Delhi District Court
Smt. Mani Devi vs Sumitra Devi on 28 February, 2020
THE COURT OF JSCC/ASCJ/GUDN./ NORTH ROHINI/ DELHI
PRESIDING OFFICER: Ms. AANCHAL
In the matter of : CS.No.535429/16
Smt. Mani Devi
W/o Sh. Jagdish Prasad
R/o - Q-8/2, Mangolpuri,
Delhi - 110083
.........Plaintiff
vs.
1. Sumitra Devi
W/o Matadin
R/o - Q-8/2, Mangolpuri,
Delhi - 110083
2. Guddi
W/o Sohan Lal
R/o - Q-8/2, Mangolpuri,
Delhi - 110083
3. Sohan Lal
S/o Late Sh. Budha Ram
R/o - Q-8/2, Mangolpuri,
Delhi - 110083
4. Matadeen
S/o Late Sh. Budha Ram
R/o -Village, Rasgan, Tehshil
Madnawar, Distt. Alwar
5. Smt. Chhimli
D/o late Sh. Budha Ram
W/o late Sh. Sagra
R/o - Q08/6, Mangolpuri,
Delhi - 110083
Page 1
6. Smt. Shanti
D/o late Sh. Budha Ram
W/o Sh. Raghbir
R/o - W-52, Jwalapuri,
Delhi
7. Smt. Parti Devi
D/o late Sh. Budha Ram
W/o Sh. Mohar Singh
R/o - A-101, Mangolpuri,
Delhi - 110083 .......Defendants
Date of Institution of suit : 28.09.2012
Date of reserving Judgment : 25.01.2020
Date of announcement of Judgment:28.02.2020
JUDGMENT
1. The present suit is filed by the plaintiff seeking following reliefs :
(i) Declaring that the plaintiff is the owner of the ground floor of the property known as Q-8/2 Mangolpuri, Delhi- 110083 area measuring 19 sq meter. (hereinafter called suit property).
(ii). Decree of possession of abovesaid suit property against the defendants.
(iii). Decree of recovery of amount as mesne profit for the sum of Rs.20,000/- per month from the date of filing of the present suit till its realization.
(Initially, the suit was filed against two defendants Sumitra Devi and Smt. Guddi and thereafter an application under Order 1 Rule 10 CPC was filed by the remaining defendants which was allowed by Ld. Predecessor of this court vide order dt. 20.08.2014.) Page 2
2. The brief facts as pleaded by the plaintiff are that she bought the suit property by way of irrevocable Power of Attorney against consideration as paid as per the circle rate prevalent at that point of time from one late Sh. Ram Swaroop which was registered on 22.12.2010. Late Sh. Ram Swaroop who was an old and handicapped person as such he requested the plaintiff to allow him to stay in the suit property during his life time. Keeping this in consideration and on the request of the nearby people of the society on the humanitarian ground, the plaintiff allowed late Sh. Ram Swaroop to stay in the ground floor of the premises and as such the understanding between the plaintiff and the late Sh. Ram Swaroop arrived at orally wherein he was allowed to stay in the suit property during his life time. In pursuance of this irrevocable power of attorney and possession, plaintiff applied for water and electricity connection and got sanctioned too in her name and she also got the voter identity card and these connections. On 18.05.2012, late Sh. Ram Swaroop who was admitted into hospital in Balaji Action, breathed his last and the dead body was brought at the suit property made subject matter of the present suit by the defendants alongwith some other people not known to the plaintiff but claiming themselves the relatives of late Sh. Ram Swaroop. That on humanitarian ground, plaintiff did not ask for the possession of the suit property as the persons including the defendants were in deep grief however the illegal design of the defendants could not be perceived by the plaintiff and fallen pray to the illegal design of the defendants as the defendants denied to vacate the suit property when the plaintiff asked the same after expiry of some period. It is further stated that denial to the plaintiff to hand over vacant peaceful possession of the property as made subject matter of the suit, forced the plaintiff to file the Page 3 complaint in the concerned Police Station which was duly acknowledged by them vide DD No. 40-B at 3.40 on 29.07.2012 but no criminal action against the defendants was taken. Plaintiff again served upon the defendants the legal notice of demand asking them to hand over the vacant peaceful possession of the property alongwith the occupation charges as well as the cost of the notice within the period of 15 days from the date of receipt of the said notice however the said notice was replied by the reply dt. 17.09.2012 while taking the false and frivolous pleas and denying the documents as relied upon by the plaintiff. Finally, it is pleaded that the defendants are unauthorized occupants / trespassers liable to pay the sum of Rs.20,000/- and occupation charges / mesne profits from 19.05.2012 till the handing over the possession of the suit property and the plaintiff is also entitled to the possession. Hence, the present suit.
3. The defendant no.1 and 2 filed their WS on 15.04.2013 and remaining defendants filed their WS on 18.12.2014.
3.1 Vide WS, the suit of the plaintiff is preliminary objected on the ground that the suit of the plaintiff is lacking cause of action and the defendants No.3 & 4 are entitled to the declaration for cancellation of GPA dt. 22.12.2010 executed by Sh. Ram Swaroop in favour of the plaintiff and the defendants No.3 & 4 are also entitled for permanent injunction against plaintiff thereby restraining her from dispossessing the defendant No. 3 and 4 from suit propert.
3.2 On merits, it is stated that the plaintiff had not been residing at Q5/8, Mangol Puri the time of alleged execution of irrevocable power of attorney in respect of the suit property but she was residing at first floor of the property with her husband as her husband was inducted as Page 4 tenant by the deceased Sh. Ram Swaroop and the defendants No.1 & 2 are the wives of the real brothers of and legal heirs of late Ram Swaroop i.e defendant No. 4 and 3 respectively. The plot bearing No.Q-8/2, JJ Colony, ,Mangolpuri, Delhi is stated to be allotted to late Sh. Ram Swaroop by DDA under the Rehabilitation Scheme vide Receipt No.9884 dt. 22.05.1976 on which he had constructed ground floor and first floor. Sohan Lal i.e. defendant no. 3 was residing with Sh. Ram Swaroop since Ram Swaroop was handicapped / disable and as per this scheme, the house/plot cannot be sold or kept under lien, mortgage etc. It is also submitted that late Sh. Ram Swaroop was doing the business of plastic Kabari in village Mundka since long and he had Sh. Jagdish, husband of the plaintiff as his servant-cum-driver and also rented out his 1st floor to him on monthly rent of Rs.1,000/- per month and the rent was being collected by his wife late Sh. Vidhya Devi who died in the year 2001 and thereafter the death of his wife, late Sh. Ram Swaroop remained upset. Late Sh. Ram Swaroop during his life time has also executed an affidavit - cum - Will in the presence of all the family members, neighbours and aforesaid Sh. Jagdish (husband of plaintiff ) who was also one of witnesses, in July, 2011 thereby giving / bequeathing his properties in favour of his brothers namely Matadin (defendant no.4) and Sohan Lal (defendant No.3) as they had agreed to pay the debt of the deceased. On 05.05.2012 at about 7.30, Roshan, nephew of late Sh. Ram Swaroop went to his house as usual and both decided to got to Kotputli in noon. When at about 2.00 p.m., Roshan reached to the house of late Sh. Ram Swaroop, he saw that Sh. Ram Swaroop was unconscious and was held by Prabhu, Mamman and Tinku who were removing the gold Page 5 chain and ring of Sh. Ram Swaroop. On enquiry by Roshan, they told him that Sh. Ram Swaroop became unconscious all of sudden and they called Jagdish to take him to hospital and he was got admitted in Balaji Hospital where he expired on 18.05.2012. The aforesaid Sh. Jagdish, Mamman and Tinku have stolen gold ornaments of 10 tolas (100 gms), valuable articles, documents etc., of Sh. Ram Swaroop when he was in hospital. Later on, it was revealed to the defendants and their family members that Sh. Jagdish and his wife Smt. Mani Devi with oblique motive and to play fraud upon Sh. Ram Swaroop used to play various tactics with him. Even the plaintiff and her husband also manipulated a GPA in favour of the plaintiff qua the property in question. It is further submitted that plaintiff nor her husband even claimed any of their right, title and interest in the suit property during the life time of the deceased Sh. Ram Swaroop and after the death, the husband of the plaintiff started claiming himself the owner of the godown of Sh. Ram Swaroop and starting occupying the godown of the deceased despite knowing fully well that Sohan Lal is also the sleeping partner in the said business / assets. It is further stated that the plaintiff and her husband alongwith their associates started harassing and humiliating the defendants and their family members and also extending threats to them to forcibly dispossess the defendants from the suit property knowing well that the suit property belongs to brothers of deceased Ram Swaroop i.e., husband of the defendant No.1 and 2 as per his wishes as well as by way of succession and neither the plaintiff nor her husband Sh. Jagdish or any other person has any right, title and interest therein. The plaintiff and her husband failed to pay any rent and disconnected the supply of Page 6 electricity with malafide intention and to harass the defendants. That the plaintiff wants to grab the property of late Sh. Ram Swaroop under the pretext of forged documents. It is denied that the alleged GPA was executed.
3.3 It is stated that alleged GPA in favour of the plaintiff is nothing but a forged, fabricated and manipulated one which has been obtained from fraud or illegally and undue means. It also does not bear the thumb impression of the deceased Sh. Ram Swarrop and it does not confer right, title or interest in favour of the plaintiff. 3.4 Legal notice dt. 17.09.2012 issued by plaintiff is stated a counter blast to the complaints made by defendant No.3 and 4 against the plaintiff and her husband when the complaint was made to Deputy Commissioner of police, Pitumpura New Delhi on 13.08.2012 and 18.10.2012. In fact, it is stated that by way of present suit that the plaintiff wants to put undue pressure upon the defendants and their family members so they may not take any legal action for their ejectment from the portion of the property in their possession as well as to keep their possession over the suit property. Further the liability to pay the occupational charges/ damages is also denied.
In view of these pleas, suit of the plaintiff is prayed to be dismissed by defendants.
4. The plaintiff filed the replication to the written statement filed by the defendant No. 3 to 4 wherein it is denied that the suit of the plaintiff is false, fabricated or is in an abuse of the process of law or the plaintiff was not residing on the first floor of the property at the time of Execution of Page 7 documents. But it is stated that at the time of execution of documents, she was residing at the first floor of the suit property along with her husband as her husband was inducted as tenant by the deceased owner in 1999 and it was only before that, the plaintiff and her family members were residing at Q-8/5 Mangol Puri, Delhi and the plaintiff was having election identity card of the said address and the same was used as proof of residence in sub- registrar office at the time of execution of irrevocable general power of attorney as the plaintiff was not having any identity proof of residence of the suit property. It is also denied that defendant No.3 and 4 are the legal heirs of deceased Ram Swaroop or anybody was ever residing with him or his wife till the death or the husband of plaintiff was servant or driver of deceased or the rent of first floor was ₹ 1000 or the rent was collected by the wife of the deceased or he executed an affidavit cum will in the presence of all the family members, neighbours and husband of plaintiff in July 2011. Further incident dated 5.5.2012 alleged by the defendants is denied but it is admitted that husband of the plaintiff got the deceased admitted into the hostpital since he suffered from paralytic attack. It is denied that plaintiff and her husband intend to grab the entire properties of deceased. Further all the facts stated in the plaint are reiterated and suit of the plaintiff is prayed to be allowed.
5. On 12.1.2015, defendant No. 3 and 4 filed a counterclaim which was taken on record and vide this counterclaim, it is prayed that:
(a) GPA dated 22.12.2010, purported to be executed by deceased in favour of the plaintiff be declared as forged, fabricated, fraudulent, illegal and null and void document.
(b) the plaintiff be restrained from claiming the ownership in respect of the property bearing no. Q8/2, Mangol Puri, Delhi (hereinafter called Page 8 as the entire property) and to restrain from dispossessing the defendants from the entire property in any manner.
By this counterclaim, it is stated that the counterclaim/ defendant No. 3 and 4 have inherited the suit property from their brother who was handicapped further all the facts are stated in the written statement by the defendant No. 3 and 4 are again reproduced.
6. The plaintiff filed a written statement to the counterclaim filed by defendant No. 3 and 4 wherein she has objected the counterclaim on the ground that the counterclaim has not been properly valued and requisite court fees thereupon has not been filed. Further the other averments made in the counterclaim are denied in totality and the facts as stated by the plaintiff in her plaint and rejoinder to the written statement filed by the counterclaimants as defendants are re-asserted and counterclaim is prayed to be dismissed.
7. Following issues were framed on 08.09.2015 by Ld. Predecessor of this Court:
Issue No.1. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP.
Issue No.2. Whether the plaintiff is entitled to the decree of possession of the suit property as prayed for ? OPP.
Issue No.3. Whether the plaintiff is entitled to the decree of damages as prayed for? OPP.
Issue No.4. Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action ? OPD.
Page 9 Issue No.5. Whether the defendants No.3 & 4 are entitled to the declaration for cancellation of GPA dt. 22.12.2012 alleged executed by late Sh.Ram Swaroop in favour of plaintiff ? OPD 3 and 4.
Issue No.6. Whether defendants No.3 & 4 are entitled to the decree of permanent injunction for restraining the plaintiff from dispossessing the defendants No.3 & 4 from the suit property bearing No.Q-8/2, Mangolpuri, Delhi? ODP 3 & 4.
Issue No.7. Whether the counterclaim filed by the defendants No.3 & 4 is not properly valued and requisite court fee thereupon has not been filed? OPP.
Issue No.8. Relief
7. The plaintiff appeared as PW-1 as witness in the witness box and examined following as witnesses:
(a) Sh. Ram Singh S/o Late Sh. Gadshi Ram as PW-2
(b) Sh. Babu Lal S/o Late Sh. Gisa Ram as PW-3 (C) Sh. Jagdish Prashad as PW-4
(d) Sh. Mohar Singh S/o Late Sh. Dhan Sing as PW-5
(e) Sh. Yogender Singh, Data Entry Operator, Sub- Registrar VI-C, Rohini, Delhi as PW-6
(f) Sh. Anirudh Kumar Sinha, Assistant Manager, Connection Management Group, TPDDL, Laurance Road, Keshev Puram, New Delhi, as PW-7.
These witnesses relied upon the following documents:
1. The copy of irrevocable Power of Attorney against consideration of Rs.2,65,000/- having right thumb impression of the deponent at point A and LTI of late Sh. Ram Swaroop at point B on each page is Ex.PW1/1 (OSR).
2. The copy of voter ID Card as Ex.PW1/2 (OSR).
3. The copy of electricity bill dt. 03.05.2012 issued by NDPL as Ex.PW1/3 (OSR).
4. The copy of water bill dt. 03.05.2012 issued by Delhi Jal Board as Ex.PW1/4 (OSR).
Page 10
5. Photocopy of the ration card of the deponent and her family members of the same address as Mark A.
6. Copy of death certificate of Sh. Ram Swaroop as Mark B.
7. Copy of the police complaint made in the concerned police Station vide DD No.40 - B at 3.40 on 29.07.2012 as Ex.PW1/5 (OSR).
8. Copy of another complaint to DCP as per Diary No.1793 on 13.08.2012 as Ex.PW1/6 (OSR).
9. Copy of legal notice as Ex.PW1/7.
10. Reply of legal notice dt. 17.09.2012 sent by Guddi W/o Sh. Sohan Lal through her counsel as Ex.PW1/8.
11. Copy of duplicate of the original possession slip No.9884 dt.
22.05.1976 issued by DDA to deponent as Ex.PW1/9 (OSR).
12. Affidavit dt. 22.06.1977 having thumb impression of Sh. Ram Swaroop at point A and B as Ex.PW1/10.
13. Two original photographs of the stone placed on the said construction of a room with viranda in a school of Village Rasgan, Distt. Alwar, Rajasthan as Ex.PW1/11 (colly).
14. One original electricity bill dt. 13.03.2014 as Ex.PW1/12.
15. One original water bill dt. 20.03.2014 issued by Delh Jal Board as Ex.PW1/13.
16. Original electricity record / attribute change letter pertaining to CA No.60014314136 and bearing old K. No.42104166641 in the name of Smt. Mani Devi as Ex.PW7/1 (running into nine pages) (OSR).
17. Original NOC issued by Sh. Ram Swaroop in favour of Smt. Mani Devi W/o Sh. Jagidish dt. 17.09.2011 as Ex.PW7/2 (OSR).
8. Sh. Sohan Lal S/o Late Sh. Budha Ram appeared in the witness box as DW-1/3 and tendered his evidence by way of affidavit as Ex.DW1/3/A. He relied upon the documents :
1. Death certificate of late Sh. Ram Swaroop as Mark B.
2. The complaints made to DCP, PS Pitampura, Delhi and Commission of Police by deponent and his brother Matadin as Mark A & Mark C. Page 11 Smt. Guddi W/o Sh. Sohan Lal appeared in the witness box as DW-2 and tendered her evidence by way of affidavit as Ex.DW2/A. She relied upon the same documents.
Sh. Suresh Kumar, UDC, DUSIB, Jawala Puri, Nangloi, Delhi appearing as DW3 was summoned and he produced Possession slip dt. 22.05.1976 and demolition slip dt. 23.05.1976 as Ex.DW3/1 (OSR) & Ex.DW3/2 (OSR) respectively.
9. Final arguments heard. Record is perused.
10. Now, this court proceeds to give issue wise findings which are as under:
Issue No.1.
Whether the plaintiff is entitled to decree of declaration as prayed for?
OPP.
Issue No.2.
Whether the plaintiff is entitled to the decree of possession of the suit property as prayed for ? OPP.
Issue No.4.
Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action?OPD.
AND Issue No.5.
Whether the defendants No.3 & 4 are entitled to the declaration for cancellation of GPA dt. 22.12.2012 alleged executed by late Sh. Ram Swaroop in favour of plaintiff ? OPD 3 and 4.
Page 12
11.1 These four issues are taken together since these issues are interdependent.
11.2 The plaintiff is claiming the ownership in respect of the suit property on the basis of GPA dated 22.12.2010 stated to be executed by deceased in her favour whereas defendant No.3 and 4 have stated that this GPA is forged, fabricated and manipulated one and has been made up by fraud or illegally and undue means and it does not confer any right, title or interest in favour of the plaintiff.
11.3 The plaintiff produced the original GPA as Exb PW1/1 and stated that it bears her thumb impression at point A whereas thumb impression of deceased at point B. PW3 Babulal also deposed that deceased put his thumb impression at point B in his presence and plaintiff also put her thumb impression at point A on the GPA and he along with one Jagdish Prasad had been the witness to this GPA. Similar facts were deposed by Jagdish Prasad while appearing as PW4. These witnesses and PW5 have also deposed that even after purchasing the property, Jagdish Prasad and his wife allowed Sh Ram swaroop to reside at the ground floor room on humanitarian ground as he was handicapped and had very good relations with the plaintiff and her husband. These witnesses have been cross- examined at length but no question is put to these witnesses to suggest that the thumb impression at point B in GPA is not of deceased. The defendants have also not led any evidence to prove that GPA is not bearing the thumb impression of deceased. Thus, the possibility of this GPA being forged being not bearing thumb impression of Sh Ramswaroop does not exist at all.
Page 13 11.4 But GPA is submitted to be not genuine and following contentions are made on behalf of the defendants:
a. PW1 stated that deceased never gave her the document of slum/ DDA.
She has also denied that she had not seen the document exhibit PW 1/9 though the same was produced by her and she had admitted that she was not having the sum of Rs 2.65 lakhs in her bank account in the stated year of purchase. PW1 plaintiff has admitted that she was residing on the floor above the suit property even before the date of exection of GPA but she is not recorded as residing there in GPA. So the witness is not truthful and it is doubtful if GPA was executed as stated by plaintiff.
b. The property was allotted to Sh Ram Swaroop on the basis of license fee and it cannot be transferred, alienated or sold to any person without the permission of the concerned authority. c. PW4 Jagdish Prasad is the husband of the plaintiff and he also stated in the cross-examination that he does not know the date and year of the allotment of the property to Ramswaroop and he also does not know whether he ever went to DDA and Ramswaroop did not disclose anything regarding allotment of the property to a property though no reasonable man could be assumed to have purchased the property without knowing its antecedents. Further stress is laid down that it is also admitted by even this witness that the amount of rupees 2.65 lakhs which is the consideration amount was not available either in his account or in account of his wife.
11.5 Before dealing with the contentions of ld Counsel of the defendants, it is important to refer the judgement of Hon'ble High Court of Delhi as passed in Page 14 Ramesh Chand vs Suresh Chand 2012 (188) DLT 538 wherein while analyzing the evidence, it was observed that:
"7. In my opinion, the respondent No.1/plaintiff has validly proved that the right in the suit property was transferred in his favour by means of the documents dated 16.5.1996. The witnesses to these documents deposed in favour of the respondent No.1/plaintiff and supported the execution of the documents. Learned counsel for the appellant sought to argue that there were inconsistencies in the statement of the attesting witnesses because Sh. Munir Ahmed (PW-3) stated that he did not know whether Sh. Kundan Lal used to put thumb impression or signatures and Sh. Shri Ram (PW-4) talked of a sale deed whereas the documents in question do not show existence of a sale deed. Learned counsel for the appellant also argued that the brother Ram Swaroop (PW-2) stated that the property bearing no.290 Ambedkar Basti was given in gift and not in sale and thus there was contradiction in the statement of PW-2 because the suit property was not gifted but sold.
8. I do not find any substance whatsoever in the arguments of the learned counsel for the appellant. A civil case is decided on balance of probabilities. In every case, there may appear inconsistencies in the depositions of witnesses however, the depositions have to be taken as a whole. Minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective along with the other evidences, including documentary evidence which is led in the case. Assuming that a witness is not stating correctly in some places does not mean that he is to be held lying generally and hence an unreliable witness. This is so because it has been repeatedly said by the Supreme Court that the doctrine Falsus in Uno, Falsus in Omnibus does not apply in India. The inconsistencies which are pointed out by learned counsel for the appellant do not in any manner, whittle down the effect of the documents dated 16.5.1996, and which established that, the respondent No.1/plaintiff paid consideration of Rs.1,40,000/- to his father for purchase of the property."
11.6 Now keeping above in mind, this Court proceeds to analyse evidence brought on record. The allotment made in favour of the deceased Ramswaroop was qua the property measuring only 19 m². It has also come Page 15 in evidence that deceased Ramswaroop was 3 or 4 class passed. He was a handicapped. The plaintiff has also been a housewife. The plaintiff and her husband have been residing at the first floor of the suit property before the stated purchase of the same. As per the case of the defendant, the rent of the premises was only ₹ 1000. This fact is also admitted by Sh Jagdish Prasad appearing into the witness box. The deceased and the husband of the plaintiff are also found to be carrying only a small business of Kabari shop. The plaintiff is also found to be only putting the thumb impression on the documents. Thus considering the financial and social status of the deceased Ramswaroop and the plaintiff and her husband, this Court is of the view that the vigilance of an educated person also having also knowledge of law, should not be expected from them. Such parties are also likely not to distinguish between the Court and the registrar. They may also not be aware about the legal terms of the documents prepared. Plaintiff has truthfully clarified the circumstances in which the address of the first floor of the property of Sh Ramswaroop could not be got recorded in GPA in the replication. So this Court is of the view that these are the minor contradictions and consistencies which are pointed by the Ld Counsel for defendants and same are natural and the witnesses cannot be said/held as untruthful or lacking worth to credit. The general power of attorney Exb PW1/1 is a registered document. PW3 Babulal supported the plaintiff on material facts. He was one of the attesting witnesses to the general power of attorney PW1/1. He has answered the questions put to him during cross examination unhesitatingly and flawlessly. He stated that when he went with Sh Ramswaroop for execution of GPA, he was having the allotment slip of plot and also his election Identity Card and plaintiff was carrying her election I Card and deceased Ramswaroop put his thumb impression in the Page 16 presence of registrar in his office and all the witnesses as well as plaintiff also put her thumb impression inside the office of the registrar in the presence of registrar, though this witness has also stated that they also put their signatures, it cannot be ignored that this question was being asked after the lapse of about eight years where such contradictions are natural. Not only this, when a document is registered, such questions and answers given are of no consequence being matter of record. It is specifically stated in GPA Exb PW1/1 that consideration amount i.e. the sum of rupees 2.65 lakhs has already been paid to executant for the execution of this GPA and the receipt of this sum was also acknowledged by Late Sh Ramswaroop before the sub-registrar. As per Section 114 of Indian Evidence Act, official acts are presumed to be duly performed. GPA is also bearing photographs of the parties and witnesses, therefore suggestion as put to the witnesses during the cross-examination that after the death of Sh Ramswaroop, PW4 Jagdish procured the forged documents of the suit property in order to grab the same unlawfully and illegally, holds no merits.
11.7 All the witnesses produced by the plaintiff deposed consistently and in consonance with the plaint that the property was sold by the deceased vide GPA. On the contrary, defendants are found to be changing their stand constantly. In their written statement, it is pleaded by them that GPA is forged, fabricated and manipulated and during his lifetime, Sh Ramswaroop executed an affidavit cum will in the presence of all family members, neighbours and husband of the plaintiff in July 2011 thereby bequeathing his properties in favour of defendant No. 3 and 4. But at no place in the written statement or counterclaim, it is stated why the GPA is stated as forged, though as per Order VII CPC, the particulars of averments of fraud Page 17 should be explained in the pleading by a party. It is also not stated in the written statement or counterclaim that deceased Sh Ram Swaroop used to sign and he used not to put his thumb impression. It is only during evidence, it is presented that he used to sign but no document is produced on record from which it could be inferred that Sh Ram Swaroop used to sign though the suggestion was given during cross examination to PW4 as if Ramswaroop also had a bank account from where the signatures of deceased could have been obtained and produced before this court to cast doubt as to the new execution of GPA. Further, no will is produced by the defendants and demolishing the case of the defendants, the defendant No. 3 appearing in to the witness box as DW1/3 admitted during cross- examination dated 02.08.2019 that Sh Ram Swaroop had never executed any will including the suit property. The pleadings of the defendants are silent to the fact that defendant No. 3 had been residing with Sh Ram swaroop in the suit property but the copy of the Ration card from suit property wherein the name of the defendant No. 3 was also shown with the name of the deceased and his wife is placed on record and the defendant No. 3 appearing as witness also relied upon complaint given by him to DCP, Outer District on 13.08.2012 in which it is a stated that defendant No. 3 has been residing in the suit property since 1976. Quite contrary to this, as a witness, defendant No.3 stated during cross examination on 02.08.2019 that he has been residing for last about 35 years at house No. 103Q6, Mongol Puri, Delhi with his brother, bhabhi and wife whereas deceased stayed there only till the he was allotted the property. It proves that defendants have been taking a defence since the beginning which was not existing at all.
Page 18 Hence, it is held that GPA is proved neither forged nor fabricated nor false as pleaded by defendants but it is proved by preponderance of probabilities that Ramswaroop had executed General power of attorney in favour of the plaintiff for the consideration of the sum of Rs.2.65 Lacs.
12.1 Now the question arises if the plaintiff could be said to be the owner of suit property on the basis of general of power of attorney registered in her favour being executed by Late Sh Ramswaroop during his lifetime. In this regard, provision of section 202 of The Contract Act 1872 is important. Section 202 of the Contract Act, 1872 provides that the Power of Attorney coupled with interest is irrevocable and the same cannot be revoked/terminated even upon the death of the principal. Section 202 of the Contract Act is reproduced hereunder as:-
"SECTION 202. Termination of agency where agent has an interest in subject-matter:-
Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority, nor it is terminated by his insanity or death."
Thus, in view of this provision, a general power of attorney conferring an interest in favour of the power of attorney holder is irrevocable unless the Page 19 same is expressly agreed and it cannot be revoked even after the death of the executant.
12.2. There is a recital existing in general power of attorney that the sum of Rupees 2,65,000/- has already been paid by the plaintiff and the executant also acknowedged the receipt of this amount from agent i.e. plaintiff to the registrar. It also says that the possession of the entire property including the suit property has been given to the plaintiff. When questions were put to the plaintiff, she stated truthfully that she was not having ₹ 2.65 lakhs in bank account in the year 2010 but she arranged this amount from her relatives and she also specified the names of two such relatives i.e. Suresh and Babulal. This Babulal appeared into the witness box as PW3 but no question is put to him to falsify the statement of the plaintiff. PW4 Jagdish Prasad who is the husband of the plaintiff had also deposed in his affidavit that Ramswaroop had utilised the consideration money received from the plaintiff for construction of a room with varanda in a school of village Rasgan, District Alwar, Rajasthan and he also produced two photographs of the stone placed on the said construction and of the construction as Exb PW1/11 (colly). This deposition remains unrebutted by the defendants. It is the case of the defendants as inferred from the suggestion put on behalf of the defendants to PW4 that Ramswaroop had a bank account but none of the record was produced before the Court to suggest that the sum of rupees 2.65 lakhs as stated by the plaintiff to have been paid as consideration, could not have been paid by him since this sum was never deposited or found into the accounts of Ramswaroop at or about the stated time of execution of GPA and that he spent the money for the construction of the school which could not be the consideration amount as stated to be paid by Page 20 the plaintiff. Hence the payment of Rs 2.65 Lacs as a consideration for the execution of GPA is proved.
12.3 Sh Anirudh Kumar Sinha from TPDDL appeared as PW7 and he has also produced the attributes change letter pertaining to the meter already existing for the entire property in the name of Ramswaroop and no objection certificate as issued by Ramswaroop in favour of the plaintiff as Exb PW7/1 and Exb PW7/2. These are dated 09.10.2011 and 17.09.2011 respectively. Hence Exb PW7/2 was found prepared after about one year of the date of execution of general power of attorney executed by Ram Swaroop in favour of the plaintiffs. This NOC is again bearing the thumb impression of deponent Ramswaroop and it is also stating that Ramswaroop has sold the property to Mani Devi i.e. the plaintiff. This attribute change letter Exb PW7/1 is also found bearing endorsement suggesting that the physical possession was also verified and similarly documents were also verified by the concerned person of TPDDL. Acknowledgment by Sh Ramswaroop in NOC to the effect that he has sold the property to the plaintiff speaks itself that the execution of GPA in favour of the plaintiff was a conscious decision and act of Sh Ramswaroop and it was not the result of any fraud as pleaded by the defendants. Here it is also noteworthy that during cross examination dated 18.09.2018, the husband of the plaintiff appearing as PW4 also produced a document Mark P4 which reads that Jagdish Prasad informed to the respectable persons of the gali No.8 that he has purchased the property from Ram Swaroop but since he has no child and he is an handicapped, he will live in the property till his death. It is dated 22.12.2010 i.e. only after two days of the date of the purchase. This document was bearing signatures of about six persons stated to be residing in Q Block of gali No. 8 i.e. adjacent Page 21 to the property. This document is also not rebutted by the defendants at any point of time. Thus considering the due execution of general power of attorney by Ramswaroop in favour of the plaintiff, specific recital existing therein that the consideration amount has been received by Ramswaroop and the possession of the property has been handed over and the same has been received by the plaintiff, specific averment existing in NOC regarding the sale of the property by Ramswaroop to the plaintiff and the consistent deposition of all the witnesses to the effect that Ramswaroop was allowed to live in the suit property by the plaintiff despite having purchased the same, it is proved that interest was created in the suit property by Sh Ramswaroop by execution of GPA in favour of the plaintiff. And futher the plaintiff who was holding a possession of first floor of the entire property in the capacity of the tenant till the date of the general power of attorney, continued to hold with the possession of that part alongwith the possession of the suit property as received by her on being handed over by the executant Ramswaroop towards the part performance of the contract of sale, terms of which could be inferred from general power of attorney which is granting all the authorities to the plaintiff in respect of the entire property, which should be with a purchaser of the immovable property.
12.4 The right of the person having the possession of the immovable property as a part performance of the agreement to sell has clearly been stated in section 53A of The Transfer of Property Act which reads as under:
53A. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance Page 22 of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
The right of the transferee under the agreement have also been elaborated in various judgments. In Padmalabha Panda vs Appalanarasamma And Ors. AIR 1952 Ori 143, Hon'ble High Court has specifically observed that "The section, in debarring the transferor from "enforcing any right to property" against the transferee, does not aim at any act of the transferor out of Court, such as, taking forcible possession of the land. If that were the intention of the section the Legislature should clothe the commission of violation of the Statute with a legal sanction. The word 'enforcing', in its context, means "enforcing in Court by a suit or proceeding.'' In this view, the section enacts a rule of estoppel against the transferor debarring him from enforcing any right in respect of the property against a transferee in disregard of the contract by which he is bound. To accede to the contention, advanced would amount to extend the rule of equity against the imperative provisions of a Statute. It is not enacted to relieve a transferee of the onerous compliance of the terms of a Statute in order to complete his title but to prevent the transferor from taking advantage of his own default or latches, which would encourage fraud. It is a well-known rule of law that no Page 23 one should be allowed to profit by his own wrong. The transferor is in the wrong or in default in not carrying the contract into its ultimate end by registering the deed and the section, under construction, lays down that he shall not be allowed to rely on his own wrong to enforce right in respect of property, the subject- matter of contract. As a rule of equity, it is subject to several limitations of which one is "equity follows the law". Story on Equity, (3rd Eng. Edn.) p. 34:
"Where a rule either of the common or the statute law is direct and governs the case with all its circumstances on the particular point a Court of Equity is as much bound by it as a Court of Law and can as little justify a departure from it."
7. In the case of 'PROBODH KUMAR, v. DANTMARA TEA CO.
LTD.', 66 Ind App 293, a case in which the plaintiff based his suit on the doctrine of part performance as enacted in Section 53ATransfer of Property Act, -- it was contended:
"that notwithstanding that they had not chosen to sue for specific performance of the contract of October 10, 1931, and notwithstanding that they had taken no steps to complete their titles they were nevertheless entitled under Section 53A actively to assert the rights of a proprietor in virtue of the contract of October 10, 1931 and their possession."
Their Lordships held:
"In their Lordships' opinion the amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter, J., in the High Court that the right conferred by Section 53A is a right available only to the defendant to protect his possession. They note that this was also a view of their late distinguished collegue, Sir Dinshaw Mulla, as stated in the second edition of his treatise on the Transfer of Property Act at p. 262. The section is so framed as to impose a statutory bar on the transferor; it confers no active Page 24 title on the transferee. Indeed any other reading of it would make a serious inroad on the whole scheme of the Transfer of of Property Act."
8. It is necessary to state here the frame of the suit in order to show whether it was an action of a defensive nature. I shall quote a passage from their Lordships' judgment, in this connexion which is at pages 296-97 :
"It is in these circumstances that the plaintiffs brought the present suit in which they seek to have it declared that the Dantmara Tea Company, Limited, and others have no right or title to the estate, and are debarred from enforcing any right to the estate, including the right to sell tea under the export quota allotted to it, or to transfer the quota rights to any person. They also seek an injunction."
9. It appears quite plain from the above extracts that the point was raised directly at their Lordships' Bar and was negatived by their Lordships' enunciation of law, as stated above.
10. In the case of 'MADHUBAN GANDA V. BASANT KHETRI', AIR (34) 1947 Pat 424, the decision to which I was a party, it was held:
"The provisions of Section 53A do not confer any title on the transferee. They can be used only in defence, and not for attack, and, moreover, they can be used in defence only against the transferor on any other person claiming under him. Thus, where in a suit for declaration of title to and recovery of possession over certain lands comprising an occupancy holding the plaintiffs are persons claiming under the transferor as his heirs, the provisions of Section 53A can be set up in defence against them, and though the part performance may have created no title in the transferee the plaintiffs can enforce no right in respect of the property on the ground of lack of registration. The equitable basis of the doctrine is that having sold the property to the transferee, having put him in possession, then even if the transfer is void the transferor in Page 25 interests of the prevention of fraud will not be heard to say so and neither will any one claiming under him."
Thus in view of this and the admitted case of the plaintiff that no sale deed has been executed in respect of the suit property in her favour, it is held proved that since sale transaction has not been concluded, the plaintiff cannot be declared as the owner of the suit property but having the possession of the property in part performance of the agreement to sell as inferred from the general power of attorney and considering the conduct of the parties, the plaintiff is entitled to recover the possession of the suit property from the defendants who continued to retain the possession of the suit property even after the death of Ramswaroop. Consequently, the entire suit of the plaintiff is not liable to be dismissed for want of cause of action.
13. Now the last limb of contention to be dealt is whether the suit property could not be transferred without the permission of the competent authority.in this regard, the deposition of DW3 Sh Suresh Kumar UDC from DUSIB, Jwala Puri is extremely relevant. This witness deposed that the suit property canbe sold after being converted to free hold and he further specified that Ram Swaroop could not have got the property converted to freehold but a buyer from him can get the property freehold. It proves that property is alienable but to get it converted into freehold is one of the pre-requisite for sale. In case in hand, the sale transaction has not been concluded and it is only irrevocable GPA has been executed so GPA remains unaffected due to non-conversion into freehold till time and GPA still holds good and valid.
Hence it is held that Defendant No. 3 and 4 are not entitled for declaration as sought and issue No. 5 is decided against the defendant No 3 and 4 and Page 26 similarly plaintiff is held not entitled for the decree of declaration and issue No.1 is decided against the plaintiff but the plaintiff is held entitled for the decree of the possession of the suit property and accordingly issue No2 is decided in favour of the plaintiff and issue no 4 is partly decided in favour of the defendant.
Issue No.3 Whether the plaintiff is entitled to the decree of damages as prayed for? OPP
14. The onus to prove this issue lies upon the plaintiff.
14.1 Since while giving findings on issue no 2, this Court has held that the plaintiff is entitled for recovery of possession of the suit property against the defendants, the plaintiff is held entitled for the damages from the date of receipt of legal notice by the defendants. Defendants have denied the service of legal notice upon them but they have led no evidence to prove that the reply to this notice Exb PW1/8 was not sent by defendant Guddi. It proves the service of legal notice upon the defendants by post and since there is no document on record from which the date of service could be inferred, the service is deemed to have been effected upon the defendant No.1 and 2 and the remaining defendants through them on 25.09.2012 taking the note of the time taken for article to be delivered by registered post ordinarily.
What should be the quantum of damages?
14.2 The plaintiff has claimed damages at the rate of Rs 20,000/- per month but no evidence is led to prove that the plaintiff was incurring loss to the tune of Page 27 claimed rate due to unauthorized occupation of suit property by the defendants. It is also not proved that it is the prevalent rate of rent of equivalent property in the area. It is not explained what factors have been considered to claim such rate of damages. On the other hand, it is a admitted by the plaintiff that for the first floor builtup upon the suit property, the rent payable by plaintiff before getting GPA executed, was ₹ 1000 per month. Therefore considering the location of the suit property at the ground floor and the natural increase in the value of the immoveable property and consequently the rental value, it would be appropriate that the damages at the rate of ₹ 1500 per month be paid by the defendants jointly and severally to the plaintiff from the date of the service of the legal notice i.e. 25th of September 2012 till the date of handing over of the possession of this suit property by the defendants to be plaintiff.
Hence, this is decided accordingly.
Issue No. 6Whether defendants No.3 & 4 are entitled to the decree of permanent injunction for restraining the plaintiff from dispossessing the defendants No.3 & 4 from the suit property bearing No.Q-8/2, Mangolpuri, Deli ? OPD 3 & 4.
15. The onus to prove this issue lies upon the defendant No. 3 and 4.
Since the issue No.5 has been decided against the defendant No. 3 and 4 and issue No. 2 has also been decided in favour of the plaintiff, defendant No. 3 and 4 are held not entitled for the permanent injunctions. Consequently, this issue is also decided against the defendant no. 3 and 4 and in favour of the plaintiff.
Page 28 Issue No.7.
Whether the counterclaim filed by the defendants No.3 & 4 is not properly valued and requisite court fee thereupon has not been filed ?
OPP.
16. The onus to prove this issue lies upon the plaintiff but neither any evidence is produce on record to prove the facts relevant nor arguments are advanced on behalf of the plaintiffs qua this issue. Hence this issue is decided in favour of the defendants and against the plaintiff being not proved.
RELIEF:
In view of the findings of the issues involved in the present suit and counterclaim, the counterclaim filed by the defendant No. 3 and 4 is hereby dismissed but he suit of the plaintiff is hereby allowed with costs to the extent that :
(1) A decree of possession of the suit property i.e. the ground floor of the property known as Q-8/2 Mangolpuri, Delhi- 110083 area measuring 19 sq meter, is granted in favour of the plainitiff against the defendants.
(2) The plaintiff is also granted damages/mesne profit at the rate of ₹ 1500 per month to be paid by the defendants jointly and severally to the plaintiff from the date of the service of the legal notice i.e. 25th of September 2012 till the date of handing over of the possession of above-stated suit property.
Let the appropriate Court fees on the damages/mesne profits be filed by the plaintiff.
Page 29 Thereafter, decree sheet be prepared and file be consigned to Record Room as per rules.
Announced in open court
on the 28th day, February 2020 (Aanchal)
JSCC/ASCJ/Gudn. Judge
North, Rohini Courts,
Delhi/28.02.2020 (R)
CS.No.535429/16
Mani Devi vs Sumitra and Others
28.02.2020
Present: None
Page 30
Vide separate judgment passed on date, the counterclaim filed by the defendant No. 3 and 4 is hereby dismissed but he suit of the plaintiff is hereby allowed with costs to the extent that :
(1) A decree of possession of the suit property i.e. the ground floor of the property known as Q-8/2 Mangolpuri, Delhi- 110083 area measuring 19 sq meter, is granted in favour of the plaintiff against the defendants.
(2) The plaintiff is also granted damages/mesne profit at the rate of ₹ 1500 per month to be paid by the defendants jointly and severally to the plaintiff from the date of the service of the legal notice i.e. 25th of September 2012 till the date of handing over of the possession of above-stated suit property.
Let the appropriate Court fees on the damages/mesne profits be filed by the plaintiff.
Thereafter, decree sheet be prepared and file be consigned to Record Room as per rules.
(Aanchal) JSCC/ASCJ/Gudn. Judge North, Rohini Courts, Delhi/28.02.2020 (R) Page 31