Delhi District Court
Dinesh Kumar vs Rajinder Prasad on 22 March, 2024
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-
CUM- ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
PRESIDED OVER BY: MS. MEDHA ARYA
Suit No.: CS SCJ/93820/2016
CNR No.: DLCT03-000016-1995
In the matter of:-
Dinesh Kumar
S/o Late Sh. Bindraban.
R/o D-540, Pul Prahladpur,
Badarpur, New Delhi-110044.
....Plaintiff
Versus
Rajinder Prasad
S/o Late Sh. Mani Ram,
R/o H. No. 1/123,
First Floor, Trilok Puri,
Delhi-110091.
.....Defendant
Date of Institution : 22.12.1995
Date of judgment when reserved : 21.02.2024
Date of judgment when announced : 22.03.2024
SUIT FOR DECLARATION, RECOVERY OF
POSSESSION AND DAMAGES
JUDGMENT:
1. The dispute in the subject suit revolves around the property bearing No.1/123 (Old No. 1/122), Trilok Puri, Delhi, CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 1/30 measuring about 25 square yards (hereinafter referred to as the 'suit property').
2. Dinesh Kumar/Plaintiff claims, inter-alia, declaration of ownership over the suit property. It is his case that he advanced a loan of Rs.1,00,000/- to Rajender/defendant, who approached him through their common friend Manoj Kumar. It was represented to plaintiff that defendant required the money to repay an earlier loan he had obtained from one Prem Singh, and part of payment of loan amount was made by plaintiff directly to said Prem Singh as well. Loan agreement dated 25.01.1995 was subsequently executed between the parties, encapsulating the condition that if defendant fails to repay the loan by 06.08.1995, plaintiff would become the owner of the suit property. It is also his case that on the said date, defendant executed conveyance documents qua the subject property in his favour i.e. notarized GPA, agreement to sell, receipt, affidavit etc. Plaint further records the averments of the plaintiff to the effect that post the agreement, he took over the possession of the ground floor of the suit property, and at his request, permitted defendant to reside on first and second floor thereof as his licensee. Besides the relief of declaration, plaintiff has also sought the relief of possession of first and second floors of suit property, and the relief of damages for unauthorized occupation by the defendant of Ist and 2 nd floor of the suit property as a trespasser @ Rs.1,200/- per month w.e.f. 06.08.1995 till the date of the filing of the suit, along with interest.
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 2/30
3. In the written statement, defendant took preliminary objections to maintainability of the suit viz, the suit is barred under Section 10 of Code of Civil Procedure, 1908 (hereinafter, the 'CPC') in view of the fact that the suit filed by him seeking permanent injunction against the plaintiff is still pending involving the same questions of law and facts, it is barred by virtue of Section 41 (h) of the Specific Relief Act ,1963 in view of the fact that plaintiff has sought declaration of title and possession on basis of notarized documents, when he ought to have filed a suit for specific performance.
4. On merits as well, the suit has been resisted. Defendant's version is that a loan transaction indeed took place between the parties, but directly and not through any Manoj Kumar and only for an amount of Rs. 65,000/-. Defendant has denied execution of any conveyance documents in favour of plaintiff, and has stated that plaintiff had obtained his signatures on certain blank sheets of paper when he advanced him the loan, and later misused the same by creating the alleged conveyance documents. Written Statement also records the averments of the defendant to the effect that no title to the suit property could have been conveyed by any notarized documents anyway. He has also denied ever handing over possession of any portion of suit property to the plaintiff. He specifically stated that in fact, he inducted one Ravinder as tenant in the ground floor thereof. It has been prayed that suit of plaintiff be dismissed.
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 3/30
5. Replication to the written statement was filed by the plaintiff. In the replication, the plaintiff has stated that he is the owner of the suit property by virtue of the conveyance documents executed in his favour by defendant. He has also stated that he is in possession of the ground floor of the suit property, which fact indicates that the defendant has already performed his obligation under the agreement to sell, as per which he became the owner of the entire property on account of failure of the defendant to repay the loan. It has been stated in the replication that the defendant has not let out the ground floor of the property to any Ravinder, and in fact the said Ravinder is occupying the ground floor of the property alongwith the plaintiff, being his close relative.
6. After pleadings were complete, the matter was listed for consideration on the application under Order 39 Rules 1 and 2 CPC. At that stage, at the prayer of the plaintiff, a local commissioner was appointed by the court, so as to ascertain exactly who is in possession of the ground floor of the suit property. Report came to be filed by the local commissioner, stating that it is the plaintiff who is in exclusive possession of the said portion of the suit property. Objections to the report were filed by the defendant. Vide order dated 08.01.1997, the said objections were allowed by the Ld. Predecessor of this Court, holding that whereas it is the case of the plaintiff himself that he is in possession of the ground floor of the property along with CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 4/30 one Ravinder, the LC has reported that it is the plaintiff who is in exclusive possession thereof. It was also held that the issue as to how and in what capacity the said Ravinder is in possession of the ground floor of the suit property requires adjudication upon evidence. The LC report was then set-aside.
7. It is also pertinent to mention here that another suit subsequently came to be filed by the plaintiff under Section 6 of the Specific Relief Act, 1963 on the ground that during the pendency of the instant proceedings, he was dispossessed from the ground floor of the suit property by the defendant herein, unlawfully and forcibly. By way of the said suit, the plaintiff has inter-alia, prayed that he may be put back in possession of the said ground floor of the suit property. Vide order dated 29.02.2000, the aforesaid two suits were clubbed together. Common issues were framed in the suits, and it was directed that evidence recorded in one suit would also be placed in the other file. Trial in the suits proceeded together, and today, vide separate judgment, the said suit has been decreed.
8. Be that as it may. For the adjudication of the controversies involved in the present suit, the following issues are pertinent:
(1) Whether the plaintiff does not disclose any cause of action and is liable to be dismissed under Order 7 CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 5/30 Rule 11 CPC? OPD.
(2) Whether the suit of the plaintiff is barred under Section 41 (h) of the Specific Relief Act? OPD. (3) Whether the plaintiff does not have any locus standi to file the present suit? OPD.
(4) Whether this Court does not have pecuniary jurisdiction to entertain the present suit? OPD. (5) Whether the suit of the plaintiff is barred under Section 10 CPC? OPD.
(6) Whether the suit as framed without claiming the Specific Performance of the contract is maintainable in the present form? OPP.
(7) Whether the plaintiff has valued its suit property for the purposes of Court Fees and jurisdiction and appropriate Court Fees has been affixed on it? OPP. (8) Whether the plaintiff has become owner of the suit premises by way of loan agreement? OPP.
(9) Whether the plaintiff is entitled to the relief of declaration? OPP.
(10) Whether the plaintiff is entitled to the relief of possession as claimed? OPP.
(11) Whether the plaintiff is entitled to claim the relief of damages, if so, at what rate and for what period? OPP.
(12) Relief.
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 6/30
EVIDENCE
9. Plaintiff examined Manoj Kumar, S/o Sh. Babu Ram as PW-1. Supporting the case of plaintiff, PW1 deposed that plaintiff advanced a loan of Rs. 1,00,000/- to defendant, out of which Rs.5,000/- in cash were paid directly to Mr. Prem Singh.
He testified that part of loan amount was advanced on 15.01.1995, and loan documents were executed between the parties on 25.01.1995, and at that time, a sum of Rs.20,000/- in cash was paid by the plaintiff to the defendant. He testified that he had witnessed the execution of loan agreement. He further testified that after going home, the defendant handed over the possession of ground floor of the suit property to the plaintiff, and sought some time to hand over the possession of the remaining floors of the property. He testified that after locking the ground floor of the suit property, all of them went back. He further testified that before the filing of the suit, he once went back to the property to find that one Vijender or Virender was staying in the house.
Cross examination of PW-1 Manoj Kumar was deferred on 22.04.1998. It is seen that the witness was never recalled for his cross examination. Later, via testimonies of other witnesses, it came on record that the said witness has expired.
10. One Kalyan Singh was examined by the plaintiff as PW-2. He testified that he had accompanied the defendant on CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 7/30 25.01.1995 for execution of loan transaction, first testifying that Rs. 80,000/- was to be sought by defendant, but later improving his testimony to say loan transaction had already taken place. He testified he witnessed the execution of loan agreement on documents purchased by defendant, and payment of Rs. 20,000/- to the latter by plaintiff. His examination was deferred at this stage.
PW-2 Kalyan Singh was recalled on 04.10.2008. On that date, he tendered his evidence affidavit Ex.PW-2/8. In the said affidavit, he testified on the same lines as above. Additionally, he deposed he witnessed the execution of conveyance documents qua suit property by defendant in favour of plaintiff, and that Manoj Kumar had also signed them as a witness. He also deposed that in his presence, plaintiff took over possession of ground floor of suit property, and permitted defendant to retain possession of first and second floor thereof, in view of the fact that wedding of the daughter of latter was scheduled for near future. PW2 also deposed plaintiff had kept his household articles in ground floor of the property, and also let his brother in law Ravinder to reside in the same as a licensee. He testified regarding appointment of LC by court, and the subsequent dispossession of plaintiff from ground floor of suit property by defendant.
In his cross examination, he that defendant had taken a loan from the plaintiff on 25.01.1995, the loan amount being Rs.20,000/-. He testified that he had also signed the loan CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 8/30 documents as a witness, being Ex.PW-5/3. Upon perusal of the document, he testified that the said document Ex.PW-5/3 does not bear his signatures. He accepted as correct the suggestion that the documents Ex.PW-5/4, Ex.PW-5/5, Ex.PW-5/6 and Ex.PW- 5/7 are loan documents which were exhibited in his presence and the amount of Rs.20,000/- was advanced by the plaintiff to the defendant in his presence as well. He testified that the said documents were also signed by Kalyan Singh, Manoj Kumar ,and Saraswati, and after that they were taken by the parties to an oath commissioner for their attestation. He testified that when he visited the suit property, one and a half years prior to the date of recording of his testimony, he found that Rajender is in possession of the suit property (Cross-examination dated 30.07.2010). He testified that initially only a loan agreement was executed between the plaintiff and the defendant, but it was agreed between the parties that if the loan was not repaid in six months, the title document shall become absolute. He testified that he does not know any Ravinder. He further testified that he is not aware of the contents of the evidence affidavit relied upon by him.
11. Plaintiff examined Sant Ram, Officer from Central Bank of India as PW-3. PW-3 testified that he has brought the summon record i.e. the statement of account of saving account bearing no. 15575 in the name of Nirmala Devi for the period 07.02.1994 to 29.07.1995 being Ex.PW-3/1.
Testimony of PW-3 on the record is also inchoate, and CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 9/30 while the witness had stated that he can bring the documents, the bank account statement of Nirmala Devi, wife of Dinesh Kumar for the period 01.01.1995 to 21.01.1995 on the next date, the said witness was also never recalled.
12. Mr. SP Sachdeva, Record Keeper, PNB, Krishna Nagar branch, Delhi was examined as PW-4 by the plaintiff. PW- 4 brought on record Ex.PW-4/1, being the bank account statement of Dinesh Kumar pertaining to account no.27257.
In his cross examination, he accepted as correct the suggestion that it is not mentioned on the document Ex.PW-4/1 that it is a certified copy of the records of the bank. He further testified that he cannot say if a relevant certificate under banker's book of Evidence act was issued in support of the document Ex.PW-4/1.
13. The plaintiff took the witness stand as PW-5. In his examination in chief, he tendered his evidence affidavit Ex.PW- 5/A bearing his signatures at point A and B.He testified that defendant had earlier taken a loan of Rs.80,000/- on 07.11.1994 from one Prem Singh, and executed in his favor, documents being registered GPA, Sale Agreement, Will receipt, affidavit being Mark A, B, C and D. Plaintiff testified that defendant received the loan amount and handed over the possession of the house in question to said Prem Singh, and on repayment of part of the loan amount, he vacated second floor and one room on CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 10/30 first floor, and the loan amount was to be cleared by 15.01.1995. He testified that for the purpose of clearing his obligation towards Prem Singh, defendant approached him. It is the case of plaintiff that at the behest of defendant, he repaid Rs.15,000/- to Prem Singh on 15.01.1995, who then vacated the ground floor of the suit property. He testified that defendant then executed a loan agreement dated 25.01.1995 similar to the one executed in favour of Prem Singh and also executed GPA, agreement to sell, affidavit, receipt all dated 25.01.1995 in his favor. He testified that the loan was to be repaid up till 06.08.1995. He testified that the defendant had concealed the factum of Prem Singh retaining of one room on first floor while entering into an agreement with him. He testified that the loan agreement Ex.PW-5/3 bears his signatures, and signatures of witness Manoj Kumar as well. He testified that he had called Manoj Kumar to testify as PW-1 but he was deliberately not cross examined by the defendant despite various opportunities, and ultimately the said Manoj Kumar expired. He testified that GPA Ex.PW-5/4 was also executed by the defendant in his favor, and has been signed by Saraswati and Kalyan Singh as attesting witnesses. He testified that the agreement to sell Ex.PW-5/5 as well as the affidavit Ex.PW-5/6 were both executed by the defendant. He testified that he had paid the loan amount to the defendant in tranches as per the schedule laid in the plaint.
He testified that defendant defrauded him by not repaying the loan, and instead filing a suit for declaration and CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 11/30 permanent injunction against him, which was ultimately, however, dismissed in default on 04.03.1996. He testified that because of the failure of defendant to repay the loan amount after the expiry of the period fixed in the loan agreement Ex.PW-5/3, he has become the owner of the entire suit property, and accordingly, he served a legal notice dated 14.11.1995 upon the defendant, cancelling his oral license and declaring the defendant as a trespasser therein. He testified that on 02.09.1995, the defendant attempted to dispossess him from the ground floor, because of which the plaintiff had lodged a complaint dated 02.09.1995 with SHO, PS Kalyanpuri against him. He testified that he later found out that defendant as well as wife, are habitual in obtaining loans against property from various people, and his wife had also similarly obtained a loan from one Kamla Devi Mishra. He testified that the original loan agreement, Ex.PW-5/3 is in the possession of the defendant, and since the latter failed to produce the same despite service of notice under Order 12 Rule 8 CPC, he may be permitted to rely upon the photocopy thereof. He further testified that when he took over the possession of the ground floor of the suit property, he put the same in possession of one Ravinder Kumar, who is his brother-in -law, as well as his family, as they needed a place to stay in Delhi. He testified that he retained the duplicate key of the premises with him. He testified that when the Local Commissioner visited the suit property, he as well as Ravinder Kumar were both present in the ground floor of the same. He testified that on 20.01.1998, CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 12/30 Ravinder had handed over the duplicate key of the ground floor of the property to him and since then, ground floor of the suit property was in his possession. He testified that on 10.02.1998 he went to his village, after locking the ground floor of the suit property, and when he returned on 19.02.1998, he was shocked to see that defendant and his wife had broken open the locks of the ground floor of the property and had trespassed therein. He testified that he had filed an FIR regarding this act of the defendant, and had also filed a criminal case under section 448/380/341/506/420/34 IPC against him which is pending trial at Karkardooma Court. He finally testified that he is entitled to seek mesne profits of Rs.1,000/- per month from the defendant for his illegal occupation of the ground floor of the suit property w.e.f. 19.02.1998, besides future mesne profits @ Rs.1,000/- per month till the actual date on which he regains the possession of the ground floor of the suit property. He also relied upon the documents Ex.PW-5/1 to Ex.PW-5/18 and documents mark A to T in his testimony:
(i) Possession slip with change of plot number as Ex.PW-5/1 (Colly.).
(ii) Site plan of the suit property as Ex.PW-5/2.
(iii) Loan Agreement dated 25.01.1995 as Ex.PW-5/3.
(iv) GPA dated 25.01.1995 as Ex.PW-5/4.
(v) Agreement to Sell dated 25.01.1995 as Ex.PW-5/5.
(vi) Affidavit dated 25.01.1995 as Ex.PW-5/6.
(vii) Cash receipt dated 25.01.1995 as Ex.PW-5/7.
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 13/30
(viii) Copy of legal notice dated 14.11.1995 as Ex.PW-5/8.
(ix) Postal receipt as Ex.PW-5/9.
(x) UPC receipt as Ex.PW-5/10.
(xi) Reply of notice as Ex.PW-5/11.
(xii) Copy of notice dated 02.04.1997 as Ex.PW-5/12.
(xiii) Postal receipt as Ex.PW-5/13.
(xiv) UPC receipt as Ex.PW-5/14.
(xv) Postal receipt no. 3778 as Ex.PW-5/15.
(xvi) UPC receipt as Ex.PW-5/16.
(xvii) Reply of notice as Ex.PW-5/17.
(xviii) Site plan as Ex.PW-5/18.
(xix) Agreement, GPA, Agreement to Sell, Registered Will
all dated 17.11.1994 as Mark A, B, C and D
respectively.
(xx) Photocopies of relevant pages of pass book as Mark
E, F and G.
(xxi) Copy of order dated 04.03.1996 as Mark H.
(xxii) Copy of order dated 05.03.1998 as Mark I.
(xxiii) Copy of complaint dated 02.09.1995 with SHO PS
Kalyan Puri as Mark J.
(xxiv) GPA, Agreement to sell, Affidavit, Receipt, Will all
dated 12.05.1992 as Mark K, L, M, N and O
respectively.
(xxv) Copy of complaint dated 23.01.1994 as Mark P.
(xxvi) Copy of plaint, application under Order 39 Rule 1
and 2 and affidavit as Mark Q (Colly.).
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 14/30
(xxvii) Report of Local Commissioner dated 20.08.1996 as
Mark R.
(xxviii) Copy of order dated 04.08.1997 as Mark S.
(xxix) Copy of complaint dated 19.02.1998 as Mark T.
In his cross examination, PW-5 testified that he was told by the defendant that the market value of the suit property was Rs.1,00,000/- at the relevant time, i.e. in the year 1995. He denied the suggestion that at the relevant time, market value of the suit property was Rs.5,00,000/-. He denied the suggestion that he was never in physical possession of the suit property and volunteered that in 1995, he was in possession of the ground floor till he was forcibly dispossessed by the defendant. He testified that he has not filed on record the original loan documents, as the same are in custody of the defendant. He denied the suggestion that it was the defendant who had let out the ground floor of the suit property to Ravinder Kumar and testified that it is he who had permitted Ravinder Kumar, who is his brother-in-law, to live in the ground floor of the property as a licensee. He accepted as correct the suggestion that defendant had promised to repay the loan amount to him within six months, and further accepted as correct the suggestion that it is upon the failure of defendant to repay the loan amount that he invoked the terms of the loan agreement. He accepted as correct the suggestion that the defendant had lodged a police complaint against him as well as Ravinder on 03.09.1995. He testified that he does not have any license for money lending, and clarified CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 15/30 that the loan advanced to defendant was merely a friendly loan.
After being cross examined at length, he was discharged as a witness.
14. Mr. S.N. Aggarwal, Branch Manager, Central bank of India, was examined by the plaintiff as PW-6. He testified that he could not bring on record the account statement as sought by the plaintiff for the period pertaining to 01.01.1995 to 30.01.1995, as the record has been weeded out. The report brought forth by him was exhibited as Ex.PW-9/1(mistakenly, instead of Ex PW6/1). He was not cross examined despite opportunity.
15. The seventh witness examined by plaintiff was Ct. Manoj Kumar (inadvertently examined as PW8). He testified that the records of the complaint pertaining to the period between 02.09.1995 to 19.02.1998 filed by Dinesh Kumar have been destroyed, and the certificate in this regard was exhibited as Ex.PW-8/1. In his cross examination, he testified that he cannot say as to what action was taken by the police on the complaints received from the plaintiff.
16. The next witness examined by plaintiff was Ravinder Kumar. He was examined as PW-10, albeit wrongly so, and should have been examined as PW-8. Be that as it may, PW-10, in his examination in chief, relied upon his evidence affidavit, Ex.PW-10/A. In his evidence affidavit, Ex.PW-10/A, PW CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 16/30 Ravinder testified that he had come to Delhi in May, 1995 , and was permitted to reside as a licensee in ground floor of the suit property. He testified that the defendant had filed a Civil Suit against his brother-in-law and during the pendency of the same, he had tried to dispossess him and throw him out of the ground floor of the suit property. He testified that the suit was, however, later dismissed in default and thereafter his brother-in-law filed a suit against Rajender, wherein a Local commissioner report came to be filed in Court, and as per which he as well as his brother-in- law, being the plaintiff, were possession of the ground floor of the suit property. He testified that since he could not manage to work in Delhi for a long time, he went back to his hometown on 20.01.1998, after handing over the keys of the ground floor of the property to his brother-in-law being the plaintiff. He testified that on 19.02.1998, he was informed by his brother-in-law that the defendant has trespassed into the suit property, upon which he rushed to Delhi and went to the Police Station and lodged a complaint with the police alongwith list of articles which the defendant stole from the suit property. In his testimony, the witness relied upon the site plan of the suit property Ex.PW-5/2 as well as Ex.PW-5/18.
In his cross examination, he testified that he has not instituted any suit against the defendant for recovery of possession. He accepted as correct the suggestion that defendant never forcibly dispossessed him and volunteered that he had remained in possession of the suit property from 1995 to 1998.
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 17/30 He testified that for some time he visited his village and when he returned in the year 1998, he found out that the defendant had removed his household articles from the suit property and did not permit him to re-enter the suit property. He denied the suggestion that he had leased the ground floor of the suit property from the defendant for a monthly rent of Rs.500/- ,and further denied the suggestion that he had voluntarily vacated the property and given over the vacant possession of the same back to the defendant on 06.10.1997. He testified that he had visited his village on 20.01.1988 and returned back on 10.02.1998, but testified that he does not remember if he had specified this fact in his evidence affidavit. He testified that plaintiff is his brother-in-law, but denied the suggestion that he is deposing falsely at the best of the plaintiff. Lastly, he accepted as correct the suggestion that he is not aware of the contents of his evidence affidavit.
17. The last witness to be examined by the plaintiff was Sh. Shailendra Babar, Ld. advocate who had been appointed by the court as a local commissioner. In his examination in chief, he relied upon the report prepared by him, Ex.PW-11/1. He testified that he had issued notice to the plaintiff before reaching the spot, and the carbon copy of the notice is Ex.PW-11/2. He testified that he had also issued notice to Sh. Rajinder Prasad, carbon copy of which is Ex.PW-11/3. He testified that he had also provided a site plan of the property at the time of the inspection being Ex.PW- 11/4. He testified that along with this report, he had also filed the AD card issued to defendant Rajinder Prasad, which is now part CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 18/30 of the list of documents, Ex.PW-11/5. He also filed seven photographs on record being Ex.PW-11/6 (Colly).
In his cross examination, effectively, the witness expressed his inability to testify qua facts of the case without reading the report prepared by him.
18. No other witnesses were examined by the plaintiff, and PE was closed in the affirmative vide order dated 20.11.2015.
19. Proceedings then progressed to the stage of recording of DE. At the stage of DE, the defendant examined himself as the sole witness of his case. In his examination in chief, the defendant tendered his evidence affidavit Ex.DW-1/A, in which he has made similar averments as that of the plaintiff. He also relied upon the police complaint dated 06.10.1997, Ex.DW-1/1. In his cross examination, he denied the suggestion that he had obtained a loan of Rs.80,000/- from Prem Singh or that at his behest, the plaintiff paid Rs.15,000/- to Prem Singh to discharge his loan. However, he accepted as correct the suggestion that he had executed a loan agreement in favor of the plaintiff. He denied that the loan agreement was for Rs.1,00,000/- and testified that it was instead was for Rs.65,000/- only. He accepted as correct the suggestion that on 25.01.1995, he, along with his wife and the plaintiff, had visited Patiala House court for the execution of the documents. However, he denied the suggestion that he had CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 19/30 executed GPA, agreement to sell, affidavit, receipt, possession slip and loan agreement in favour of the plaintiff, and volunteered that he was made to sign blank papers by the plaintiff. He testified that he had never given possession of any portion of the suit property to the plaintiff at any point in time. He accepted as correct the suggestion that he had filed a suit for declaration, permanent injunction against the plaintiff which was dismissed in default on 04.08.1997. He accepted as correct the suggestion that criminal proceedings vide complaint case no. 48 of 1998 were undertaken against him by the plaintiff ,and that he and his wife are facing prosecution under the said complaint. He denied the suggestion that Ravinder had handed over the possession of the ground floor of the property to him on 06.10.1997 and the complaint made by him with the police is false. After being cross examined at length thus, DW-1 was discharged as a witness.
20. No other witnesses were examined by the defendant, and DE was closed.
21. Matter was then fixed for final arguments. Final arguments heard, record perused, considered. My issue-wise findings are as under:
22. Issues No. 8 & 9:
Whether the plaintiff has become owner of the suit CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 20/30 premises by way of loan agreement? OPP.
and Whether the plaintiff is entitled to the relief of declaration? OPP.
The two issues are taken up together as they are interconnected.
It is seen that the entire substratum of the case of the plaintiff is that he had entered into a loan agreement with the defendant, and that defendant executed conveyance documents in his favour to secure the loan. It is his case that since the defendant failed to repay the loan upon the expiry of the loan agreement on 06.08.1995, he became the absolute owner of the suit property by virtue of the notarized documents being the GPA, Agreement to Sell, etc. Now, even the defendant has admitted that a loan transaction had taken place between the parties, although he is at variance as regards the amount of loan that was actually advanced to him by the plaintiff. Irrespective of the fact if Rs.1,00,00/- or Rs.65,000/- exchanged hands, it remains a fact that actual transaction between the parties was that of loan. This is evident from the testimony of Plaintiff/PW5 itself, who deposed that defendant had similarly obtained loans from Prem Singh, amongst others. It shows that parties were ad- idem regarding entering a loan transaction.
As per plaintiff, defendant executed notiarised GPA, agreement to sell, affidavit and receipt in his favour. Contrary CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 21/30 version set up by defendant was that he only signed certain blank documents, which were misused by plaintiff to create the conveyance documents. The onus to prove this fact, in terms of Section 102 of the Indian Evidence Act, 1872 was upon the defendant, and he failed to discharge the onus. Other than testifying to this effect as DW1, no evidence to this effect was led by defendant. Neither he brought on record any forensic evidence, or any ocular testimonies of people who accompanied him and the plaintiff on the day of loan transaction to this effect. He did explain why he never sought the return of the documents from the plaintiff, or filed a complaint qua them. Per contra, several witnesses examined by plaintiff testified that the conveyance documents were duly executed by the defendant. PW2 Kalyan Singh and PW10 Ravinder both testified to this effect, in sync with each other. As did the Plaintiff, when he took the witness stand as PW5. No gaps in their testimony could be demonstrated by the defendant even after lengthy cross examination of the witnesses. All the three witnesses testified that the conveyance documents were executed by defendant on 25.01.1995 at Patiala House Courts. Aside from suggestions, nothing material was brought on record by defendant to discredit them. Their testimonies are also corroborated by that of PW1 Manoj. Now, on the day PW1 Manoj was examined in chief, opportunity to cross examine him was also given to defendant.
Defendant did not avail the same, and PW1 later expired before he could be cross-examined. The factum of his death stands CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 22/30 established from the testimonies of PW5/Dinesh (plaintiff), PW2 Kalyan and PW10 Ravinder. Their version to the effect that PW1 Manoj Kumar expired during the pendency of proceedings was not challenged by the defendant, and can be deemed to have been admitted by him. As per Section 33 of the Indian Evidence Act, 1872, since defendant was accorded an effective opportunity to cross-examine the witness, his testimony cannot be discarded in its entirety. Its corroborative value cannot be negated. It thus stands established that the defendant executed the conveyance documents, all notarized, in favour of plaintiff on 25.01.1995.
The execution of the documents having been established, it is to be examined if any title was conveyed under the same.
Section 17 of the Indian Registration Act, 1908 requires that a conveyance Deed pertaining to an immovable property which is more than Rs.100/- in value has to be necessarily registered, before any title to the property can pass. No registered document of this nature was ever executed between the parties. Plaintiff only has notarized GPA, Agreement to Sell and affidavit in his favor. Prior to the 2001 amendment to the Registration Act, such documents could have been used by the plaintiff to seek specific performance of the contract and perfect his title over the same. Alternatively, in terms of Section 53 A of the Transfer of Property Act, 1882, the plaintiff could have used the documents as a shield to protect his possession over the property. However, it is not even the best case of the plaintiff that CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 23/30 he was put in possession of the entire suit property and therefore, Section 53 A becomes irrelevant. Admittedly, the plaintiff did not seek any specific performance of the contract, and has only in his favor the aforesaid notarized documents. One of such documents is a power of attorney/GPA executed between the parties. However, it cannot be said that plaintiff can claim any rights in the property by virtue of the said GPA, in terms of Section 202 of the Indian Contract Act, 1872, since it is not the case of parties that any consideration flowed under the document. Rather, even the best case of plaintiff is that he had advanced a loan to the defendant. Even if the loan amount is considered to be the consideration, the said GPA could have been used by the plaintiff to claim possession over the suit property against any third party, except the true owner of the property. Defendant being the true owner of the suit property, plaintiff cannot claim better title than him on the strength of the GPA. Reliance at this juncture can be placed on the judgment titled Ramesh Chand vs Suresh Chand 2012 (188) DLT 538 wherein it has been held:
"2. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No.1.I"
Pertinent would also be to quote the observations of the Hon'ble High Court of Delhi in its decision titled Bishan CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 24/30 Chand vs Ved Prakash (since deceased) through LRs and Anr. AIRONLINE 2018 DEL 2865, wherein it was observed:
"14. However, as would be clear from the aforesaid paragraphs, the judgment does not lay down any new law or principle and is not pathbreaking and merely reiterates the well settled legal position as always understood in the past as well. Even on request to make the judgment applicable prospectively, it was clarified that SPA/GPA/Will transactions effected prior to the said judgment, could not be treated as completed transfers or conveyances and could be treated as existing agreements of sale on basis of which conveyance deeds to perfect title could be obtained or specific performance sought or defence of Section 53A of Transfer of Property Act, 1882 taken or registration from development authorities sought. It was further clarified that where on basis of SPA/GPA/Will/ transactions, mutations had already been effected, such mutations will also not be disturbed on account of the judgment. Supreme Court nowhere said that SPA/GPA/Will transactions of a date prior to the judgement will constitute a title. Rather, it was held, they would not. The appellant / plaintiff thus cannot claim that he has title to the property as agreement purchaser and the courts cannot declare the appellant / plaintiff to be having title to the property.
15. As far back as in Jiwan Dass Rawal Vs. Narain Dass AIR 1981 Del 291 followed in Deewan Arora Vs. Tara Devi Sen 2009 SCC OnLine Del 3203, Sunil Kapoor Vs. Himmat Singh 2010 SCC OnLine Del 354, CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 25/30 ASV Industry Vs. Surinder Mohan 2013 SCC OnLine Del 3176 and Samarjit Chakravarty Vs. Tej Properties Pvt. Ltd. 2014 SCC OnLine Del 240, this Court held that an Agreement to Sell does not vest any title in the property and only gives a right to seek specific performance. It was further held that even on passing of a decree for specific performance no right in the property is acquired by the agreement purchaser till implementation of the said decree by execution / registration of conveyance / transfer deed being executed in favour of agreement purchaser."
In terms of the aforesaid discussion, this Court is of the considered opinion that the conveyance documents as aforesaid do not convey any title to the plaintiff, and therefore the plaintiff cannot be held entitled to the relief of declaration as prayed for. Both of these issues are decided against the plaintiff and in favor of the defendant.
23. Issue no. 1:
Whether the plaintiff does not disclose any cause of action and is liable to be dismissed under Order 7 Rule 11 CPC? OPD.
Having noted the fact that conveyance documents qua suit property executed by defendant did not have the effect of transfer of title in the suit property, it can safely be concluded that plaintiff did not have any cause of action in his favour to CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 26/30 claim title or possession over the suit property. This issue is accordingly decided in favour of defendant, and against the plaintiff.
24. Issue no.3:
Whether the plaintiff does not have any locus standi to file the present suit? OPD.
Locus standi means the right or capacity to file an action before the Court. The case of plaintiff being premised on certain documents which did not convey any title to him, it is seen that the plaintiff did not have any locus standi to file the instant suit. This issue is decided against the plaintiff, and in favour of the defendant.
25. Issue no. 4 and 7:
Whether this Court does not have pecuniary jurisdiction to entertain the present suit? OPD.
and Whether the plaintiff has valued its suit property for the purposes of Court Fees and jurisdiction and appropriate Court Fees has been affixed on it? OPP Plaintiff has sought relief of declaration qua title over the suit property. Prayer for possession of first and second floor of the suit property has also been made. The prayer for possession is consequential to the relief of possession. As per section 7 (iv) (c) of the Court Fees Act 1860, such a suit should have been valued by the plaintiff at the market value of the suit CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 27/30 property. However, despite placing on record alleged title documents of the suit property declaring its market value to be Rs.1,00,000/-, the plaintiff valued the suit only at Rs 60,000/-. Hence, in the considered opinion of this Court, the plaintiff failed to value the suit appropriately for the purpose of court fee as well as jurisdiction, although even when valued appropriately, this court would have retained the pecuniary jurisdiction to try the suit. These issues are accordingly decided.
26. Issue no. 5:
Whether the suit of the plaintiff is barred under Section 10 CPC? OPD.
The defendant had taken the plea that he had also filed a suit for declaration and permanent injunction against the plaintiff and the suit is pending trial. He had taken the plea that similar issues as are involved in the instant suit are involved in the said suit filed by him as well and that the other suit is still pending. However, defendant never proved the record of that case and at trial, admitted that the said suit has been dismissed. Defendant failed to discharge the onus qua this issue. The issue is decided against the defendant and in favor of the plaintiff.
27. Issue no. 2 & 6:
Whether the suit of the plaintiff is barred under Section 41 (h) of the Specific Relief Act? OPD.
and CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 28/30 Whether the suit as framed without claiming the Specific Performance of the contract is maintainable in the present form? OPP.
It has been discussed in the foregoing portion of this judgment that no title to the suit property was conveyed to the plaintiff on the strength of the notarized documents executed in his favour by defendant. Prior to the 2001 amendment to the Indian Registration Act, 1908, an unregistered agreement to sell could have been used by the plaintiff to file a suit for specific performance. The plaintiff ought to have filed such a suit so as to perfect his title over the suit property. He had an equally efficacious remedy, which he chose to not avail. Without any valid conveyance document in his favor, he did not acquire any title to the suit property. The foundational fact for maintaining the suit for declaration of title and possession thus could not be established by him. Accordingly, these issues are decided against the plaintiff and in favor of the defendant.
28. Issue no. 10:
Whether the plaintiff is entitled to the relief of possession as claimed? OPP.
The plaintiff has sought the relief of possession of the suit property as owner thereof. In view of the discussion pertaining to issues number 8 and 9, it is clear that no title was ever conveyed by the defendant to the plaintiff for the suit property. As such, the plaintiff never became the owner thereof, CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 29/30 and cannot be held entitled to the relief of possession. This issue is accordingly decided against the plaintiff and in favor of the defendant.
29. Issue no. 11:
Whether the plaintiff is entitled to claim the relief of damages, if so, at what rate and for what period? OPP.
In view of the discussion pertaining to issues no. 7 & 8, since the plaintiff never became the owner of the suit property, it cannot be said that the defendant was at any point in time occupying the same as an illegal occupant thereof. Therefore, the plaintiff is not entitled to seek any damages from the defendant. This issue is accordingly also decided against the plaintiff and in favor of the defendant.
30. Relief:
In view of the findings qua various issues above, the suit of the plaintiff is dismissed.
Parties to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room after due
compliance. Digitally signed
by Medha Arya
Medha Date:
Arya 2024.03.22
17:04:42
+0530
Announced in the open court (MEDHA ARYA)
on 22.03.2024 Administrative Civil Judge -cum-
(This judgment contains Additional Rent Controller (Central) 30 pages in total) Delhi/22.03.2024 CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 30/30