Delhi District Court
C.S. No.59599/16 vs Dilbagh Singh on 10 August, 2020
IN THE COURT OF SH. MANISH JAIN: CIVIL JUDGE
NORTH WEST: ROHINI COURTS: DELHI
C.S. No.59599/16
Ram Singh
S/o Sh. Shiv Deni Parsad
R/o House No. E-25, Sudershan Park
New Delhi-110015. .......... Plaintiff
vs
1. Dilbagh Singh
S/o Sh. Nihal Singh
R/o VPO Kari, Delhi-11004.
Also at: Shop No. 9, Flat QU-258-A
Pitampura, Delhi-110088
2. Dal Singar @ Devinder
S/o Sh. Shree Ram
R/o C-16, Satya Enclave
Prem Nagar III, Delhi-41
3. Ashok Singh
R/o H. No. 118, Block A
Gali No. 3, Hind Vihar
Prem Nagar III, Delhi ........ Defendants
SUIT FOR DECLARATION, RECOVERY OF POSSESSION,
PERMANENT AND MANDATORY INJUNCTION
Date of institution : 11.02.2010
Date of decision : 10.08.2020
Final Order : Dismissed
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JUDGMENT
BRIEF FACTS
1. Plaintiff claims to have purchased the plot no. 152/07, land measuring 25 ½ sq yards, out of Khasra No. 25/20, situated in Abadi known as Satya Enclave, Prem Nagar III, Delhi-41 (hereinafter "suit property") along with another plot measuring 50 yards bearing no. B-152/1 in the name of his wife Smt. Gyanti Devi from defendant no. 1 for a valuable consideration, vide usual GPA sales documents dated 18.03.1998. The plaintiff and his wife remained in possession of the above two plots since thereafter. The wife of plaintiff transferred her plot bearing no. B-152/1 in the name of their son on 10.09.2009 vide duly registered documents. It is stated that on 15.10.2009, plaintiff filed a suit bearing no. 869/09 seeking permanent injunction against defendant no. 1 qua the suit property which was disposed of by the Hon'ble court on 22.12.2009 upon statement of defendant no. 1 that he shall not interfere in the peaceful possession of the plaintiff over the suit property. It is further alleged that on 07.02.2010, when the plaintiff visited his other plot bearing no. 152/01, he came to know that defendant no. 2 was erecting a gate over the suit property and upon his inquiry, defendant no. 2 stated that he had purchased the same from defendant no. 3. A complaint with local police was duly lodged by the plaintiff in this regard. It is alleged that thereafter defendant no. 2 threatened to raise further construction and to create third party interest in the suit property. It is further stated that during pendency of the present suit, defendant no. 2 illegally and wrongfully installed the strong iron gates and raised construction in the vacant plot of the plaintiff. Aggrieved, the plaintiff has filed the present suit seeking permanent injunction thereby restraining defendant no. 2 from creating any third party interest in the suit property; _______________________________________________________________________ CS No. 59599/16 Page No. 2 of 13 declaration thereby declaring all the documents existing in favour of defendant no. 2 & 3 as null and void with consequential relief of possession and mandatory injunction thereby directing defendant no. 2 to remove the iron gates/ construction installed/ raised by him and also, to remove electricity connection which was installed by him on 23.02.2010 from the suit property.
2. Initially defendant no. 1 appeared in the court but later on due to his nonappearance, he was proceeded exparte vide order dtd. 05.02.2011.
3. Upon service of summons, defendant no. 2 & 3 marked their presence in the court and filed their written statement. In their defence, defendant no. 2 & 3 denied the contents of the plaint and based their own claim over the suit property stating that the same was purchased by defendant no. 2 from defendant no. 3 on 13.04.2009 vide documents executed on the same date. They referred to complete chain of erstwhile owners of the suit property from whom they derived their ownership. They raised objection that the plaintiff, in collusion with defendant no. 1, procured order dated 22.12.2009 in Suit no. 869/09 from the court of Sh. Prashant Kumar, Civil Judge, Rohini, Delhi and that neither the plaintiff nor defendant no. 1 were in possession of any part of the suit property at any point of time.
4. Replication was filed by the plaintiff denying the contents of the written statement and re-iterating the contents of the plaint.
ISSUES
5. Upon completion of pleadings, following issues were framed in the matter on 19.07.2012-
(i) Whether the plaintiff has not come to the court with clean _______________________________________________________________________ CS No. 59599/16 Page No. 3 of 13 hands? (OPD)
(ii) Whether the plaintiff is entitled to the relief of declaration as prayed for? (OPP)
(iii) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? (OPP)
(iv) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? (OPP)
(v) Whether the plaintiff is entitled to the decree of possession as prayed for? (OPP)
(vi) Relief.
TRIAL
6. In evidence, plaintiff examined himself as PW1 vide affidavit Ex.
PW1/A wherein he re-iterated the contents of the plaint and has relied upon the following documents:
(i) Ex.PW1/1 - original site plan;
(ii) Ex.PW1/2 - original GPA dated 18.03.1998;
(iii) Ex.PW1/3 - original agreement to sell dated 18.03.1998;
(iv) Ex.PW1/4 - original affidavit dated 18.03.1998;
(v) Ex.PW1/5 - original receipt dated 18.03.1998;
(vi) Mark PW-1/6 -copy of house tax receipt;
(vii) Mark-A - photocopy of GPA dated 18.03.1998 in favour of Smt. Gyanti Devi;
(viii) Mark-B - photocopy of agreement to sell dated 18.03.1998 in favour of Smt. Gyanti Devi;
(ix) Mark-C - photocopy of affidavit dated 18.03.1998 in favour of Smt. Gyanti Devi;
(x) Mark-D - receipt dated 18.03.1998 in favour of Smt. Gyanti Devi;
(xi) Mark-E - photocopy of GPA dated 10.09.2009;
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(xii) Mark-F - photocopy of agreement for gift dated 10.09.2009; (xiiii) Mark-G - photocopy of affidavit dated 10.09.2009;
(xiv) Mark-H - photocopy of possession letter dated 10.09.2009;
(xv) Mark-I - photocopy of WILL dated 10.09.2009;
(xvi) Mark-J - photocopy of complaint dated 13.10.2009; (xvii) Mark-K - photocopy of FIR no. 311/10 PS Vijay Vihar; (xviii) Ex.PW1/7 (colly) - certified copy of order dated 22.12.2009 by the court of Sh. Prashant Kumar, Ld. CCJ cum ARC, Rohini Courts, Delhi in Suit no. 869/09 along with statement of defendant no. 1 and plaintiff.
Plaintiff also examined Sh. Ajay Kumar Gond as PW-2 vide affidavit Ex. PW2/A & Sh. Hare Ram as PW-3 vide affidavit Ex. PW3/A. PW1, PW2 & PW3 were duly cross-examined on behalf of defendant no. 2 & 3. Defendant no. 1 remained exparte during trial.
No other witness was examined by the plaintiff and PE stood closed on 04.01.2018.
7. Defendant no. 2 examined himself as D-2W/1 vide affidavit Ex. D2W/X wherein he denied the contents of the plaint and reiterated the contents of his written statement. He relied upon the following documents:
(i) Ex. D-2W1/B - site plan;
(ii) Ex. D-2W1/A (colly)- title documents;
(iii) Ex. D-2W1/C - bill dated 16.06.2009;
(iv) Ex. D-2W1/D - bill dated 30.12.2009;
(v) Ex. D-2W1/E - sanction of electricity connection.
Defendant no. 2 also examined Sh. Anirudh Kumar Sinha as D-2W/2 who produced the electricity bill dated 18.12.2018 pertaining to CA no. _______________________________________________________________________ CS No. 59599/16 Page No. 5 of 13 60006388080, copy of GPA documents in favour of defendant no. 2 and copy of voter ID card of defendant no. 2. Same are Ex. D-2W/2A (colly, OSR). Defendant no. 2 also examined Sh. Ram Milan as DW2/W3 vide affidavit Ex.DW2/W3-1.
All the above defence witnesses examined by defendant no. 2 were duly cross examined on behalf of the plaintiff.
8. Defendant no. 3 examined himself as D-3W/1 vide affidavit Ex.
D3W/1/X. He relied upon Ex. D-3W1/A (colly) which are original title documents and Ex. D-3W1/B (colly).
D-3W/1 was duly cross examined on behalf of the plaintiff. No other witness was examined by the defendants and DE stood closed on 08.02.2019.
9. I have heard the arguments and the record has also been perused.
FINDINGS With respect to issue no. 2 and 5-
10. The onus of proving the present issues under Section 101 of Indian Evidence Act, 1872 is upon the plaintiff. The plaintiff claims to have title over the suit property and in order to substantiate his claim, the plaintiff has relied upon the title documents in his favour which are Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 and PW1/5. By way of this present suit, plaintiff is claiming the relief of declaration thereby declaring all the documents qua the suit property held by defendant no. 2 and 3 as null and void. The plantiff claims to have obtained the title of the suit property from defendant no. 1 and on the other hand, defendant no. 2 claims to have obtained the title to the suit property from defendant no. 3. The plaintiff has neither produced the previous chain of documents nor is _______________________________________________________________________ CS No. 59599/16 Page No. 6 of 13 aware of the erstwhile owner of the suit property i.e. the person from whom defendant no. 1 purchased the suit property. On the contrary, defendant no. 2 and 3 has produced the entire chain from where the title of the suit property is flowing.
11. It is a clear case wherein both the parties are claiming title to the property on the basis of certain documents executed in their favour and contending their rights in the property in contrast to each other. On the careful perusal of the pleadings and the evidence led by the parties, it can be readily inferred that one of the two contesting parties has not come to the court with clean hands or is a victim of fraud committed upon him. However, this court is not inclined to go beyond the scope of the issues involved in the suit in hand. The plaintiff inter-alia has sought the relief of declaration thereby declaring the documents qua suit property in favour of defendant no. 2 as null and void, however, no ground as to why such documents shall be declared null and void has been mentioned by the plaintiff in his pleadings or in his evidence. Merely because the plaintiff has certain documents executed in his favour vis-à-vis suit property, the documents executed vis-à-vis the same property in favour of some third person cannot be declared null and void.
12. In this context, the appropriate remedy would have been of filing the suit seeking a positive declaration as to his own title with respect to the suit property. In Section 34 of Specific Relief Act, 1963, the words used are 'entitled' and also that the court 'may make therein a declaration that he is so entitled'. Here the word 'entitled' clearly suggests that the plaintiff should seek declaration about his own entitlement to the legal character or right as to property. Similarly, the words 'he is so entitled' refers to the plaintiff and the declaration of the court also is in reference to the plaintiff's entitlement and hence it is clear that the plaintiff has to seek his own entitlement or _______________________________________________________________________ CS No. 59599/16 Page No. 7 of 13 disentitlement to a legal character or right as to property and not a declaration regarding any other person's entitlement or disentitlement. Apparently from the wordings of the section as discussed above, barring some exceptions, a negative declaration for a third person cannot be sought from the court. In the entire pleadings and the evidence led by the plaintiff, he is re-iterating his right over the suit property by virtue of his title documents and the circumstances under which he purchased the suit property from defendant no.
1. Nowhere in the entire trial, the plaintiff has disputed the correctness of the documents produced by defendant no. 2 and 3, around which the entire suit of the plaintiff revolves.
13. Moreover, the plaintiff claims his ownership over the suit property on the basis of GPA and allied documents executed in his favour by defendant no.
1. In this context, I am constrained to refer Suraj Lamps and Industries Pvt. Ltd. vs State of Haryana and Anr. (SLP (C) No. 13917 of 2009), the relevant portion of which is hereinbelow reproduced-
"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as _______________________________________________________________________ CS No. 59599/16 Page No. 8 of 13 contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
In the present case, both the parties are relying on GPA and allied documents and claiming title to the suit property. It is trite law that plaintiff has to stand on its own legs and prove its specific stand. He must prove its case before a decree _______________________________________________________________________ CS No. 59599/16 Page No. 9 of 13 can follow in his favour. However, where possession is sought by the plaintiff and both the parties have defective title, the suit being binding on parties inter- se, court shall look for the better title. In this context, this court is reproducing the findings of Apex Court in Swadesh Ranjan Sinha vs Haradeb Banerjee (1992 AIR 1590) hereunder-
"Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons'. (Salmond on Jurisprudence, 12th ed., Ch. 8, p. 246 et. seq.). There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
All that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The _______________________________________________________________________ CS No. 59599/16 Page No. 10 of 13 question, however, is whether he has a superior right or interest vis-a-vis the person challenging it."
The plaintiff claims to have purchased the suit property from defendant no. 1 on 18.03.1998 vide GPA sales documents Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5. Plaintiff has also proved the House Tax receipt Ex. PW1/6, however the same cannot be construed to be as a proof of possession. On the other hand, defendant no. 2 and 3 apart from proving the GPA sales documents in their favour which are Ex. D2W1/A (colly) and Ex. D3W1/A (colly), has also proved Ex. D2W1/E i.e. sanction of electricity connection and electricity bills dated 03.07.2010 and 18.12.2018 which are Ex. D2W/2/P1 and Ex. D2W/2A in the name of defendant no. 2. It clearly proves that the actual physical possession of the suit property is with defendant no. 2. Moreover, plaintiff himself has claimed in his plaint and in his evidence that the construction work has been done by defendant no. 2 in the suit property, which impliedly signifies that actual physical possession of the suit property vests with defendant no. 2. It was also argued by the plaintiff that the title documents relied upon by the defendant no. 2 and 3 are pertaining to the plot no. 151/3, which is different from the description of the suit property. In this regard, it is stated by the defendant no. 2 and 3 that 151/3 is the old number and the new number is B- 152/7 as stated by the plaintiff and the documents produced by them, though bears the old number, are with respect to suit property only. The submissions advanced by defendant no. 2 and 3 are corroborated by the electricity bills produced by defendant no. 2 and 3 which bears both the numbers i.e. old number as well as the new number.
14. Accordingly, the plaintiff is unable to satisfy the court that better title vests in him and further that he is entitled to declaratory decree sought for by _______________________________________________________________________ CS No. 59599/16 Page No. 11 of 13 him. The plaintiff has also sought for consequential relief of possession. Since the main relief of declaration has not been granted to the plaintiff, he is not entitled to any consequential relief of possession and thus, both the issues are decided in negative.
With respect to issue no. 3 and 4-
15. The onus of proving the present issues is upon the plaintiff. The plaintiff is seeking the reliefs of permanent and mandatory injunction with respect to suit property. Any relief sought by the plaintiff is based upon a particular cause of action around which the entire suit revolves. Cause of action is a bundle of facts i.e. existence of right in favour of the plaintiff and violation of the said right by the defendants. In order to obtain a decree of permanent or mandatory injunction with respect to the property, plaintiff needs to show certain right over the property and further needs to prove violation of such right by the defendant. Such a right can be any proprietary right i.e. ownership right or may be possessory right. As culled out from the above discussion, it is clear that the plaintiff is unable to prove any right with respect to the suit property vis-à-vis defendant no. 2 and 3 and therefore, is not entitled to any equitable relief of injunction as sought for by the plaintiff.
Accordingly, the present issues are also decided in negative.
With respect to issue no. 1-
16. The onus of proving the present issue lies upon the defendants.
Defendant no 2 and 3 have claimed in their written statement that the plaintiff has withhold and concealed the material facts and therefore, the suit shall be dismissed for such concealment. The reliefs of declaration and injunction as _______________________________________________________________________ CS No. 59599/16 Page No. 12 of 13 claimed by the plaintiff, are equitable reliefs and merely proving the ingredients of the respective provision does not entitle the plaintiff to such a relief. The court in cases of equitable reliefs hold double discretion and even if the respective ingredients of the provision are proved by the plaintiff, the court is within its right to deny such reliefs if principles of equity and justice warrants the same. If a party coming before the court is not appearing with clean hands, he is not entitled to any helping hand of the court. If a party withholds the material facts in order to obtain the decree in his favour, proving of such a concealment will entail dismissal of the suit.
In the case in hand, apart from bald averments, defendant no. 2 and 3 have not produced any witness or document on record which proves any concealment on the part of plaintiff.
Since the defendant no. 2 and 3 are unable to discharge their onus, the present issue is decided in negative.
CONCLUSION
17. In view of the above, suit of the plaintiff is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally
signed by
MANISH MANISH JAIN
Announced in open Court today. JAIN Date:
2020.08.17
15:37:22 -0100
(Manish Jain)
Civil Judge, North West
Rohini Courts, Delhi
10.08.2020
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