f 11.10.1994. Thus, it was prayed that the suit of the plaintiff Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.16 may be dismissed with heavy costs.
31. The replication to the written statement was filed by the plaintiff reiterating the facts as stated in the plaint and denying the averments of the defendants in the written statements.
Issues for Suit No. 56/08/95
32. On the basis of the pleadings vide order dated 12.11.1997, the following issues were framed :
i). Whether the suit of the plaintiff for specific performance and damages is not maintainable as claimed in the written statement? OPD.
ii). Whether the plaintiff is bad for non-joinder of necessary parties as mentioned n the written statement of the defendant no.3? OPD.
iii). Whether the suit is bad for mis-joinder of parties as mentioned in written statement of the defendant nos. 4 and 5? OPD.
iv). Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction as mentioned in written statement of the defendant nos. 4 and 5?
v). Whether the plaintiff is suit is barred under section 50 of the DRC Act as mentioned in the written statement of the defendant no.1? OPD.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.17
vi).Whether the defendant no.3 gave in writing and undertaking before the Court of SEM, Seelampur, to the effect that he has promised to pay Rs.4,22,000/- towards sale consideration of 50 sq. yards of the suit amount forming part of the premises No. 251/4 A, Gali No.4, Bhola Nath Nagar, Shahdara, Delhi-32, and that aforesaid writing constituted an agreement for sale? OPP.
vii). Whether the defendant agreed to purchase from the son of the plaintiff Anil Kumar the above said suit property measuring 50 sq. yards for the consideration of Rs.1,22,500/-. If so, its effect? OPD.
viii). Whether the plaintiff is entitled to claim mesne profits, if so, at what rate, what amount and for what period? OPP.
ix). Whether the plaintiff is entitled to specific performance?
OPP.
x). Whether the plaintiff is entitled to possession by way of alternative relief as claimed? OPP.
xi). Whether the plaintiff is entitled to the interest. If so at what rate, for what period and to what amount? OPP.
xii). Relief.
Issues for Suit No. 58/08/96
33. On the basis of the pleadings vide order dated 08.04.1999, the following issues were framed :
i). Whether the suit is barred by the period of limitation?
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.18 OPD.
ii). Whether the suit is bad for mis-joinder and non-joinder of necessary parties? If so, its effect? OPD.
iii). Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? If so, what is proper valuation of the suit? OPD.
iv).Whether the agreement of sale dt. 08.09.1994 was executed between the plaintiff and defendants through defendant no.1 and signatures of defendant no.1 were obtained on the blank papers as alleged? If so, its effect? OPD.
v). Whether the plaintiff is entitled to decree for specific performance of the agreement dt. 08.09.1994 against the defendants? OPP.
vi). Whether the plaintiff is entitled to the injunction as prayed for? OPP.
vii). Relief.
Evidence for Suit No. 56/08/95
34. For proving the case, the plaintiff examined Sh. Joginder Singh, SEM Court, Seelampur, East District, Delhi, who was a summoned witness and had exhibited the photocopy of the application for compromise as Ex.PW-1/1 and the photocopy of the statement of Smt.Suchinder Kumari Bhola as Ex.PW-1/2 and the photocopy of the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.19 Kalandra as Ex.PW-1/3.
35. Sh. U.S Chauhan, Public Relations Inspector (Postal) from GPO, Delhi, was examined as PW-2, but he could not produce the summoned record as the same has been weeded out after its preservation period of 18 months and was pertaining to Delhi GPO Speed Post Article No. 6632 to 6636 dt. 08.08.1995.
36. Sh. Salig Ram was the Head Postman from Shahdara Post Office, Delhi who was examined as PW-2 (inadvertently examined as PW-2 and is treated as PW-2 A for the purpose of clarity in the judgment), but he also could not produce the summoned record as the same has been weeded out after its preservation period of 18 months and was pertaining to Speed Post Article No. 6632 to 6636 of August, 1995 and the letter to that effect was Ex.PW-2/1.
37. Sh. G.S Rawat was the LDC from the office of Sub-Registrar- IV, Seelampur, Delhi, who was examined as PW-3 (inadvertently examined as PW-3 though to be numbered as PW-4). but, as he had not brought the complete record pertaining to the property No. 251/4A, Gali No. 5 A, Bhola Nath Nagar, Shahdara, Delhi, his further examination was deferred for production of such documents.
38. Sh. R.S Yadav was the Architect and Valuer who was Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.20 examined as PW-3 (inadvertently examined as PW-3 though to be numbered as PW-5) and exhibited the valuation report as Ex.PW-3/1 prepared at the instance of the plaintiff.
39. Smt. Suchinder Kumari Bhola, the plaintiff has examined herself as PW-4 (inadvertently examined as PW-4 though to be numbered as PW-6). The photocopies of General Power of Attorney, Affidavit, agreement-deed, receipt and the Will executed in her favour were Ex.PW- 4/1 to 5. The Will executed by her mother in law in favour of her husband was Ex.PW-4/6. The document Ex.PW-4/7 was the site plan. The document Ex.PW-4/8 was receipt of the telegram made to the Commissioner of Police. The document Ex.P-4/9 was the valuation report showing the value of total property measuring 100 sq. yards in the year 1994 and the order of SEM (East) Seelampur, Delhi, was Ex.PW-4/10. She was cross-examined at length by Ld. counsel for the defendants.
40. To counter the plaintiff's case, defendant no.1 Sh. Pawan Kumar Babbar himself produced his evidence by way of an affidavit and was examined as DW-1. The notice dt. 16.01.1995, received by him sent by an advocate Sh.V.P Handa, was Ex.PW-4/D1. He was cross-examined at length by Ld. counsel for the plaintiff.
41. Sh. Rajesh Kumar Babbar, the defendant no.3 has examined himself as DW-2 who produced his examination in chief by way of an Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.21 affidavit. The document Ex.DW-2/1 was the photocopy of the receipt for an amount of Rs.20,000/- by Sh. Anil Kumar Bhola. He was also cross- examined at length by Ld. counsel for the plaintiff.
42. Sh. Shiv Nath Sarin was examined as DW-3 who produced his examination in chief by way of an affidavit. He was also cross-examined at length by Ld. counsel for the plaintiff.
43. Sh. Bhupinder Singh was examined as DW-4 who produced his examination in chief by way of an affidavit. He was also cross- examined at length by Ld. counsel for the plaintiff.
44. Sh. Narinder Kumar Babbar, the defendant no.4 has examined himself as DW-3 (inadvertently examined as DW-3 though numbered to be DW-5) who produced his examination in chief by way of an affidavit. He was also cross-examined at length by Ld. counsel for the plaintiff.
45. Sh. Rajiv Suri was examined as DW-5 (inadvertently examined as DW-3 though numbered to be DW-6) who produced his examination in chief by way of an affidavit. He was also cross-examined at length by Ld. counsel for the plaintiff.
46. The plaintiff produced the evidence of Smt. Prem Lata, Head Clerk from the office of Sub-Registrar-4, Seelampur, Delhi, in rebuttal, Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.22 who was examined as PW-5 (inadvertently examined as PW-5 though to be numbered as PW-7). The photostat true copy of the Will registered on 02.06.79 vide document No. 462, Vol No.35, Book No.3 at Page Nos. 178-179 executed by Smt. Viranwali W/o Sh. Hira Nand Bhola, was Ex.PW-5/1. The photostat true copies of the record pertaining to receipts dt. 01.06.89 executed by Sh. Sharavan Kumar Bhola S/o Hira Nand Bhola R/o H.No. 251/4 A, Bhola Nath Nagar, Shahdara, Delhi, registered with the office of Sub-Registrar, Seelampur, Delhi, vide document No. 6481 on 02.06.79, additional book No. 4, Vol. No. 552, Page No.159, Registration No. 6483 dt. 02.06.79, additional book No.4, Vol.552, Page No.160, were Ex.PW-5/2 to 4. The original records were returned after seeing.
Evidence for Suit No. 58/08/96
47. For proving the case, the plaintiff Sh. Rajesh Kumar Babbar himself produced his evidence by way of an affidavit and examined himself as PW-1. The document Ex.PW-1/1 is the receipt for an amount of Rs.20,000/- allegedly given to the defendant no.1 Sh. Anil Kumar Bhola in the presence of the witnesses. The site plan was Ex.PW-1/2. The certified copy of the orders of the SEM dt. 29.06.1995 was Ex.PW-1/3. He was cross-examined at length by Ld. counsel for all the defendants.
48. To counter the plaintiff's case, defendant no.1 Sh. Anil Kumar Bhola himself produced his evidence by way of an affidavit and was examined as DW-1, the affidavit in evidence was Ex.D-1. He was cross- Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.23 examined at length by Ld. counsel for the plaintiff.
49. Sh. Kanwal Kishore Handa, who was the real brother of the defendant no.2 Smt. Suchinder Kumari Bhola, produced his evidence by way of an affidavit and was examined as DW-2, his affidavit in evidence was Ex.D-2. He was cross-examined at length by Ld. counsel for the plaintiff.
50. Smt. Prem Lata, Head Clerk from the office of Sub-Registrar No. 4, Seelampur, Delhi, who was the summoned witness was examined on behalf of the defendants (though not numbered). She exhibited the certified copy of the Will Mark D1. The photocopy of the receipt of Rs.9000/- by Smt. Viranwali in favour of Sh. Sarvan Kumar was Mark D2, registered with the office of Sub-Registrar-4, Seelampur, Delhi, on 02.06.79 against the registration No. 66483 Book No.4, Vol No.552 at page No.160 and the photocopy of the another receipt of Rs.9000/- by Sh.Sikander Lal Bhola in favour of Sh. Sarvan Kumar Bhola was Mark D3. The other receipt of Rs.9000/- by Sh. Raj Kumar Bhola in favour of Sh. Sarvan Kumar Bhola registered on 02.06.79 was Mark D4. The certified copy of the receipt of Rs.27,000/- executed by Sh. Sarvan Kumar Bhola on 25.10.90 registered vide registration No. 31456, additional book No.4, Volume No. 2603 at page No.110.
51. H.Ct. Kamal Kishore, the summoned police witness was Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.24 examined on behalf of the defendants (though not numbered). He deposed about the record pertaining to DD No.23 dt. 29/30.08.1994 recorded at Police Post Anaj Mandi and P.S Vivek Vihar in case of Rajesh Babbar as the 1st party and Sh. Sanjay Bhola and Anil Bhola as the 2nd party. He further deposed that as per the record of DD No.23, no statement of Smt.Suchinder Kumari Bhola was recored by the SEM in those proceedings.
52. Smt. Suchinder Kumari Bhola, the defendant no.2 has herself examined as DW-5. She adopted her affidavit in affidavit and cross- examination as was recorded in the connected Suit No. 56/08/95 (earlier numbered as 692/02) titled Smt. Suchinder Kumari V/s Pawan Kumar Babbar &Ors.
Arguments for both the Suits Nos. 56/08/95 & 58/08/96
53. Ld. Counsel Ms. Suman Kapoor for the plaintiff Smt.Suchinder Kumari Bhola (for the defendants in Suit No.58/08/96) has submitted that the defendant no.1 Sh.Pawan Kumar Babbar, was a tenant in a portion in the suit property in one room at the ground floor and one room at the 1st floor, but when the plaintiff filed the eviction petition against the defendant no.1, the plaintiff entered into verbal agreement with the defendant no.1 along with other defendants who were the members of the family of the defendant no.1 and as per the agreement, the defendant no.1 agreed to hand over the vacant possession of the tenanted Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.25 premises and the defendant no.3 Sh. Rajesh Kumar Babbar (plaintiff in Suit No.58/08/96), the son of the defendant no.1, agreed to purchase ½ of the portion of the suit property shown in red colour in the site plan, for a total consideration of Rs.4.22 lacs and in view of such compromise, the eviction petition was withdrawn and the defendant no.1 handed over the vacant possession of the tenanted premises to the plaintiff and that the terms of such agreement was also recorded in writing by way of an undertaking given by the defendant no.3 on the application moved before the SEM, during the proceedings in a Kalandra recording such terms of agreement that one Rajesh Babbar S/o of the defendant no.1, who was the defendant no.3 in this suit, was agreed to take the possession of ½ of the portion of the suit property for a total consideration of Rs.4.22 lacs on which basis such Kalandara was also disposed of and the possession of the ½ of the portion of the suit property was handed over to the defendants vide such agreement but the consideration amount of Rs.4.22 lacs was never paid to the plaintiff and hence, she was to file the present suit for specific performance seeking the possession of the ½ of the portion of the suit property from the defendants in alternative along with damages/mesne-profits for the use and occupation of the suit property since the date of compromise till the date of conclusion of the suit.
54. Ld. counsel for the plaintiff has submitted that such agreement was verbal in nature but certain terms were mentioned in writing in the application moved before the SEM and that the plaintiff was entitled for Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.26 recovery of amount of sale consideration along with interest, as the plaintiff was ready to execute the sale document on receipt of such payment qua 50 % of the suit property shown in red colour in the site plan annexed with the plaint.
55. Ld. Counsel has further submitted that through the evidence on record that includes the ocular evidence of the witnesses and the documents mentioned has proved that there was a compromise between the parties and the defendants have not paid any sale consideration amount to establish its case for directions for specific performance for payment of sale consideration amount to the defendant.
56. It was also submitted that the defendant has already handed over the peaceful vacant possession of the property that was a part of compromise in good faith and only the sale documents are to be executed and in case, the defendant is not ready to pay the sale consideration amount, the suit may be decreed for the possession of the portion of the suit property that was in possession of the defendants as in such eventualities, the defendants become an un-authorised occupants of such property and the plaintiff is the owner of such property and also that the ownership right has been duly established on record by the plaintiff.
57. Ld. counsel for the plaintiff has also submitted that the defendants are in occupation of the suit property without any authority or Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.27 entitlement since the date of compromise in 1994 as the possession of such property was handed over to the defendants in lieu of compromise of the sale of such property, but the plaintiff was never paid the sale consideration amount.
58. It was also submitted that the defendants have admitted the possession in ½ portion of the suit property. They have also admitted that the suit property is in the ownership of the plaintiff and that the defendants case is not that they were paying any charges/rent to the plaintiff since the date they were put in possession of such property. Thus, the defendants have no right to continue in possession of such property, if they fail to pay the sale consideration amount.
59. Ld. counsel Sh. K.K Malhotra for the defendants (for the plaintiff in Suit No. 58/08/96) has submitted that the plaintiff and the defendant no.3 Sh. Rajesh Babbar had entered into an agreement for sale and such agreement was entered into purchase of ½ of the portion of the suit property, correctly shown in red colour in the site plan measuring 50 sq. yards, but such agreement was between Sh.Anil Kumar Bhola, the son of the plaintiff and Sh. Rajesh Babbar, the defendant no.3 and the sale consideration amount was not Rs.4.22 lacs but it was only Rs.1,22,500/- and it was not the defendant no.3 Sh. Rajesh Babbar, but the plaintiff who was in default to execute her part of obligation to execute the sale documents in favour of the defendant no.3 and the defendant no.3 has Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.28 already paid an amount of Rs.30,000/- that was paid two times i.e 1st time an amount of Rs.20,000/- was paid at the time of execution of agreement as an earnest money and 2nd time and amount of Rs.10,000/- was paid to Sh. Anil Bhola, the son of the plaintiff and the balance amount was to be paid before the Sub-Registrar at the time of execution of the sale documents by the plaintiff and the plaintiff had never executed the sale documents though the defendant no.3 was ready to pay such amount and also prepared a bank draft for such amount in favour of the plaintiff. Thus, it was submitted on behalf of the defendants that the plaintiff's suit be dismissed and the 2nd Suit No. 58/08/96 filed by the defendant no.3 Sh. Rajesh Kumar Babbar seeking specific performance of the agreement entered into the parties, directing the plaintiff of the present suit and defendant in the Suit No. 58/08/96 filed by the defendant no.3 Sh. Rajesh Babbar, so that the plaintiff of this suit should receive the balance amount of Rs.92,500/- and should be directed to execute the sale documents in respect of ½ of the portion of the suit property.
60. It was submitted that the original agreement is placed in Suit No. 58/08/96 that was ExPW-1/1 and the photocopy of the same is Ex.DW-1/ in the present suit and the witnesses produced on behalf of the defendants have proved the terms of such agreement and contents of the plaintiff have been belied through the evidence of the defendants and cross-examination of the plaintiff's evidence placed on record.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.29
61. It was also submitted on behalf of the defendants that the defendant no.3 is still ready to hand over the balance amount of Rs.92,500/- in the manner the plaintiff accepts and the plaintiff may be directed to execute the sale documents before the Sub-Registrar admitting that the portion of the suit property in dispute has already been taken by the defendant no.3 and his family.
62. Ld. counsel for the defendants have vehemently countered the arguments of the Ld. counsel for the plaintiff submitting that there was no agreement between the parties for a sale consideration of Rs.4.22 lacs and the document Ex.PW-1/1 filed by the plaintiff was not the agreement in any form, as it was an application moved before the SEM and the contents written in addition to such application bear number of cuttings for the amount of sale consideration without owning cuttings by any of the parties and such document cannot be treated as an agreement between the parties in any manner.
63. Thus, it was prayed that such document can be ignored and the agreement between Sh. Anil Bhola and Sh. Rajesh Babbar may be looked into for deciding the Suit No. 56/08/95 filed by Smt. Suchinder Kumari Bhola and another Suit No. 55/08/96 filed by Sh. Rajesh Kumar Babbar, as both the suits have the same prayer for execution of the agreement between the parties for ½ of the portion of the suit property.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.30 Issue-wise findings for Suit No. 56/08/95
64. Now, my issue wise findings and observations are as under :
Issue No. 1Whether the suit of the plaintiff for specific performance and damages is not maintainable as claimed in the written statement? OPD.
The onus of proving this issue was on the defendant but it is not clarified who of the five defendants were to prove this issue. Thus, it is taken up qua such defendants who have raised this plea in their written statement(s). As per record, the defendant nos.1 and 3 have raised the plea that the suit of the plaintiff was not maintainable. The defendant no.1 has not produced any preposition or submissions as to how and for what reasons, the suit is not maintainable. Thus, it is assumed that he has not discharged his burden to establish such issue in any manner. Moreover, this defendant was a proforma party qua the disputed ½ portion of the suit property as he was one of the members of the family of the defendant no.3 who was allegedly a party to the compromise with the plaintiff under reference though he was a tenant inducted in one of the portion of the suit property that was handed over after such compromise during the eviction petition filed by the plaintiff against him and such eviction petition was disposed of on the basis of compromise under reference.
65. The defendant no.3 is basically contesting this suit and has Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.31 raised this plea in his pleadings that the plaintiff's suit for specific performance and damages to the tune of Rs. 39,499.45/- and for permanent injunction is mis-conceived, malafide and thus, is not maintainable in law.
66. In support of this plea, the contentions of Ld. counsel Sh. K.K Malhotra for the defendant no.3 was that the suit is based on the document Ex.PW-1/1 that was an application for compromise filed before the Court of SEM, East Delhi, on which a Clause No.4 with ink has been added that the 1st party promised to sell 50 sq. yards of land for an amount of Rs.4.22 lacs from the 2nd party and handed over the possession. It was submitted that at the place of 1st party, one Sh. Rajesh Babbar in this case had signed and thus, the defendant no.3 Sh. Rajesh Babbar cannot be the purchaser of the portion of the suit property in question and such Clause is mis- conceived and has no meaning to convey about any type of compromise between the parties.
67. He has further submitted that Clause (4) also contains a cutting at the place of an amount that clearly makes it a cutting of an amount of Rs.1,22,500/- to make it an amount of Rs.4.22 lacs, as the sale consideration. Thus, it was conveyed that Ex.P-1/1 cannot be treated as compromise between the parties on the face of such confusion about the parties to the compromise and also about the amount of sale consideration.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.32
68. It was further reiterated that in fact the parties entered into a compromise for sale of ½ of the portion of the suit property for a sale consideration of Rs.1,22,500/- that was agreed between Sh. Anil Kumar Bhola and Sh. Rajesh Babbar and Sh. Anil Kumar Bhola represented the plaintiff, as her son to execution of such agreement on behalf of the plaintiff for a sale consideration of Rs.1,22,500/- and not for Rs.4.22 lacs.
69. I have gone through the document referred as Ex.PW-1/1. This is an application for compromise dt.. 12.10.1994 moved before the Court of SEM, Seelampur, Delhi, in case No. 59/94 placed at S.No.2 that records that it was a Kalandra registered with P.S Vivek Vihar u/s 107/150 Cr.P.C in which there were three accused persons and at S.No.1 in the name of Rajesh, S.No.2 Smt. Suchinder Kumari Bhola and Sh. Sanjay Bhola at S.No.3, in the application moved through counsel, the signatures are mentioned as Party No.1 of Rajesh Babbar and at Party No.2, there were 3 persons mentioned as 1 to 3 and at No.1, the signatures of Smt. S.K Bhola are mentioned whereas at No.2 and 3, the signatures of Sh. A.K Bhola and Sh. Sanjay Bhola, the sons of the plaintiff are mentioned.
70. It is observed that this document mentions 'accepted' with the date of 12.10.1994. It is observed that here the party no.1 and 2 are referred as the parties to the compromise and that compromise appears for Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.33 the purpose of disposal of the Kalandra as this Kalandra was against three accused persons and Rajesh Babbar was shown as accused against S.No.1. There is nothing on record to establish that Clause No. (4) was not added by the parties, when such application was moved before the SEM and the date mentioned on such application is 12.10.1994. Thus, it cannot be said that the 1st party as recorded in Clause (4) was Sh. Rajesh Babbar who was not the seller, rather was the purchaser.
71. The evidence on record produced by both the parties when read in totality not only of the present Suit No. 56/08/95 but also of the connected Suit No. 58/08/96 that was filed by the defendant no.3 Sh.Rajesh Babbar against Sh. Anil Bhola, that clearly mentions that qua the sale transaction for the ½ of the portion of the suit property, it was Sh.Rajesh Babbar who was the purchaser on one side and on the other side, there was a plaintiff Smt. Suchinder Kumari Bhola who was the owner of the suit property.
72. As per Sh. Rajesh Babbar, as plaintiff, in the suit filed by him bearing No. 58/08/96, the compromise was entered between him and son of the plaintiff who acted on behalf of the plaintiff as representative of Smt. Suchinder Kumari Bhola and the alleged co-owner of the property in question.
73. Also, in the present suit, it was the plaintiff Smt. Suchinder Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.34 Kumari Bhola, who allegedly entered into an agreement with Sh. Rajesh Babbar, the defendant no.3, for the purchase of the suit property in question. Thus, the confusion raised in the contentions of Ld. counsel for the defendant no.3 regarding the parties as to who was the seller and who was the purchaser, is not tenable, though the confusion occur in this document of Clause (4) of the application Ex.PW-1/1 may be because of the reason that Sh. Rajesh Babbar was appearing as first and Kalandra was against the three persons and Rajesh Babbar was the accused no.1 in such Kalandra.
74. Hence, it is worth mentioned that the plaintiff's case is not that this application was the document of compromise/agreement arrived between the plaintiff and the defendant no.3, but, the plaintiff's case was that there was a verbal agreement between the parties during the pendency of the eviction petition filed against the defendant no.1 and this application only recorded the undertaking of the defendant no.3 to record the verbal agreement agreed between the parties to reproduce the same version in writing before the SEM for disposal of the Kalandra filed against the plaintiff as well as the defendant no.3.
75. It is also worth mentioned that the eviction petition was disposed of regarding compromise between the parties and in lieu of compromise, the tenanted premises was handed over by the defendant no.1, the father of the purchaser Sh. Rajesh Babbar and also it is an Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.35 admitted fact that after such compromise, when the tenanted premises was handed over, the defendant no.1 alongwith other family members including the defendant no.3 shifted to the portion shown in red in the site plan that was a portion in dispute in this suit.
Thus, from the records placed with the file including the ocular evidence as well as the documentary evidence of both the parties, neither the pleadings of the plaintiff nor any evidence on record creates any mis- conception to establish that the suit was mis-conceived, malafide and was not in law.
76. Apart from the above noted pleadings and evidence, nothing has been raised to show any other ground for non-maintainability of the suit in law to establish that the suit for specific performance/possession, damages to the tune of Rs. 39,499.45/- and for permanent injunction, could not be filed by the plaintiff in the Court.
77. Thus, this issue is not established by any of the defendants who raised such plea and it does not go in favour of the defendants and goes in favour of the plaintiff.
78. Issue No.2 Whether the plaintiff is bad for non-joinder of necessary parties as mentioned n the written statement of the defendant no.3? OPD.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.36 The onus of proving this issue is placed on the defendant no.3 who has raised the plea that the suit was bad for non-joinder of the necessary parties as Sh. Anil Kumar Bhola and Sh. Sanjay kumar Bhola, the sons of the plaintiff Smt. Suchinder Kumari Bhola were the necessary and proper parties to the present suit and that the suit was liable to be dismissed as barred under Order 1 Rule 9 of CPC.
79. To these pleadings of the defendant no.3, Ld. counsel for the defendant no.3 has submitted that Anil and Sanjay Kumar Bhola, both sons of the plaintiff and Late Sh. Sarwan Kumar Bhola, were the co- owners of the suit property and thus, were the necessary parties to the suit and non-joinder of both of them was not proper and the suit is bad for non-joinder of such necessary parties.
80. The contentions of Ld. counsel for the plaintiff to counter such plea was that the plaintiff Smt. Suchinder Kumari Bhola was the exclusive owner of the suit property being originally the said property was owned by one Smt. Viranwali, the mother of the plaintiff who bequeathed the property in favour of the husband of the plaintiff who further bequeathed the property in favour of the plaintiff. Thus, the plaintiff being the sole owner of the property was the only necessary party for the subject matter of the suit that relates to a contract of sale of ½ portion of the suit property.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.37
81. I have gone through the evidence placed by both the parties to resolve the controversy as to whether the sons of the plaintiff were also the co-owners of the suit property or not, to be made party to the suit, based on the sale of ½ portion of the suit property.
82. The plaintiff has produced one Smt. Premlata, the Head Clerk from the office of Sub-Registrar-4, Seelampur, Delhi, in rebuttal, who was examined as PW-5 and had brought the summoned record and on the basis of such record, this witness has deposed that one Will Ex.PW-5/1 was registered on 02.06.1979 in the book of records vide document No. 462, Vol No.35, Book No.3 at Page Nos. 178-179 executed by Smt.Viranwali W/o Sh. Hira Nand Bhola in favour of Sh. Sarwan Kumar Bhola S/o Sh. Hira Nand Bhola and as per the records Ex.PW-5/2,3 and 4, executed by Sh. Sarwan Kumar Bhola, the property was bequeathed in favour of the plaintiff Smt. Suchinder Kumari Bhola. The exhibition of these documents were objected by Ld. counsel for the defendants on the ground that leading evidence in affirmative was given by one Sh. G.S Rawat, LDC from the office of Sub-Registrar IV, Seelampur, Delhi, and should not be permitted to examine in rebuttal and such objections were decided against the defendants by the Court finding no merits for such objections and such objections were overruled.
83. Thus, these documents can be read in evidence and has the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.38 evidentiary value to read the contents. According to these documents, the suit property was bequeathed in favour of the plaintiff by her husband and thus, such property cannot be treated as in-testamentory as testaments were created in favour of one person named as Smt. Suchinder Kumari Bhola, the plaintiff. Thus, the contentions of the Ld. counsel for the defendant no.3 that sons of the plaintiff namely Anil Bhola and Sanjay Bhola were also the co-owners of the suit property after the death of their father along with their mother, the plaintiff in this case and that these two persons were the necessary parties for deciding the controversy in issue in the suit, are not tenable on the facts proved on record.
84. The defendant no.3 Sh. Rajesh Babbar when examined as DW- 2 has admitted certain facts regarding the earlier litigation pending between the parties qua such suit property that such suits were filed exclusively by the plaintiff and the defendant no.1 when examined as DW-1 has clearly admitted during his cross-examination that the agreement to sell was between the plaintiff and his son Rajesh Babbar and after such agreement, the defendants have shifted to the portion of the suit property that was the subject matter of such agreement, also admitted that since their shifting to such portion, they had not paid any amount to the plaintiff for the use and occupation of the portion now in their possession.
85. There was nothing on record to show that the defendant no.3 could produce any document or ocular evidence to establish that the two Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.39 sons of the plaintiff namely Anil Bhola and Sanjay Bhola, were the co- owners of the suit property in question.
86. Thus, on the basis of the record placed before the Court, it is observed that the defendant no.3 could not establish the issue that the suit was bad for non-joinder of the necessary parties and hence, this issue is decided against the defendant no.3 and goes to favour the plaintiff.
87. Issue No.3 Whether the suit is bad for mis-joinder of parties as mentioned in written statement of the defendant nos. 4 & 5? OPD.
Being the issue based on the plea of the defendant nos.4 and 5, thus, the issue was to be established by the defendant nos.4 and 5. The defendant nos.4 and 5 in their counter pleadings have raised the contention that they were not the necessary parties to be impleaded in the present suit and thus, the suit is liable to be dismissed on that ground.
88. Ld. counsel for the defendants has contented that these two defendants are the family members of the defendant no.1 and thus, were not related with the subject matter of the suit property either to the alleged contract of sale or for the relief prayed for specific performance, and thus these two could not be treated as necessary parties.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.40
89. It is observed that the defendant nos.4 and 5 namely Sh.Narinder Kumar Babbar and Ms. Vimmi Babbar are the son and daughter of Sh. Pawan Kumar Babbar respectively. The plaintiff in the present suit has raised the issue of compromise between the plaintiff and the defendant no.1 and his family members who after compromise have shifted from the tenanted premises to the ½ portion of the suit property that was the subject matter of the sale agreement between the plaintiff and the defendant no.3 and the plaintiff has sought a specific performance of contract of sale of such property claiming that the sale consideration amount was not paid despite the possession was handed over the defendants.
90. To that extent, these two defendants being the members of the defendant no.1, the earlier tenant in the tenanted premises in the suit property, are treated as formal parties to the suit, but at the same time, the plaintiff has also sought to pass a decree of permanent injunction in favour of the plaintiff and against all the defendants including the defendant nos.4 and 5, restraining all of them from parting, alienating, transferring of the portion measuring 50 sq. yards of the suit property in possession of the defendants after compromise
91. Here, it is mentioned that the defendant no.3, also one of the sons of the defendant no.1 who was the tenant of the plaintiff in the suit Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.41 property and as the allegations of the plaintiff are that on filing of the eviction petition against the defendant no.1, the tenant and all the members of his family entered into a quarrel that ultimately resulted in filing of number of litigations between the parties and also in registration of Kalandra with P.S and to end all these problems, a compromise was entered into with the defendant no.1 and the members of his family had two-fold activities, one was handing over the tenanted premises to the plaintiff and other was of sale of ½ of the portion of the suit property shown in red colour in the site plan for a consideration of Rs.4.22 lacs, the defendant no.3 Sh. Rajesh Babbar who was one of the sons of the defendant no.1. thus, the plaintiff has prayed for the damages/mesne- profits for the use and occupation of the portion of the suit property possessed by all the defendants and also a restrainment orders from the defendant no.1 and all the sons and wife, seeking restrainment against them for not disposing of the portion in their possession or to create 3rd party interest. Thus, to that extent, these two defendants i.e the defendant Nos. 4and 5 also become a necessary party though they were not directly or distinctively related to the contract of sale vide which the portion of the suit property was handed over to the defendant no.3 and his family.
92. So far as the proposition of law is concerned, the Apex Court in a case cited as 1992 AIR SC W 846, expressed that, 'a necessary party is one without whom no orders can be made effective. It is necessary that the person must be directly or legally Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.42 interested in the action in the answer i.e he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action'.
Thus, as per the above expressions, a necessary party is not only one whose object is to prosecute his own cause of action but also one that is legally interested in action in the answer and that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.
93. The defendant nos. 4 and 5 and also the defendant no.2 being in possession of the suit property that was ½ of the portion of the suit property and was the subject matter of the sale contract and the result of the litigation is definitely to affect their rights of possession and also the relief of permanent injunction as sought for by the plaintiff is specifically mentioning all the defendants. Thus, it cannot be said that the defendants other than the defendant nos. 1 and 3, were not the necessary parties to the suit.
94. Further observations made in AIR 2006 SC 131 clearly explains the distinction between the necessary party and proper party. According to such observations, 'a necessary party is one without whom no order can be made effective and a proper party is one in whose absence, an effective Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.43 order can be made but whose presence is necessary for a complete and final decision, on the question involved in the proceeding'.
95. Thus, on the basis of above propositions of law when applied to the facts of the case, it is observed that it cannot be said that the defendant nos.4 and 5 were not the necessary and proper parties to the suit, to hold that the suit was bad for mis-joinder of the parties.
96. Moreover, it is observed that the defendant nos.4 and 5 have not placed any evidence on record either ocular or documentary to establish this issue that they were not the necessary party. Therefore, this issue is not established on record by the defendant nos.4 and 5 or any other defendants to answer such issue. Therefore, this issue is also not given in favour of the defendants and goes to favour the plaintiff.
97. Issue No.4 Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction as mentioned in written statement of the defendant nos. 4 and 5?
The issue of valuation of the suit property for the purpose of Court fees and jurisdiction has been raised in the pleadings of all the defendants though it is not being elaborated by any except the defendant nos.4 and 5 in their written statement. Thus, basically the onus was on the defendant nos.4 and 5 to establish such issue. Moreover, the issue is also Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.44 legal in nature and the plaintiff has also taken care of such issue while producing the evidence on the point of valuation.
98. The contention of the defendant nos.4 and 5 regarding this issue was that the plaintiff's suit was for specific performance of agreement to sell the ½ portion of the suit property shown in red colour in the site plan for the sale consideration of Rs.4.22 lacs and the plaintiff has also claimed the possession of the property, but no separate Court fees on the market value of the property has been filed before the Court. It was also raised that the value of the suit should be specifically assessed for specific performance, electricity and water charges and for the purpose of Court fees and jurisdiction that exceeds the pecuniary jurisdiction of the Court.
99. Ld. counsel has not submitted any specific contention in this regard and the plaintiff has produced PW-3 Sh. R.S Yadav, the Architect and the Valuer, who has exhibited his valuation report Ex.PW-3/1. This witness has produced his report, for valuation of the suit property and also for the coast of construction in the year 1994. He has denied the suggestion at the time of cross-examination that the market rate of the land in the year 1994 in such area was Rs.1000/- sq. yards or the cost of construction was @ Rs.35/- per sq. ft. He has valued the suit property for the land as well as for the cost of construction in his report in detail and has not reverted back during his cross-examination on any of the aspects.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.45 This witness has answered the query of cost calculated on valuation of the suit property deposing that the cost of the suit property in his report is based on the information given by the property dealer though he has admitted that the name of such property dealer was Sh. Handa. The witness was not questioned on the veracity of such property dealer or on the rates mentioned in the report by this witness either for the cost of land or for the construction.
100. The defendant nos.4 and 5 have not produced or exhibited any document of valuation of the suit property at their end to prove that the suit property was not properly valued. Nor they have produced any ocular or documentary evidence on record to show the total charges of electricity and water consumption that require for a particular valuation of the suit property to exceed the jurisdictional value.
101. Here, it is worth mentioned that this suit was filed before the Ld. ADJ, Delhi, for specific performance on the contention that the possession of the suit property has already been handed over and it was only the sale consideration that was sought to be paid or in alternative, the possession be handed over, as in such eventuality, for non-execution of the contract of sale, the defendant ceased to have any right over the suit property to possess the same. Thus, basically this suit was not for the possession as such, but for execution of the part obligation of payment of the sale consideration by the defendants to the plaintiff as the possession Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.46 of the suit property had already been handed over on the agreement to sell, there and then and such possession in lieu of the compromise is an admitted case in the suit, as this fact has not been disputed by the defendants and was also recorded in so many words in different proceedings pending before different Courts of law.
102. Further, it is observed that the defendant no. 4 Sh. Narinder Kumar Babbar was examined as DW-3 and the defendant no.5 Ms. Vimmi Babbar was not examined either as a witness or produced any evidence on record and the testimony of PW-3 nowhere mentions the question of valuation of the suit property as per the plea taken by him in the pleadings. Thus, the defendant nos.4 and 5 have also failed to establish this issue in their favour, rather the plaintiff has produced its evidence to show that the Court fees was paid as per the valuation of the suit property based on the valuation report Ex.PW-3/1.
Thus, this issue is not decided in favour of the defendant nos.4 and 5 and ultimately goes to favour the plaintiff.
103. Issue No.5 Whether the plaintiff's suit is barred under section 50 of the DRC Act as mentioned in the written statement of the defendant no.1? OPD.
To prove this issue, the burden was placed on the defendant Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.47 no.1 and to discharge the onus, the defendant no.1 has taken a plea that the suit is barred under section 50 of the DRC Act, as he was the tenant in respect of the premises in question @ Rs.200/-p.m excluding all other charges, and the provisions under section 50 of the DRC Act bars any civil suit in respect of the premises where the provisions of DRC Act are applicable and thus, a suit for possession with respect to the premises in question, is barred under section 50 of the DRC Act.
104. Before appreciating the plea and contentions taken by the defendant no.1, it is worth to read the provisions of section 50 of the DRC Act, that reads :
Jurisdiction of civil Court barred in respect of certain matters Save as otherwise expressly provided in this Act, no civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil Court or other authority...
105. Explicitly to go as per the literal meaning of the provisions, the Civil Court's jurisdiction is barred to entertain any suit or proceedings in so far as it relates to the fixation of standard rent in relation to the eviction of any tenant therefrom for which the Controller is empowered to decide such issue or to pass an order in respect of any action to be taken by the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.48 Controller under this Act.
106. Now, the first question arises as to whether the suit property in question was such to which the provisions of DRC Act applies or not. The defendant no.1 claims that he was a tenant in respect of the suit property in question. Admittedly, as per record, the defendant no.1 was a tenant in respect of the green portion shown in the site plan of the suit property that consists of one room at the ground floor and another room at the first floor, but from the records it is being established and even admitted by all the defendants that subject matter of the suit is not of green portion of the suit property, but the red portion shown in the site plan for which the relief of specific performance of the sale contract of such portion or in alternative, a decree for possession or injunction is being asked in the suit by the plaintiff, thus it is clearly established on record that the subject matter of the suit property is not the tenanted premises in any manner in which the defendant no.1 was the tenant, as it is established on record and admitted by the defendant no.1 that he has already handed over the peaceful vacant possession of the tenanted premises to the plaintiff before filing of the suit. Thus, the suit property in question in this suit cannot be treated as the tenanted premises belonging to the defendant no.1 in any manner and therefore, the question of application of provisions of DRC Act does not arise. Thus, this issue is decided against the defendant no.1 and goes to favour the plaintiff.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.49 107. Issue No. 6 & 7
vi).Whether the defendant no.3 gave in writing and undertaking before the Court of SEM, Seelampur, to the effect that he has promised to pay Rs.4,22,000/- towards sale consideration of 50 sq. yards of the suit amount forming part of the premises No. 251/4 A, Gali No.4, Bhola Nath Nagar, Shahdara, Delhi-32, and that aforesaid writing constituted an agreement for sale? OPP.
vii). Whether the defendant agreed to purchase from the son of the plaintiff Anil Kumar the above said suit property measuring 50 sq.yards for the consideration of Rs.1,22,500/-. If so, its effect? OPD.
The issue Nos. 6 & 7 are taken together as both are based on the premises regarding the subject matter of the compromise arrived between the parties for a sale consideration.
108. The onus of proving the issue No.6 was on the plaintiff as basically the relief of the suit is based on this issue. This issue refers the document Ex.PW-1/1 i.e the application for compromise moved before the Court of SEM. This application is signed by Sh. Rajesh Babbar, the defendant no.3 as one of the parties and Smt. Suchnder Kumari Bhola, Sh. Anil & Sh. Sanjay Bhola as the other side of the party. This application mentions that the above case i.e the Kalandra No. 59/94 filed against the accused persons Sh. Rajesh Babbar, Sanjay Bhola and Anil Bhola, u/s 107/150 Cr.P.C for which the next date of hearing was 12.10.94. The Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.50 subject matter of this application is the application for compromise and the Clause (1) of this application mentions about pendency of such Kalandra in the Court that was passed on the date of hearing and Clause (2) mentions that there was no dispute left between the parties and they have compromised mutually out of their free will and without any undue influence or coercion whatsoever from any side. Clause (3) mentions that there is no danger of breach of peace in the local limits of the area as both the parties undertook not to quarrel in future. Clause No.(4) mentions that the 1st party promised to sell 50 sq. yards of the land for Rs.4.22 lacs from the 2nd party who was handing over the possession of the suit property. Here, it is mentioned that this Clause (4) is written in ink. The other Clauses Nos. (1) to (3) and the prayer Clause are typed one and all the parties have signed with ink and from the bare eyes, it appears that the Clause (4) is written with the same ink with which the other particulars are filled in the application and signed by the parties. However, at the place of party No.1 Sh. Rajesh Babbar has signed with black ink who writes the date of 12.10.1994.
109. As per the plaintiff, there was a verbal agreement between the plaintiff and the defendant no.1 during the proceedings pending for eviction for the tenanted premises that was in possession of the defendant no.1 Sh. Pawan Kumar Babbar, that the defendant no.1 shall hand over the peaceful vacant possession of the tenanted premises and the defendant no.3 Sh. Rajesh Babbar i.e the son of the defendant no.1, shall purchase ½ Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.51 of the portion of the suit property shown in red colour in the site plan for a sale consideration of Rs.4.22 lacs and thereafter the tenanted premises was handed over to the plaintiff and the eviction petition was disposed of and a Kalandra pending against the three accused persons that list includes Rajesh Babbar, the defendant no.3, the plaintiff Smt. Suchinder Kumari Bhola and Sh. Sanjay Bhola, the son of the plaintiff as accused, in such Kalandra and on filing of such application, mentioning the terms agreed upon between the parties verbally in the oral agreement, the Kalandra was disposed of by the SEM, East Delhi, disposing of the Kalandra recording the statement of the plaintiff Smt. Suchinder Kumari Bhola, that was Ex.PW-1/2 detailing the terms of compromise, same as recorded in the application for compromise that Rajesh Babbar, the defendant no.3 had agreed to pay Rs.4.22 lacs as sale consideration for purchase of ½ of the portion of the suit property shown in red colour in the site plan and in lieu of such compromise the possession was handed over to the defendant no.3 and his family, for such property and they shifted thereupon and due to such compromise, not only the Kalandra proceedings were closed vide orders dt. 12.10.1994 but also, the eviction petition was also disposed of due to such verbal compromise.
110. Thus, the plaintiff's plea was that the agreement was not the application for compromise but was a verbal communication between the plaintiff on one side and the defendant nos.1 and 3 on the other side, also clarifying that the defendant no.1 was a tenant under the landlord-ship of Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.52 the plaintiff and the defendant no.3 i.e the son of the defendant no.1, who agreed to purchase another portion of the suit property comprising of ½ portion of the suit property shown in red colour in the site plan, when the tenanted premises shown in green colour in the site plan was handed over back to the plaintiff and the document Ex.PW-1/1 was the application for compromise that records an undertaking of the defendant no.3, the son of the defendant no.1, before the Court of SEM that reproduces the contents of compromise in writing.
111. Now, the orders of the SEM Ex.PW-4/9 dt. 12.10.1994 needs to be reproduced that reads :
'Both the parties are present. It is a cross case. I heard them and also perused the Kalandra in detail. It has been found there is no apprehension of breach of peace. Both the parties furnished a written compromise through their Ld. counsel which has been accepted after fully satisfaction. So this case is fit to be compromised discharged. Hence all the respondents of both the parties are hereby compromise discharged. Proceedings are closed. Case file be consigned to record'.
112. The plaintiff Smt. Suchinder Kumari Bhola to prove this compromise has examined herself as PW-4, sworn in affidavit, reiterating the same facts and was cross-examined at length, but it is observed that during the lengthy cross-examination, this witness could not revert back on these aspects.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.53
113. The defendants have countered this compromise submitting that Ex.PW-1/1 cannot be treated as the agreement for sale, and the consideration amount mentioned in Clause (4) has a cutting on the amount as the amount was recorded as Rs.1,22,500/- that was changed to Rs.4.22 lacs. It was submitted that Clause (4) of the application is a confusing statement as it records that the 1st party promised to sell a land measuring 50 sq. yards for a sale consideration of Rs.4.22 lacs whereas the 2nd party was agreed to hand over the possession and document mentions the party No.1 as Sh. Rajesh Babbar and party No.2 as the plaintiff and her two sons and that if the party No.1 is Sh. Rajesh Babbar, how he will agree to sell the land for Rs.4.22 lacs when he was the purchaser of the land as per the plaintiff's version. It was also submitted that the 2nd party who were the plaintiff and her sons, could not be the persons who agreed to be given possession by the 1st party. Thus, it was submitted that this application cannot be treated as contract of sale between the parties for the want of cutting and confusions regarding the name of the parties.
114. I have gone through the records including the documents exhibited in the Court by both the parties and the evidence on record, particularly, the evidence of PW-4 Smt. Suchinder Kumari Bhola, PW-1 Sh. Joginder Singh, the record Clerk from the SEM Court with the records of SEM Court on one side and of DW-1 and DW-2 on the other side (defendant nos.1 and 3). I have also gone through the statements recorded before the SEM Court and the orders of such Court on the proceedings of Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.54 Kalandara u/s 107/150 Cr.P.C. It is observed that such contention on the point of confusion of the parties though apparently appears on such document Ex.PW-1/1, could have been substantiated if the other admissions/documents produced by both the parties could have cleared the confusion and cutting over Clause (4) on the document Ex.PW-1/1.
115. It is observed that the parties were facing number of litigations qua the suit property in question from the eviction petition against the defendant no.1 to the injunction suit and the present suit filed before this Court and a cross/counter case filed by the defendant, placing number of documents and evidence on record along with the documents relating to the criminal proceedings held before the SEM Court. All the records placed with the file clearly makes the following facts established :
i). The parties have never disputed that there was a contract of sale of ½ of the portion of the suit property shown in red colour in the site plan.
ii). That as per the contract of sale, the defendant no.3 agreed to take possession of ½ of the portion of the suit property shown in red colour in the site plan.
iii). That the plaintiff Smt. Suchinder Kumari Bhola had given possession of such ½ portion of the suit property and the defendant no.3 along with the defendant no.1 and other family members have shifted from green tenanted premises to the red portion shown in the site plan after handing over the green tenanted premises to the plaintiff, before the Court where the eviction petition was filed and such petition was disposed of recording that the peaceful possession of the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.55 tenanted premises has been handed over by the defendant no.1 to the plaintiff.
iv). That the compromise was acted upon by the parties as in lieu of such compromise, the tenanted portion of the suit property was handed over by the defendant no.1 to the plaintiff and the eviction petition was disposed of and that the possession of the ½ of the portion of the suit property shown in red colour in the site plan was taken over by the defendant no.1 and 3, and their family shifted to the portion shown in red colour in the site plan and still staying in the same portion of the property as they were in possession of such portion since the date of compromise during the pendency of these two suits No. 56/08/95 and 58/08/96, till date.
v). The parties are not in dispute that the Kalandra No.59/94 was disposed of regarding the compromise between the parties. Also that the application for compromise was moved and signatures of the parties were admitted. Rather the document Ex.PW-1/1 was also accepted. The parties who were to take the possession of the property and who were to pay the sale consideration cannot be confused, in the above noted circumstances. Thus, the rough drafting of Clause (4) cannot carry any meaning to say that Clause (4) was a confused statement regarding the compromise between the parties.
What appears to the Court is, the confusion regarding the sale consideration amount, whether it was Rs.4.22 lacs or it was Rs.1,22,500/-.
116. Now, come to the another document i.e the alleged sale agreement executed between Sh. Anil Kumar Bhola S/o the plaintiff and Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.56 Sh. Rajesh Babbar , the defendant no.3 herein. Now, I refer to the issue no.7 at the cost of repetition for the purpose of clarity to tackle this issue along with the issue no.6.
Issue No.7 Whether the defendant agreed to purchase from the son of the plaintiff Anil Kumar the above said suit property measuring 50 sq.yards for the consideration of Rs.1,22,500/-. If so, its effect? OPD.
The document Ex.DW-2/1 is the alleged agreement (the original copy of such agreement has been placed in the Suit No. 58/08/96 and has been exhibiteed as Ex.PW-1/1 in that suit that is in the form of cross-case filed by the defendant no.3 Sh. Rajesh Babbar against Sh.Anil Kumar Bhola S/o of the plaintiff in this case). So far as this document is concerned, this document is an unstamped document recorded on a piece of paper, signed by both the parties Sh. Anil Kumar Bhola and Sh. Rajesh Babbar and other four witnesses Sh. K.K Handa, Sh. Bhupinder Singh, Sh. Shiv Nath Sarin and h. Baldev Raj. As per this document, Sh. Anil Kumar Bhola received an advance amount of Rs.20,000/- against the settlement for Rs.1,22,500/- for the land measuring 50 sq. yards i.e ½ of the portion of the suit property shown in red colour in the site plan and the balance payment of Rs.1,02,500/- was be given on 10.09.94 and the said advance money will be forfeited in case of default and the party no.1 Sh.Anil Kumar Bhola will pay double amount of the said advance Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.57 received i.e Rs.40,000/- in case of default, to the party No. 2 Sh. Rajesh Babbar.
117. The defendant no.3 is basing his defence on this issue and the burden of proving such issue was on the defendant to state that this document was a compromise for sale of ½ of the portion of the suit property shown in red colour in the site plan for a consideration of Rs.1,22,500/- out of which, an advance money of Rs.20,000/- was received by Sh. Anil Kumar Bhola as the 1st party to the contract and the balance amount of Rs.1,02,500/- was to be paid by the 2nd party Sh.Rajesh Babbar by 10.09.1994 and in case of default of the party No.1, the advance money would be forfeited and Sh. Anil Kumar shall pay Rs.40,000/- in case of default to the party No.2 Sh. Rajesh Babbar.
118. The evidence of Sh. Rajesh Babbar as DW-2 is also referring this document in so many words to prove this issue. On appreciation of the evidence of Sh. Rajesh Babbar, there is a clear averment and deposition that the document Ex.DW-2/1 (original of which is placed in the connected suit No. 58/08/96 exhibited as Ex.PW-1/1) was the receipt of an amount of Rs.20,000/- and he has clearly deposed that Sh. Anil Kumar Bhola signed the receipt on 08.09.94. Thus, invariably even the defendant no.3 has named this document Ex.DW-2/1 as 'receipt' in his evidence in affidavit and not the document of contract of sale.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.58
119. So far as the application Ex.PW-1/1 is concerned, that was moved for compromise before the SEM Court or this document Ex.DW- 2/1 is concerned, both the documents cannot be stated to be the documents of contract to sale as the 1st document Ex.PW-1/1 is the application moved before the Court of law that states few terms of compromise agreed between the parties and the document Ex.DW-2/1 states 'receipt' of Rs.20,000/- by one Sh. Anil Kumar Bhola, for the sale consideration of Rs.1,22,500/- and the term that the balance amount shall be paid on 10.09.1994.
120. Thus, it is clear that both the documents are not the documents of contract of sale as the contract between the two competent parties entered into a compromise for the subject matter for a consideration to execute such contract. In the 1st document i.e Ex.PW-1/1 signed by Sh.Rajesh Babbar as the 1st party and signed by 3 persons as the 2nd party, before the Court of SEM, the signatures on such document were of the persons who were not the parties to the contract, as referred in the evidence on record and signatures on such documents were of the accused persons including an additional person Sh. Anil Bhola, that referred a compromise arrived between the parties.
121. Similarly, in the document Ex.DW-2/1, one Sh. Anil Kumar accepts to receive an amount of Rs. 20,000/- that is otherwise accepted in the evidence of the plaintiff in Suit No. 56/08/96 submitting that the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.59 amount of Rs.20,000/- might have been received by her son, but that was not regarding to the sale consideration. Moreover, this document Ex.DW- 2/1 was executed between Sh. Anil Kumar Bhola and Sh. Rajesh Babbar, and Sh. Anil Kumar Bhola being the son of the plaintiff who was the exclusive owner of the suit property was not competent to enter into any agreement for sale of ½ of the portion of the suit property shown in red colour in the site plan that was the subject matter of the agreement when the green tenanted premises in occupation of the defendant no.1 Sh. Pawan Kumar, the father of Sh. Rajesh Babbar, handed over the tenanted premises to the plaintiff and shifted to this ½ portion of the suit property shown in red colour in the site plan and admitted in the evidence that he had handed over the tenanted premises to the plaintiff in lieu of the compromise entered into the plaintiff with the defendant no.3 Sh. Rajesh Babbar, his son and that the defendant no.1, the father of the defendant no.3 shifted to such red portion of the suit property shown in the site plan that was ½ portion of the suit property referred in Ex.DW-2/1. Thus, for the same suit property, Sh. Rajesh Babbar as 2nd party cannot enter into two contracts, one with the plaintiff and other with the son of the plaintiff, who was not even authorised or competent to sale such suit property that was in the exclusive ownership of the plaintiff Smt.Suchinder Kumari Bhola. Thus, both the documents cannot be treated as the documents of contract of sale. However, as per the facts established on record on the basis of pleadings of both the parties, the evidence on record, there was an agreement to sell between the plaintiff and the Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.60 defendant no.1 and 3, that was never recorded in writing vide which the defendant no.1 had to hand over the peaceful vacant possession of the tenanted premises to the plaintiff and the defendant no.3 i.e the son of the defendant no.1 had agreed to purchase ½ of the portion of the suit property shown in red colour in the site plan for a sale consideration and after such compromise, though it was not recorded in writing yet it was duly executed upon by the parties, vide which the defendant no.1 has handed over the tenanted premises to the plaintiff shown in green colour in the site plan and shifted to ½ of the portion of the suit property along with his family members including the defendant no.3 and the possession was taken over by the defendant no.1 and 3 in lieu of such compromise of such portion that was the subject matter of the suit property and the only question left was the sale consideration that is the subject matter of this suit and the quantum of such sale consideration that was in dispute.
122. It is a well settled principle of law that for a valid contract, a written document is not required and only 3 ingredients are to be considered :
i). It should be in between two competent parties;
ii). There should be an agreement regarding some subject matter to be dealt with in the contract.
iii). It should be for the valid consideration.
123. Apart from these three ingredients, the contract should be Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.61 enforceable by law that it should not be for illegal consideration or for illegal subject matter and in this suit, the verbal agreement between the plaintiff and the defendant no.1 and 3 was entered into, as established on record vide which the defendant no.1, i.e the tenant under the landlord- ship of the plaintiff had to hand over the tenanted premises shown in green colour in the site plan and the defendant no.3 i.e the son of the defendant no.1, had to purchase the ½ of the portion of the suit property shown in red colour in the site plan and it was for the valid consideration for the sale amount. thus, as per the facts, the verbal agreement entered into the parties i.e the plaintiff on one side and the defendant nos. 1 and 3 on the other side, was duly executed and acted upon by the parties when the tenanted premises was handed over to the plaintiff and the defendants have shifted to the ½ portion of the suit property shown in red colour in the site plan, purchased by the defendant no.3 from the plaintiff for a due sale consideration. Thus, the issue no.6 is decided with the findings that the document Ex.PW-1/1 was not the document of contract of sale for the suit property.
124. Thus, on the basis of above findings and observations on record, it is held that the document Ex.PW-1/1 that was the application for compromise filed by the accused persons in Kalandra No. 54/94 and an undertaking recorded in Clause No. (4) of the application cannot be treated as an agreement for sale. Rather it is a document that can be treated to infer the terms of the contract of sale of ½ portion of the suit Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.62 property shown in red colour in the site plan as one of the surrounding circumstances to disclose the factum of agreement that was verbal in nature between the plaintiff Smt.Suchinder Kumari Bhola on one side and the defendant nos.1 and 3 on the other side and such clause is only referring certain terms of such contract referred to explain before the Court of SEM that the parties have arrived at a compromise to resolve their disputes to avoid the breach of peace in the local area within the jurisdiction of such Court. Thus, the issue no.6 is decided accordingly.
125. Similarly, issue No.7 that relates to the document Ex.DW-2/1 (the original of which is placed in the connected Suit No. 58/08/96 and exhibited as Ex.PW-1/1 in that suit) filed by the defendant no.3 in this suit whose defence is based on such document and is the subject matter of this issue, as to whether the defendant agreed to purchase the suit property measuring 50 sq. yards from Sh. Anil Kumar Bhola for a consideration of Rs.1,22,500/- in view of the above observations and findings on the above issue.
126. As the issue Nos.6 and 7 are taken together, it is observed that vide this document, the defendant could not establish on record that one Sh. Anil Kumar Bhola entered into an agreement with the defendant no.3 to sell 50 sq. yards i.e ½ of the portion of the suit property shown in red colour in the site plan for a consideration of Rs.1,22,500/- as it was observed that qua the portion of the suit property, the said Sh. Anil Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.63 Kumar, the son of the plaintiff was not authorised or competent to enter into such agreement and there is a clear admission on part of the defendant no.3 when he was examined as DW-2 that he did not ask or saw any power of attorney or authority or title of documents regarding his competence to enter into such agreement with the defendant no.3 either in the representative character to represent the ownership or as co-owner of the property whereas the plaintiff Smt. Suchinder Kumari Bhola has established on record through ocular as well as documentary evidence that the suit property as such was in exclusive ownership of the plaintiff and she has never authorised her son Sh. Anil Kumar, the 1st party for such document to enter into any such agreement.
127. It is further observed that the plaintiff has also established on record that for the same portion of the suit property that was the ½ of the portion of the suit property shown in red colour in the site plan, she had already entered into a verbal agreement with the defendant no.1 and 3 for contract of sale of such portion of the suit property for a sale consideration of Rs. 4.22 lacs and such agreement was acted upon when in lieu of such agreement, the defendant no.1 had handed over the tenanted premises shown in green colour in the site plan, to the plaintiff during the eviction proceedings before the Ld. Rent Controller and the defendant no.3 had to purchase ½ of the portion of the suit property within a stipulated period on making of the payment and the possession of such portion of the suit property in execution of such agreement had Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.64 already been taken over by the defendant no.1 and 3 and other members of their family shown in the array of defendants in the suit.
128. Moreover, the document (in original) Ex.PW-1/1 placed in the Suit No.58/08/96 that is the subject matter of this issue, is an undated document having no Clause of offer or acceptance or an agreement of both the parties i.e party no.1 and 2 Sh. Anil Kumar Bhola and Sh. Rajesh Babbar respectively with the intentions to enter into any such contract of sale of such portion that was the subject matter of contract of sale between the plaintiff and the defendant nos.1 and 3, the plaintiff as the 1st party and the defendant nos. 1 and 3 as the 2nd party. This document is in the form of a 'receipt' of a money of Rs.20,000/- by one Anil Kumar, the son of the plaintiff who was not authorised or competent even to receive such money or to undertake any undertaking of execution of sale document in respect of portion of the suit property in dispute.
129. Thus, the issue no. 7 is decided against the defendant no.3 in particular and against all the defendants in general with the observations that the defendant had never agreed to purchase ½ of the portion of the suit property shown in red colour in the site plan from Sh. Anil Kumar Bhola, the son of the plaintiff for a sale consideration of Rs.1,22,500/-. There was a contract verbal in nature between the plaintiff Smt. Suchinder Kumari Bhola and the defendant no.1 Sh. Pawan Kumar and the defendant no.3 Sh. Rajesh Babbar, on the other side, for the purchase of ½ Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.65 of the portion of the suit property shown in red colour in the site plan, for a sale consideration for a definite amount.
130. The issue No.7 is also decided that the defendant had never agreed to purchase ½ of the portion of the suit property shown in red colour in the site plan from Sh. Anil Kumar Bhola, the son of the plaintiff for a sale consideration of Rs.1,22,500/-. There was a contract verbal in nature between the plaintiff Smt. Suchinder Kumari Bhola and the defendant no.1 Sh. Pawan Kumar and the defendant no.3 Sh. Rajesh Babbar, on the other side, for the purchase of ½ of the portion of the suit property shown in red colour in the site plan, for a sale consideration of a definite amount.
131. Issue No. 9Whether the plaintiff is entitled to specific performance? OPP.
The issue No. 9 is taken up 1st for the sake of convenience. From the evidence on record, the onus of proving this issue was on the plaintiff. The plaintiff has produced her evidence as PW-4 and also examined PW-1 Sh. Joginder Singh with the records of SEM Court, PW-2 Sh.U.S Chauhan, Public Relation Inspector from the post office and also PW-2 Sh. Salig Ram (inadvertently examined as PW-2 and is treated as Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.66 PW-2 A for the purpose of clarity in the judgment), Head Postman from Shahdara Post Office, Delhi, with the records of post office.
132. PW-3 Sh. C.S Rawat and Sh. R.S Yadav exhibited the valuation report to prove the valuation of the suit property and also one witness Smt. Prem Lata, the Head Clerk from the office of Sub-Registrar- 4, Seelampur, Delhi, was produced and examined as PW-5 with the records of title and ownership records of the suit property and the documentary evidence proved on record, is able to establish that she was the owner, rather exclusive owner of the suit property in question, as she derived the title of ownership qua the suit property through the Will executed in her favour by her late husband Sh. Sarwan Bhola, who acquired the title over the suit property from his mother Smt. Viranwali.
133. She had also established on record that the defendant no.1 Sh.Pawan Babbar was his tenant and the eviction petition was filed by her before the Court of Ld. Rent Controller that was disposed of after a compromise arrived between her as one party and the defendant no.1 and 3, as the 2nd party, that was verbal in nature that the defendant no.1 shall hand over the peaceful vacant possession of the tenanted premises shown in green colour in the site plan, to the plaintiff and the defendant no.3 measuring 50 sq. yards for a sale consideration and in lieu of such compromise, not only the defendant no.1 had handed over the tenanted premises to the plaintiff, but also took possession of the portion of the suit Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.67 property shown in red color in the site plan that was the subject matter of the sale contract among these three.
134. The only dispute that came on record was as to what was the amount of sale consideration. As per the plaintiff, it was an amount of Rs.4.22 lacs and as per the plaintiff, this amount was never paid despite the possession of the suit property that was the subject matter of the contract of sale was handed over to the 2nd party i.e the defendant no.3, there and then, whereas the defendant no.3 has raised the allegations and defence that the sale consideration amount was only Rs.1,22,500/- out of which he has paid an amount of Rs.30,000/-. From the evidence on record, it is being duly proved that the plaintiff has not controverted the amount mentioned for the sale consideration despite the lengthy cross- examination of this witness, running in number of pages on number of dates. She has specifically denied the suggestion that the total consideration amount of sale was Rs.1,22,500/-. She has also denied that she has ever received an amount of Rs.20,000/- as advance money and Rs.10,000/- after the contract, at any point of time. Rather the documents produced on record and exhibited duly, show that there was no contract between the plaintiff and the defendant no.3 for the purchase of such portion of the suit property for a sale consideration of Rs.1,22,500/-. Rather the defence of the defendant no.3 was based on the document Ex.DW-2/1 (original of which is Ex.PW-1/1 placed in the Suit No.58/08/96) that as per such document, it was a contract of sale for such Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.68 ½ portion of the suit property shown in red colour in the site plan, between one Sh. Anil Kumar Bhola who in representative character acting on behalf of the plaintiff and as co-owner entered into such agreement of sale of such property for an amount of Rs.1,22,500/-.
135. The issue No.7 has already been decided on this point that this document Ex.DW-2/1 cannot be considered for the contract of sale of the ½ portion of the suit property shown in red colour in the site plan. Moreover, the plaintiff in so many words with the number of documents placed before number of Courts and authorities, during the pendency between the parties regarding the same subject matter of the suit property has mentioned invariably the sale consideration amount as Rs.4.22 lacs in verbal contract of sale qua such property, entered into the defendant no.1 and 3.
136. The defendant no.3 has never controverted such sale consideration in any of such proceedings and only placed his defence in the present suit only by placing document Ex.DW-2/1. Like this document, the other documents are not tenable to record that the sale consideration amount was Rs.1,22,500/- and not Rs.4.22 lacs. The documents of the defence placed through the defendant no.3 who was the 2nd party to purchase the ½ portion of the suit property in question is basically based on the document Ex.DW-2/1.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.69
137. The defendant has also placed another document that was the final orders of Kalandra under section 107/150 Cr.P.C dt. 29.06.1995 submitting that it was an attested copy of the SEM Court that records the sale consideration amount of Rs.1,22,500/-. I have searched the documents of both the files placed before me, one is the present suit and other is the suit filed by the defendant no.3, but I could not trace the original of such orders anywhere to rely on such document.
138. To the surprise of the Court, the plaintiff has produced one Sh.Joginder Singh, a Clerk from the SEM Court, Seelampur, East Distt., Delhi (examined as PW-1) with the records containing the records mentioning the factum of compromise arrived between the parties i.e the plaintiff and the defendant no.3 qua the sale of the portion of the suit property. The official who was examined as PW-1 has produced the original of the document Ex.PW-1/1 that was the application for compromise and also produced the statement of the plaintiff Smt.Suchinder Kumari Bhola, who was the accused in such Kalandra and such document was Ex.PW-1/2 and even the orders of such Court passed by SEM on 12.10.1994.
139. The Clause (4) of the document Ex.DW-2/1 mentions the amount of Rs.4.22 lacs as the sale consideration amount though at one place it was containing a cutting, but at the same time, over such cutting, a line has been added to mention an amount of sale consideration, clearly as Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.70 Rs.4.22 lacs and the statement Ex.PW-1/2 of the plaintiff Smt. Suchinder Kumari Bhola, originally produced by the Record Clerk of the SEM Court, also contains the factum of sale consideration of Rs.4.22 lacs.
140. Unfortunately the defendant no.3 who was also an accused in such proceedings, has miserably failed to produce his statement, if at all, it has been recorded before the SEM Court to record the sale consideration amount of Rs.1,22,500/-. This is also surprise to the Court that another record from the SEM Court that was the order dt. 12.10.1994 Ex.PW-4/9 clearly shows that due to compromise, the Court was with full satisfaction that the case was fit to be compromised and discharged all the accused persons and the proceedings were closed vide such orders and the case file was directed to be consigned to R/Room.
141. The orders dt. 12.10.1994 is reproduced for the purpose of clarity on this point :
'Both the parties are present. It is a cross case. I heard them and also perused the Kalandra in detail. It has been found there is no apprehension of breach of peace. Both the parties furnished a written compromise through their Ld. counsel which has been accepted after fully satisfaction. So this case is fit to be compromised discharged. Hence all the respondents of both the parties are hereby compromise discharged. Proceedings are closed. Case file be consigned to record'.
142. This order does not mention any amount of sale consideration Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.71 that was the subject matter of compromise between the parties who were the accused before such Court.
143. The defendant no.3 to the contrary has produced the copy of the final orders dt. 29.06.1995 that was neither exhibited nor marked, nor was produced before the officials who appeared before the Court with the records of SEM Court and examined as PW-1 and such attested copy is Ex.PW-1/3 in the suit filed by the defendant no.3 Sh. Rajesh Babbar that was not a complete order to show any attestation of such authority, rather is a ½ of the paper that is a 1st page only that mentions an amount of Rs.1,22,500/- as per the defendant and the Court is not able to understand as to how the Kalandra was placed for the final disposal after a period of one year i.e 29.06.1995, when vide orders dt. 12.10.1994, the proceedings have already been closed and the case file was consigned to R/Room by the SEM Court.
144. It is also surprise to note as to why the defendant no.3 has not opted for such orders before Sh. Joginder Singh, who was examined as PW-1, who came with the records of SEM Court and produced all the originals from such Court and duly exhibited the documents in the Court and surprisingly this witness was not cross-examined by any of the defendants though the opportunity was given to them. Thus placing reliance on such document Ex.PW-1/3 that was the alleged ½ page of the final orders of the SEM Court dt. 29.06.1995 that was allegedly an Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.72 attested copy from the Court of SEM, is not made
145. It is also surprising to note that as to when the statement of the plaintiff Smt. Suchinder Bhola recorded before the SEM Court mentions an amount of Rs.4.22 lacs as the sale consideration, why there was no statement produced of the defendant no.3 that could ever had been recorded by the SEM, how such ½ of the final orders recorded an amount of Rs.1,22,500/- as to there was no document explained to be placed before such Court by any of the accused to show any contract of sale for a sale consideration of Rs.1,22,500/- as the statement of defendant no.3 if could have been recorded, was not produced by the defendant no.3 in the present suit or as plaintiff in the connected Suit No. 58/08/96.
146. Thus, it is observed that the plaintiff is able to establish clearly the following three facts on record :
i). that there was a contract verbal in nature of sale for ½ of the portion of the suit property shown in red colour in the site plan wherein 1st party was the plaintiff and 2nd party was the defendant nos. 1 and 3.
ii). that as per the terms of contract, the plaintiff Smt. Suchinder Kumari Bhola has agreed to take possession of the tenanted premises from the defendant no.1 and to hand over the ½ of the portion of the suit property to the defendant no.1 and 3, whereby the 2nd party i.e the defendant nos. 1 and 3 has executed to purchase such ½ portion of the suit property shown in red colour in the site plan.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.73
iii). the defendant no.1 in execution of such contract, handed over the tenanted premises to the plaintiff and the plaintiff handed over the peaceful vacant possession of ½ of the portion of the suit property, to the defendant no.3.
Thus, there was a valid contract of sale between the plaintiff and the defendant no.3 for the ½ portion of the suit property that was measuring 50 sq. yards shown in red colour in the site plan, for a sale consideration of Rs.4.22 lacs.
147. Further, it is established on record and rather not disputed by any of the defendants that the possession of the subject matter of the suit property that was ½ of the portion of the suit property measuring 50 sq. yards shown in red colour in the site plan, was handed over by the plaintiff in execution of such agreement, there and then, and the defendant no.3 along with his family i.e the other defendants, have shifted to such portion and are in possession of such portion of the suit property since 1994 till date.
148. It is also established on record that the sale consideration of Rs.4.22 lacs was never paid by the defendant no.3 to the plaintiff and the plaintiff had never received such amount and under compelling circumstances, she had to raise such cause of action by way of filing the present suit for specific performance.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.74
149. The contentions of Ld. counter for the defendant no.3 that the sale consideration amount was Rs.1,22,500/-, could not be established on record. Also paying an amount of Rs.30,000/- to one Sh. Anil Kumar Bhola, in two parts i.e one as Rs.20,000/- as advance money and later on, Rs.10,000/-, cannot be upheld as a part payment ever made to the plaintiff for the sale consideration amount fixed for Rs.4.22 lacs. The plaintiff has invariably stated such facts that she has never authorised her son to receive such amount that was a part of sale consideration of the contract of sale.
150. The defendant has failed to produce any documentary evidence or the evidence of any other nature to prove that any amount was ever paid to the plaintiff after compromise, though there was a clear admission on the part of the defendants that they have taken possession of the portion of the suit property that was the subject matter of the contract of sale.
151. Thus, the plaintiff is entitled for a decree for specific performance to receive the sale consideration amount of the contract of sale from the defendant no.3 and on receipt of such amount, as she is still ready to execute the sale documents of the suit property in dispute, thus, this issue is decided in favour of the plaintiff that the plaintiff is entitled for the specific performance of the contract of sale entered between the plaintiff and the defendant no.3.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.75 152. Issue No. 8 and 10
viii)Whether the plaintiff is entitled to claim mesne profits, if so, at what rate, what amount and for what period? OPP.
x) Whether the plaintiff is entitled to possession by way of alternative relief as claimed? OPP.
In view of the above observations on the above mentioned issues particularly on the issue No.9, in which it was held that the plaintiff is entitled for the relief of specific performance of the contract of sale from the defendant no.3 and is also entitled to receive the sale consideration amount of Rs.4.22 lacs for execution of the sale documents qua the ½ portion of the suit property shown in red colour in the site plan and it is also established on record that possession of such property in dispute has already been admittedly taken over by the defendant no.3 and his family members i.e the other defendants, at the time of agreement between the parties in the year 1994 itself and the plaintiff is entitled to receive the sale consideration amount for the contract of sale and also that she is entitled to an alternative relief in case there is a denial/default on the part of the defendant no.3 to pay such sale consideration amount.
153. Thus, in such eventuality, the plaintiff need not to execute the documents qua such portion of the suit property in favour of the defendant no.3 and is entitled to receive the possession of such portion of the suit Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.76 property back from the defendants who are still in possession of such property as the possession was handed over by the plaintiff in pursuance of the contract of sale entered between the plaintiff and the defendant no.3 in 1994, as in such eventuality, the defendant no.3 and all other defendants becomes the un-authorised occupants in such portion of the suit property, as the defendants cannot possess such suit property in any capacity, if the contract of sale is not performed.
154. Also, as the defendants have enjoyed such property since 1994, the year when the contract of sale was entered into, therefore, they are also liable for payment for the charges for use and occupation of such property to the plaintiff who was the exclusive owner of such property and was legally entitled to receive such amount from the users of such property.
155. Considering the valuation of the suit property, the nature of rent of a small portion of such property, admittedly @ Rs.200/-p.m as admitted by the defendant no.1 for one room under his tenancy. Also, on the basis of valuation of such suit property by the plaintiff for the area measuring 50 sq. yards that was ½ of the portion of the suit property and the locality of the are where the property is situated, the rate of mesne profits can be fixed on the basis of such facts established on record.
156. Also, the defendant's plea was that the property was not Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.77 properly valued as it was costing more for the land as well as for the construction and a suggestion was put to the witness PW-4 Smt. Suchinder Kumari Bhola at the time of her cross-examination that the market rate of land in 1994 was Rs.2200/- to Rs.2500/- per sq. yard.
157. Thus, in these facts and circumstances of the case, it would not be in-appropriate if the rate for portion of the suit property in use and occupation of the defendants is fixed @ Rs.5000/-p.m. The veracity of rates in different years is not being considered as it is assumed that the defendant no.3 will prefer to perform his part of obligation in the specific performance of the contract of sale and also that the family of the defendant was in possession of such portion of the suit property, in pursuance of the compromise arrived between the plaintiff and the defendants vide which the other proceedings were also closed in different Courts.
158. Thus, the issue No. 8 is decided in favour of the plaintiff holding that the plaintiff is entitled for mesne profits from the defendant no.3 and his family members who are the other defendants, as they are liable to pay charges for the use and occupation of the portion of the suit property in question shown in red colour in the site plan, @ Rs.5000/-p.m since 10.09.1994 i.e the date of compromise till the possession is handed over to the plaintiff.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.78
159. Issue No.10 is also decided in favour of the plaintiff that the plaintiff is entitled for the possession of the portion of the suit property, as an alternative relief if obligation for performance of the contract of sale, is not being carried out or performed by the defendant no.3.
160. Issue No.11 Whether the plaintiff is entitled to the interest. If so at what rate, for what period and to what amount? OPP.
As the issue Nos. 8,9 and 10 are decided in favour of the plaintiff for making the plaintiff entitled either for specific performance of the contract of sale or in alternative, for decree of possession of the portion of the suit property in dispute along with mesne profits @ Rs.5000/-p.m for the period the portion of the suit property was in possession of the defendants.
161. Thus, the plaintiff is also entitled for the interest in the following manner :
i). Interest @ 14 % per annum on the amount of sale consideration i.e Rs.4,22,000/- w.e.f 10.09.1994 till the date of decree i.e today on 31.08.2010, in case, the defendant no.3 opts to perform his part of obligation qua the contract of sale by depositing the sale consideration amount in the Court within a period of one month from the date of Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.79 orders/judgment.
ii). In case, the 1st relief is not received by the plaintiff in the form of specific performance of the contract of sale and the defendant no.3 fails to pay the amount as above mentioned for the sale consideration along with interest for the above mentioned period, then as an alternative, the plaintiff shall be entitled to claim mesne profits/damages @ Rs.5000/-p.m for the use and occupation of the portion of the suit property, from the defendant no.3 and his family members, for the period the portion of the suit property was in possession of defendants, along with an interest @ 14 % per annum on such amount calculated for mesne profits treating that amount as the principal amount.
Issuewise findings for Suit No. 58/08/96
162. Issue No.1 Whether the suit is barred by the period of limitation? OPD.
The onus of proving this issue was on the defendants who have raised this plea that the suit is barred by limitation. The defendants have not placed any evidence on this issue, nor tendered any submissions. It appears that this issue has been taken for the sake of it, otherwise this issue is a legal issue and is considered accordingly.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.80
163. This suit was filed in the year 1996 on 16.08.1996 and the cause of action arose in 1994, as admittedly the compromise between the parties had taken place in the year 1994. Thus, the contention of the defendants that the suit is barred by limitation is not tenable. Thus, is not established by the defendants and it is held that the suit is not barred by limitation.
164. Nothing has been produced on record to establish this issue on behalf of the defendants however this issue being the legal issue is taken up for consideration in view of the proposition of law applicable to this suit.
165. The suit is barred by limitation nor any submissions have been made, as per the schedule provided under the Limitation Act, 1963, the period of limitation for the suit for the specific performance of a contract is provided as 3 years from the date fixed for the performance and as per such document Ex.PW-1/1, the alleged date was 10.09.1994, the suit was filed on 16.08.1996.
Thus, this suit is within the period of limitation, decided against the defendants and goes to favour the plaintiff.
166. Issue No.2 Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.81 Whether the suit is bad for mis-joinder and non-joinder of necessary parties? If so, its effect? OPD.
The onus of proving this issue was on the defendants. The contention of the defendants was that this is a suit for specific performance of the agreement regarding sale of ½ of the portion of the suit property and the other members of the family of the plaintiff Sh.Rajesh Babbar who were in occupation of such property, were not made the parties and were necessary to be made the parties to the suit and thus, the suit is bad for non-joinder of the necessary parties.
167. It is observed that the plaintiff's suit is based on the document Ex.PW-1/1 vide which he refers an agreement to sell of ½ portion of the suit property between Sh. Anil Kumar Bhola and the plaintiff and thus, to such agreement, the controversy in issue can be decided between the plaintiff and the defendants and the members of the family of the plaintiff are not required to decide the controversy in question. Thus, the plea of the defendants is not established that the suit is bad for mis-joinder of the necessary parties.
Thus, this issue is not decided in favour of the defendants and goes to favour the plaintiff.
168. Issue No.3 Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.82 Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? If so, what is proper valuation of the suit? OPD.
The onus of proving this issue was on the defendants. The plaintiff's contention was that the sale consideration of the sale contract was only Rs.1,22,500/- and thus, the property has been valued accordingly and proper Court fees has been filed.
169. To counter such plea, the defendants have not produced any valuation report to prove the market value of the property and thus, the defendants could not establish that the suit was not properly valued for the purpose of Court fees and jurisdiction.
170. The issue is similar to the issue No. 4 in Suit No. 56/08/95 and such issue was framed on the plea of the defendant who is a plaintiff in the present suit. It is observed that the subject matter of the suit for the purpose of Court fees and jurisdiction is the same but then also, both the plaintiff and defendants have raised such plea of improper valuation of the suit property in their respective suits. The issue in such suit was decided against the defendants of such suit and in favour of the plaintiff, thus, accordingly it should go against the plaintiff who was defendant in such case.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.83
171. Here it is worth to mention that the alleged amount for contract of sale in the instant suit was Rs.1,22,500/- and the plaintiff was in possession of the suit property at the time of filing of the suit.
172. Thus, as per the value of the suit property, in view of the alleged amount of consideration for the alleged contract of sale, the Court fees attached with the suit is found proper for the purpose of Court fees and jurisdiction. The contrary facts regarding the market value of the suit property were not established by the defendants for the purpose of valuation of the suit for Court fees and jurisdiction.
Thus, this issue is decided in favour of the plaintiff holding that the suit is valued properly for the purpose of Court fees and jurisdiction.
173. Issue Nos. 4 & 5iv).Whether the agreement of sale dt. 08.09.94 was executed between the plaintiff and defendants through defendant no.1 and signatures of defendant no.1 were obtained on the blank papers as alleged? If so, its effect? OPD.
v). Whether the plaintiff is entitled to decree for specific performance of the agreement dt. 08.09.1994 against the defendants? OPP.
The issue Nos.4 & 5 are inter-related and are based that a pivotal point as to whether the document Ex.PW-1/1 was a contract for Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.84 sale of ½ portion of the suit property. The defendant has questioned such document as forged and fabricated one in issue no.4 and the plaintiff is seeking the relief of specific performance of the contract of sale on execution of such document. Thus, these issues are taken up together.
174. It is mentioned that the same and similar issues were framed in the earlier suit No. 56/08/95, as the Issue No.7 in Suit No. 56/08/95. Also, issue No.9 in Suit No. 56/08, the plaintiff of that suit who is the defendant no.2 in this suit, is also seeking specific performance of the contract of sale for the ½ portion of the suit property, but on the basis of different terms and conditions entered into between the parties. Thus, the findings of issue No.7 and 9 of Suit No. 56/08/95 shall be read in these two issues also for this suit.
175. However the document in question Ex.PW-1/1 allegedly known as the document dt. 08.09.1994, but as such it does not bear any date, to say that such document was executed on 08.09.1994. This document contains the signatures of the defendant no.1 Anil Kumar that mentions a date of 08.09.1994, but neither any other signatures mention such date nor the signature of the plaintiff bears any date. Also the document has no dates either in the start or at the end to say that such document was dt. 08.09.1994 and the defendant no.1 Anil Kumar whose signatures such date has taken a plea that he affixed his signature along with date on a blank paper when no contents were written when he put his Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.85 signature. The defendant has denied the contents of the document specifically.
176. However, it is observed from the record that the defendant no.1 could not establish on record that his signatures were taken on blank papers and the subject matter was written above the green line after obtaining the signatures on the blank papers.
177. The witnesses produced on record, have also not supported the case of the defendants. Thus, the document Ex.PW-1/1 cannot be treated as prepared on the blank paper after obtaining the signature of the defendant no.1 on blank papers, but, it is surprise to note as to how this document has been treated dt. 08.09.1994 when there is no date mentioned on such document.
178. It is only a date mentioned under the signature of the defendant no.1 that is on the revenue stamp, but this document does not bear any date of such document and a date under the signature of the defendant no.1 cannot be treated as the date of document. Otherwise also, in view of the findings on the issues, the issue No.5 decided against the plaintiff on the basis of such document and similarly issue No.7 decided in the earlier Suit No. 56/08/95, wherein the plaintiff was the defendant no.3, this document was not treated as the agreement of sale in any manner that was executed between the plaintiff and the defendant no.1.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.86
179. Thus, it does not affect as to whether the signature of the defendant no.1 were obtained on the blank papers or after writing of the contents on such papers. Its effect is that such document cannot be treated as the document of sale of the portion of the suit property in question.
180. Also there was no signatures of the other defendants i.e the defendant nos.2 and 3, except of the defendant no.1 and the plaintiff, and also the plaintiff agreed in his evidence that he could not see or ask for any document of authority obtained from other defendants, i.e the defendant no.2. Thus, this document cannot be treated as the document executed on behalf of the defendants through the defendant no.1.
181. Thus, the issue No.4 is decided accordingly that the document under reference was not a document of agreement of sale between the plaintiff and all the defendants through the defendant no.1, for the sale of the portion of the suit property in question.
182. Thus, the present suit seems to be a counter blast of the earlier suit No. 56/08/95 filed by Smt. Suchinder Kumari Bhola, the defendant no.2 herein, as such document Ex.PW-1/1 (copy of which was Ex.DW-2/1 in Suit No. 56/08/95) was never acted upon as contract of sale by the plaintiff on any point of time nor its specific performance was sought after 10.09.1994, the date of termination of terms and duration of the alleged Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.87 contract and its specific performance was sought only after filing of the Suit No. 56/08/95 filed by Smt. Suchinder Kumari Bhola, however Sh. Rajesh Babbar, the plaintiff of the instant suit remained continued in possession of the relevant ½ portion of the suit property since then without making any payment of any sale consideration whether it was Rs.1,22,500/- as per his alleged terms of contract with Anil Kumar or Rs.4.22 lacs as per the alleged terms of the contract of sale with Smt. Suchinder Kumari Bhola.
183. Nor he claimed an amount of Rs.40,000/- that was double of Rs.20,000/- allegedly received by one Anil Kumar treating such document as a receipt when according to the plaintiff Rajesh Babbar, Anil Kumar was indifferent in performing his part of obligation waited for 2 years up to 1996, when the earlier Suit No. 56/08/95 was filed by Smt. Suchinder Kumari Bhola in the Court of law.
184. The observations and findings on the issues Nos. 6,7 and 9 of the connected Suit No. 56/08/95 shall be read in the findings of the Issue Nos.4 and 5 of the instant suit.
185. So far as the issue No.5 is concerned, the document Ex.PW- 1/1 and the evidence on such document was also same and similar, as was in the earlier suit No. 56/08/95 filed by the plaintiff Smt. Suchinder Kumari Bhola who is the defendant no.2 in this suit. The nature of this Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.88 document and its effect has already been discussed and decided in issue No. 7 in the connected Suit No. 56/08/95. Thus, the finding recorded therein are to be taken on record in this case also.
186. The Issue No. 7 in Suit No. 56/08/95 was decided against the defendant no.3 Sh. Rajesh Kumar Babbar who is the plaintiff in this suit. A specific finding was recorded in such issue No.7 that qua the said suit property, the plaintiff Sh. Anil Kumar Bhola was not competent to enter into any agreement with the defendant for any consideration amount of sale to sell such property to the plaintiff and thus, this issue is also decided against the plaintiff, in view of such findings that the plaintiff is not entitled for the decree of specific performance of the agreement dt.08.09.1994 against the defendants, as out of these three defendants, the defendant no.2 Smt. Suchinder Kumari Bhola was plaintiff in that suit and the issue was decided in her favour.
187. Further, it is observed that the plaintiff has failed to establish on record that the defendant no.1 Sh. Anil Kumar Bhola was competent to enter into any such agreement to sale.
188. The plaintiff has also failed to establish that Sh. Anil Kumar Bhola was acting in the representative character on behalf of the exclusive owner i.e the defendant no.2 Smt. Suchinder Kumari Bhola, who derived her ownership rights from the title document executed by her husband, Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.89 exclusively in her favour. The plaintiff has also failed to establish that the 1st party Sh.Anil Kumar Bhola was the co-owner to such property in any manner.
189. Also while deciding the issue No.7 in the earlier Suit No.56/08/95, it was observed by the Court on the basis of records placed in both the Suit Nos. 56/08/95 and 58/08/96 that the document could not constitute a document for agreement to sell, as there is no averment that the 1st party Sh. Anil Kumar was agreed to sell the portion of the property in question and that the 2nd party offered to purchase such suit property. Such document was in the form of a receipt that shows that the 1st party received an amount of Rs.20,000/- against any settlement, for the portion of the suit property, but in the document there is nothing to show that this document was pertaining to sale of such property in any manner.
190. Moreover, it is observed that such document was referring the balance payment of Rs. 1,02,500/- on 10.09.1994 and in case of failure of making of such payment, the amount of Rs. 20,000/- will be forfeited to the 1st party and in case of default, on the part of the 1st party, he would be liable to pay the double amount i.e Rs.40,000/-, but there is nothing on record and the plaintiff could not establish that for not completing the part of obligation by the 1st party Sh. Anil Kumar, he had ever demanded an amount of Rs. 40,000/- at any point of time.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.90
191. The plaintiff has shown a copy of draft for an amount of Rs.92,500/- dt. 02.05.1996 that was prepared in favour of Smt. Suchinder Kumari Bhola and taken a plea that he was ready with such draft that was the balance amount of the sale consideration amount of Rs.1,22,500/- after making of the payment of Rs.30,000/- to the son of the plaintiff, the defendant no.2 in this case, but such document was not exhibited in this suit though placed in Suit No. 56/08/95 and that the document was not even exhibited or marked or produced in original to show that the plaintiff was interested in performing his part of obligation to the alleged contract of sale entered with the defendant no.1 Sh. Anil Kumar Bhola.
192. It is surprise to note that if the plaintiff is relying on the document Ex.PW-1/1 as the document of contract of sale, for the portion of the suit property in question wherein the 1st party was Sh. Anil Kumar, the son of the defendant no.2 Smt. Suchinder Kumari Bhola, then why a draft of Rs.92,500/- was prepared in favour of Smt. Suchinder Kumari Bhola, rather than Sh. Anil Kumar Bhola who was the 1st party, as per the alleged contract of sale.
193. Further, it is also surprise to note that the contract of sale was to be terminated on 10.09.1994, then preparing of draft on 02.05.1995 to show his intentions to perform such contract of sale, is beyond a common parlance as to how on 02.05.1995 such contract of sale could be executed when it was terminated on 10.09.1994.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.91
194. The facts came on the floor in both the connected suits, in which the plaintiff is the defendant no.3 Sh. Rajesh Babbar in Suit No.58/08/96, belies not only the document allegedly produced as the document of contract of sale, but also belies the plaintiff for the story of contract of sale, entered into with one Sh. Anil Kumar, who was the son of the plaintiff.
195. Further, it cannot be treated that the plaintiff who was the defendant no.3 in Suit No. 56/08/95, was not aware of the exclusive ownership of the defendant no.2 Smt. Suchinder Kumari Bhola claiming the contract of sale to be executed from him as the defendant no.3.
196. It is also surprise to note that such draft or copy of such draft in the suit of the plaintiff to make it a document to prove the intentions that he wanted to perform his part of obligation and it is the 1st party Sh. Anil Kumar who retracted back to execute his part of obligation to execute the sale document. Thus, the case of the plaintiff is belied on the facts on record and as the document Ex.PW-1/1 on which the case of the plaintiff is based, is not treated as the document of contract of sale.
197. Also, when the 1st party to such document was not competent and authorised to enter into such contract of sale, then the question of performance of such contract does not arise.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.92
198. As per the document Ex.PW-1/1 of the alleged date 08.09.1994, the plaintiff as 2nd party, in default of the 1st party, could be entitled only for double the amount of advance paid that was Rs.40,000/- and not for the execution of the specific performance of the sale of any property as th word 'sale' has never been used that the party no.1 Sh. Anil Kumar Bhola, has agreed to sell any such portion of the suit property and the contract was time bound for payment up to 10.09.1994 only and the plaintiff has never claimed any such amount of Rs.40,000/- from the party No.1, thus, cannot claim by way of this suit, a specific performance of any contract between them.
199. Thus, the issue No.5 is decided against the plaintiff holding that the plaintiff is not entitled to decree for specific performance of the agreement dt. 08.09.1994, and goes in favour of the defendants.
200. Issue No. 6vi). Whether the plaintiff is entitled to the injunction as prayed for? OPP.
In view of the fact that the issue No.5 is not decided in favour of the plaintiff, this issue is decided against the plaintiff to hold that the plaintiff is not entitled to injunction prayed for qua the portion of the suit property in question.
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.93 Relief for Suit No. 56/08/95
201. In view of the my findings on the issues of both the suits, the suit of plaintiff is decreed in favour of the plaintiff and against the defendants and the plaintiff is entitled for the reliefs that is divided into two parts :
A decree for specific performance is passed in favour of the plaintiff Smt. Suchinder Kumari Bhola and against the defendant no.3 Sh. Rajesh Kumar Bhola for the contract of sale of the ½ of the portion of the suit property bearing No. 251/4 A, Gali No.5, Bhola Nath Nagar, Shahdara, Delhi- 32, shown in red colour in the site plan and in execution of specific performance of the contract of the sale, the plaintiff shall receive the sale consideration amount of Rs.4,22,000/- plus an interest @ 14% p.a on such amount w.e.f 10.09.1994 till 31.08.2010, the date of decree, to be received from the defendant no.3 Sh. Rajesh Kumar Babbar, who shall deposit such amount in the Court within a period of one month from the date of orders/judgment and on deposition of such amount in the Court, the plaintiff shall execute the sale documents for the portion above mentioned of the suit property in favour of the defendant no.3 Sh. Rajesh Kumar Babbar and also get the execution and the registration of the sale documents through the Local Commissioner i.e the Court Officer appointed for the purpose of the execution and the registration of such documents before the Sub-Registrar and the expenses of such Court Officer/Commissioner are fixed @Rs.7000/-, that shall be borne by both the parties i.e the plaintiff and the defendant no.3 in equal shares. The Court Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.94 Commissioner/Receiver appointed is the Civil Nazir of this Court.
In Alternative In case of default of payment within the stipulated period of one month by the defendant no.3 Sh. Rajesh Kumar Babbar, the plaintiff is entitled for the decree of possession of the above mentioned portion of the suit property against all the defendants and also for an amount of Rs.5000/-p.m from 10.09.1994 till the realization of the amount, as mesne-
profits for the use and occupation of such property by the defendants, as an un-authorised occupants of such property along with an interest @ 14 % p.a on such amount calculated for mesne profits treating that amount as the principal amount.
No orders as to further interest or costs.
Relief for Suit No. 58/08/96
202. In view of the my findings on the issues of both the suits, as the issue Nos. 4, 5 and 6 are decided against the plaintiff, thus, as a result, the suit of the plaintiff is dismissed.
No orders as to further interest or costs.
Decree sheet be prepared accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
31st Day of August, 2010. Addl. District Judge,
Centl.-04, Tis Hazari Courts,
Delhi. 31.08.2010
Suit Nos.56/08/95 & 58/08/96 Suchinder Km. V/s Pawan Kumar Babbar & Ors. & Rajesh Kumar Babbar V/s Anil Kumar Bhola & Ors.PageNo.95