Delhi District Court
Adj03 (Central) Delhi vs Sh. Umesh Chand Gupta on 16 May, 2013
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (CENTRAL) DELHI
Suit No : 389/12
Sh. Amrik Singh,
S/o Sh. Variyan Singh,
R/o WZ206F, Vishnu Garden,
Uttam Nagar, New Delhi ..... Plaintiff
versus
Sh. Umesh Chand Gupta
S/o Late Sh. R.N.Gupta
R/o 326, Lodhi Road Complex,
New Delhi .....Defendants
Date of Institution of the Suit : 21.02.2005
Date on which order was reserved : 02.05.2013
Date of decision : 16.05.2013
JUDGMENT
1. Vide this judgment I shall dispose off the suit for permanent and mandatory injunction.
2. Brief facts are it is stated that plaintiff is lawful owner in possession of the property bearing no. WZ81/1A, measuring 86 Sq. Yds., out of khasra No. 18/13 situated in Shahpura, Guru Nanak Nagar, Delhi(hereinafter referred to as suit property) as per the site plan.
3. It is stated the plaintiff had purchased the suit property from Sh. Sahib Singh S/o Madho Singh, R/o D143, Tagore Garden, New Delhi, vide GPA and Receipt dated 24.06.1999 for a valuable consideration of Rs. 1,25,000/.
Suit No. 389/12Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
24. It is further stated that the suit property travelled in different hands prior to the coming in the hand of plaintiff. Firstly the defendant was the owner of suit property and he sold the suit property to (i) Smt. K.Lalithambika R/o C.I. Nightangle Apartment, Vikas Puri, New Delhi18, and (2) Smt. K.Gupta, W/o Sh. U.C.Gupta wife of the defendant and (3) one Sh. Amarjeet Singh Pawa S/o Sh. Gurubaksh Singh, R/o P./O 5235, R.A.K., (U.A.E). All the above named purchaser(s) purchased the suit property in equal share.
5. It is further stated that Sh. Amarjeet Pawa further sold his 1/3rd share in the suit property to one Sh. S.Surendra Singh vide agreement to sell dated 06.11.1998 and thereafter Sh. S.Surender Singh sold the above suit property to Sh. Sahib Singh vide registered GPA dated 29.12.1998.
6. It is further stated that plaintiff firstly took the suit property on rent vide rent agreement dated 12.01.1999 and later on plaintiff purchased the suit property and started his work of repairing the road roller and the plaintiff had been working in the suit property without any disturbance.
7. It is further stated that plaintiff took the premises on rent and took the possession, defendant began to create disturbance in the peaceful possession of the plaintiff and for the same the prior owner Sh. Sahib Singh lodged a compliant with the police dated 01.06.1999, but the said Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
3hindrance did not stop and the local police started colluding with the defendant. It is further stated that thereafter said Sahib Singh alongwith the plaintiff had filed a suit for permanent injunction against the defendant on 07.06.99, titled as Amrit Singh Vs. Ramesh Chand Gupta and in the said case a local commissioner was appointed and the local commissioner had submitted his report on 10.12.2002.
8. It is further stated that thereafter the plaintiff first time came to know that defendant had raised a permanent wall behind all the gates of entrance and already put his own locks over the suit property for which the plaintiff had no knowledge.
9. It is further stated that plaintiff had no knowledge how and when the defendant took the possession of the suit property and raised a permanent construction and plaintiff first time came to know about the said fact, when the local commissioner was appointed. Plaintiff is a bonafide purchaser of the suit property which is clear from the report of the local commissioner, as belongings of the plaintiff was found lying at the time of visit of local commissioner and the defendant had raised permanent wall behind all the entrances of the suit property to which defendant has no legal right, as he has already sold the suit property.
10.It is further stated that the defendant had raised permanent Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
4wall behind all the entrances of the property in question during the pendency of the above mentioned suit and as such the said suit had become infructous, as the cause of action for filing the present suit has arisen on 05.12.02, when the local commissioner was appointed in suit No. 212/02. Hence, the plaintiff has been forced to file the present suit with the prayer that a decree of mandatory injunction be passed in favour of the plaintiff and against the defendant and the defendant be directed to remove the permanent construction from behind the entrances of the property in question and removing the locks from the entrances of the suit property with a further prayer that a decree of permanent injunction be passed in favour of the plaintiff and against the defendant from disturbing the peaceful possession of the plaintiff over the property in question.
11.Written Statement has been filed by the defendant in which it is stated that the present suit is not properly valued for the purposes of court fees and jurisdiction. It is stated that plaintiff is required to pay court fees on Rs. 7 lacs as alleged by him, as the value of the property was more than Rs. 20 lacs on which requisite court fees had to be paid.
12.It is further stated that on similar facts the plaintiff had filed a suit in the court of Sh. Manish Gupta, Ld. Civil Judge, Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
5Delhi. The parties are the same and the facts are the same and therefore the present suit was hit U/o 2 Rule 2 CPC. It is also stated that the present suit is barred by limitation, as the alleged wall was constructed long back more than the statutory period of limitation, therefore suit for mandatory injunction is not maintainable. It is further stated that defendant is the lawful owner, who never sold the suit property to anyone and it appears that some documents may have been forged and fabricated by the plaintiff including the documents filed by the plaintiff in the court of Sh. Manish Gupta, Ld. Civil Judge, Delhi. It is denied that plaintiff is the lawful owner and in possession of the suit property and it is stated that site plan is incorrect. It is denied that the suit property had been sold to different persons and now the plaintiff had become the owner of the same. It is also denied that plaintiff was ever in possession of the suit property or was tenant in the same or had purchased the same.
13.It is stated that wall in question was there right from inception and this fact was reiterated by the defendant in the application moved before the court of Ld. Civil Judge, Delhi. It is further stated that plaintiff had concealed the fact that the earlier suit filed by him in the court of Ld. Civil Judge, Delhi was dismissed on 20.04.2005, therefore the Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
6present suit is barred U/o 9 Rule 9 CPC and Section 11 CPC. It is also denied that any local commissioner was appointed or that plaintiff ever remained in the possession of the suit property and it is stated that the said report of Local Commissioner is bad in law. Therefore, it is stated that suit of the plaintiff is liable to be dismissed.
14.Replication has been filed by the plaintiff to the written statement of defendant in which the allegations made in the plaint have been reiterated and correct and those made in the written statement have been denied.
15.From the pleadings of the parties, following issues were framed on 10.07.2006:
(i)Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction ? OPD.
(ii)Whether the suit of the plaintiff is hit by Order 2 Rule 2 r/w Section 11 CPC ? OPD.
(iii)Whether the suit of the plaintiff is barred by limitation for the purpose of mandatory injunction ?
(iv)Whether the plaintiff is owner in possession of the suit property ?
(v)Relief
16.Plaintiff in support of his case has examined himself as Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
7PW1. In rebuttal defendant has examined himself as DW1. Defendant has also examined one witness Sh. Mukhtiar Singh, UDC from the office of SDM, Patel Nagar as DW2, who has proved the copy of kalandra ExDW2/B and final order passed by SDM ExDW2/C. DW3 is Sh. Yash Pal Arora, LDC from the office of Sub Registrar II Janak Puri, New Delhi who has proved the cancellation of will dated 17.12.96 by the defendant, certified copy of the same is ExDW3/C and dissolution deed dated 17.12.1996, certified copy of which is ExDW3/B and certified copy of the GPA dated 17.12.1996 is ExDW3/C. DW4 Sh. Bharat Kumar, who has proved the record of the previous suit No. 212/02 between the same parties more specifically the order sheets for the period 03.09.2003 to 20.04.2005 which are collectively exhibited as ExDW4/A and copy of the pleadings which are ExPW1/C to ExPW1/H.
17.I have heard Ld. Counsel for the plaintiff Sh. Ashok Bhardwaj and Sh. J.K.Jain Ld. Counsel for the defendant. I have also gone through the written submissions filed on behalf of defendant. Counsel for defendant has relied upon following judgments in support of his contentions:
(i)2007(95) DRJ 395
(ii)(2008) 4 SCC 594
(iii)AIR 1977 A.P. 90 Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.8
(iv)1976 ALT 125
(v)183(2011) DLT 1(SC)
18. My issue wise findings are as under:
ISSUE No. 219. The plaintiff has filed the present suit for permanent and mandatory injunction with respect to the suit property. It is also mentioned in the plaint more specifically in para No 10 that the plaintiff alongwith one Sahib Singh from whom the plaintiff claims to have purchased the suit property had filed a previous suit against the defendant titled as Amrik Singh Vs. Ramesh Chand Gupta and it is also mentioned in the plaint that the said suit No. was 212/02. The witness of the defendant DW4 who was a witness from the concerned court has proved the certified copies of the order sheets pertaining to the said suit No. 212/02 from 03.09.2003 to 20.04.2005 which were collectively exhibited as ExDW4/A and the certified copy of application filed by the present plaintiff U/o 6 Rule 17 CPC as ExDW4/B and the copy of the amended plaint as ExDW4/C. Copy of the amended plaint for mandatory injunction which has been proved on record ExDW4/C shows that plaintiff after filing of the suit for permanent injunction had sought to amend the plaint by asking for the relief of mandatory injunction against the defendant with the direction that defendant be directed to open the locks of the Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
9gate and to remove the permanent construction raised by the defendant from behind the entrance vide order dated 23.11.04 which has been collectively Exhibited as ExPW4/A, in which it was observed as under, while dismissing the application of the present plaintiff:
Arguments heard on the application U/o 6 Rule 17 CPC which was filed on behalf of plaintiff on 17.05.04. The present suit is for permanent injunction and through this amendment the plaintiff wants to seek the relief of mandatory injunction as well. In the present application it is mentioned that during the pendency of the suit the defendant was able to put his lock on the main gate and have constructed permanent wall behind the rest of the entrance for which the plaintiff had reported the matter to the police vide complaint dated 08.07.1999. It is pertinent to mention here that in the application in para 3 it has been mentioned that the said fact came to Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.10
the knowledge of the undersigned counsel for the plaintiff only when he was preparing arguments for the next date. The application is not supported by the affidavit of counsel for plaintiff.
Defendant has filed the reply, therein it has been mentioned that the application is not supported with legal admissible affidavit.
Counsel for defendant has argued that no specific date has been mentioned in the present application necessitating the amendment in question. Moreover, it has been argued on behalf of the defendant that counsel for plaintiff has came to know about the said fact during the pendency and it is nowhere stated that the plaintiff also was not aware of the said fact prior to filing of the present application.
In view of above facts and circumstances I am of the considered opinion that the application is totally Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
11vague and not in accordance with law and I see no merits in the present application as no specific date of knowledge of the counsel for plaintiff is also not mentioned. Moreover, it is nowhere stated that the plaintiff was not aware about the alleged fact prior to filing of the present application. In view of the above facts application is hereby dismissed.
20. It is admitted case of the plaintiff that after the dismissal of his application U/o 6 Rule 17 CPC vide order dated 23.11.2004 in the said suit No. 212/02, no appeal was preferred by him challenging the said order. Accordingly, the said order has attained finality. He has also not disputed that the said suit was dismissed in default vide order dated 20.04.2005. The relevant part of the order sheet is reproduced as under:
"Photocopy of plaint and summoned filed on behalf of defendant with list. Counsel for defendant submits that the plaintiff has filed another suit for permanent and mandatory injunction against the present defendant and in the said plaint it has been mentioned Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.12
that the suit No. 212/02 has become infructous. The present suit is suit No. 212/02 and the summons filed today are with respect to the suit No. 25/05 titled as Amrik Singh Vs. Sh. Umesh Chand Gupta and issued form the court of Sh. Gurdeep Kumar Ld. ADJ Delhi. Vide orders dated 23.11.04 the application U/o 6 Rule 17 CPC which was filed on behalf of plaintiff was dismissed and the matter was fixed for consideration, whether the suit is maintainable.
It is 2.15 P.M, now and since none has appeared on behalf of plaintiff since morning despite repeated calls, therefore the present suit is dismissed in default.
21. It is also not disputed by the plaintiff that the earlier suit filed by him was a suit for injunction filed by the him restraining the defendant from dispossessing the plaintiff from the suit property and from interfering with the peaceful possession and enjoyment of the possession of the suit property by the plaintiff. Vide application for amendment U/o Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
136 Rule 17 CPC, the plaintiff had prayed for amendment that the defendant had put locks on the main gate and had also constructed permanent wall behind the rest of the entrance and for which the plaintiff had reported the matter to the police vide complaint dated 08.07.1999 and this fact also came to the knowledge of the counsel for the plaintiff only when he was preparing arguments for the next date and in these circumstances amendment was sought, which was rejected vide above mentioned detailed order of Ld. Civil Judge dated 23.11.04. It was specifically observed in the said application that the said fact with regard to the relief of mandatory injunction was in the knowledge of the plaintiff w.e.f 08.07.1999 and the said suit has been filed in the year 2002. Consequently the relief with regard to the mandatory injunction was very much in the knowledge of the plaintiff at the time of preferring the earlier suit No. 212/02. Order 2 Rule 2 CPC is reproduced as under:
Suit to include the whole claim(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.14
jurisdiction of any Court.
(2)Relinquishment of part of claim Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation For the
purposes of this rule an
obligation and a collateral
security for its
Suit No. 389/12
Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
15performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
The requirement of Order II, rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings, Sidramappa Vs. Rajashetty, AIR 1970 SC 1059
22.The principle underlying the provisions of Order 2 Rule 2 CPC is that the plaintiff is not entitled to split the relief arising out of same cause of action by filing separate suits, as no one should be vexed twice by splitting the claims and Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
16splitting the remedies. As discussed above, the earlier suit of the plaintiff was with regard to the relief of injunction in which the plaintiff wanted to seek the relief of mandatory injunction. The application U/o 6 Rule 17 CPC moved by the plaintiff in previous suit is based upon the same cause of action and it was specifically mentioned in the said application U/o 6 Rule 17 CPC that the plaintiff was having knowledge of alleged construction of permanent wall behind the entrance of the plaintiff and putting of the locks on the main gates on 08.07.1999.
23. After dismissal of aforesaid suit in default the present suit has also been filed for permanent and mandatory injunction based upon same cause of action with a prayer for passing a decree of permanent injunction restraining the defendant from disturbing the peaceful possession of the plaintiff in the property in question and also for directing the defendant to remove permanent construction behind the entrances of the property in question and to remove the locks from the entrance. Since the said relief of mandatory injunction arising out of the same cause of action could have been claimed by the plaintiff in the earlier suit. Since as per Order 2 Rule 2 CPC every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. It is not the case of the plaintiff that Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
17he obtained any leave of the court regarding the omission for claiming the relief of mandatory injunction, therefore the bar of Order 2 Rule 2 CPC is squarely applicable to the facts of the present case, as the plaintiff is not allowed to split the relief(s) of permanent and mandatory injunction arising out of same cause of action. In this regard, judgment relied upon by counsel for plaintiff 2007(V) AD Delhi 1999 is squarely applicable to the facts and circumstances of the present case.
24.Regarding the arguments of Ld. Counsel for the defendant that the present suit is also barred by Section 11 of CPC by the principle of resjudicata. The said argument is without any substance, as the earlier suit of the plaintiff was dismissed in default vide order dated 20.04.05, which was not heard and finally decided on merits. Though the parties to the suit are same and the subject matter of the suit is also same, but earlier suit has not been decided on merits, therefore it cannot be said that the earlier suit has been heard and finally decided by the court of Ld. Civil Judge. Though matter in issue in the earlier suit and in the present suit is directly and substantially the same and the parties are also the same and the subject matter of the suit is also same. However, since the subject matter has not been finally decided on merits, the bar of Section 11 CPC is not Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
18applicable to the facts and circumstances of the present case. However, suit is clearly hit by Order 2 Rule 2 CPC. This issue is decided accordingly.
ISSUE NO. 325. The plaintiff in his application U/o 6 Rule 17 CPC for amendment moved in the earlier suit, copy of which is Ex DW4/B has admitted that the defendant was able to put his lock on the main gate and also constructed permanent wall behind the rest of the entrance for which the plaintiff had reported the matter to the police vide complaint dated 08.07.1999 and in this regard his application for amendment was also dismissed by the order of Ld. Civil Judge dated 23.11.2004, copy of which has been exhibited collectively as ExDW4/B, therefore the plaintiff admits this factum of construction of permanent wall behind the entrance of the plaintiff, and that it was known to the plaintiff w.e.f 08.07.1999 and PW1 in his cross examination has also admitted as under:
"It is correct that I had filed an application for amending that suit which was dismissed by that court on 23.11.04. I did not file any revision against that order in the Hon'b le High Court. The said wall which was raised by the defendant was raised by him in Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.19
the year 1999 but I cannot tell the date when the said wall was raised by the defendant in the year 1999. It is correct that in the previous suit I did not mention in my pleadings as to on what date the wall in the shop was raised by the defendant."
26. In view of the categorical admissions made by the plaintiff in his earlier application U/o 6 Rule 17 CPC moved in Suit No. 212/02 and in his cross examination in this case, it is clear that the plaintiff was having the knowledge that the defendant had allegedly raised a wall behind his entrances in the year 1999, yet the plaintiff did nothing to get the said wall removed by preferring the suit for mandatory injunction. The present suit claiming the relief of mandatory injunction has been filed in the year 2005. The limitation for filing a suit for mandatory injunction as per Article 113 to the schedule of limitation Act is 3 years, when the right to sue first accrued to the plaintiff for claiming the relief of mandatory injunction, in the present case the said right first accrued to the plaintiff in the year 1999. The filing of the present suit claiming the relief of mandatory injunction in the year 2005 is clearly barred by limitation. The plaintiff has also failed to make out any cause for excluding the time spent by the plaintiff in prosecuting the Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
20earlier suit for injunction bearing No. 212/02, as per Section 14 of the Limitation Act, as the time spent while prosecuting with due diligence other civil proceeding. Further the earlier suit of the plaintiff bearing No. 212/02 had been dismissed in default in the year 2005 and this fact regarding construction of wall was in the knowledge of the plaintiff in the year 1999 and the plaintiff whose earlier suit has been dismissed in default vide order dated 20.04.05. Instead of reviving the earlier suit has filed the present suit based upon the same cause of action. In these circumstances suit of the plaintiff is also barred U/o 9 Rule 9 CPC. Consequently, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE No. 427. The onus to prove this issue was upon the plaintiff. The plaintiff has relied upon various documents in support of his claim that he was the owner of the suit property. In this regard he has relied upon the documents which are ExPW1/A to Ex PW1/L, which are the documents in the nature of GPA and Agreement to Sell executed in favour of plaintiff by various persons starting from the defendant, lastly the plaintiff has claimed that he had purchased the suit property from Sh. Sahib Singh S/o Sh. Madho Singh vide GPA and receipt dated 24.06.1999. The said documents are ExPW1/B and ExPW1/C and it is stated that the suit property travelled through Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
21different hands, firstly the defendant was the owner of the suit property, who sold the suit property to one Smt. K.Lalithambika, Smt. K.Gupta and Sh. Amarjeet Pawa vide documents ExPW1/D and ExPW1/E, which are the copies of GPA and will and thereafter Mr. Amarjeet Pawa sold his 1/3rd share in the suit property to one Sh. S.Surendra Singh vide GPA and agreement to sell, which are ExPW1/F and Ex PW1/G respectively and thereafter Sh. S.Surendra Singh sold the suit property to Sh. Sahib Singh vide GPA and registered will which are ExPW1/H and ExPW1/I through whom the plaintiff is claiming that he had purchased the suit property vide documents ExPW1/B and ExPW1/C for valuable consideration of Rs. 1,25,000/. Plaintiff is also claiming that prior to purchase of the suit property he had been inducted as a tenant in the suit property by Sh. Sahib Singh on 12.01.1999. The plaintiff has been extensively cross examined on the aforesaid documents.
28.The defendant, on the other hand, appeared as DW1 and has stated that he had executed a power of attorney on 17.12.1996 in favour of Smt. K.Lalithambika, Smt. Kusum Gupta and Sh. Amarjeet Singh Pawa, which was duly registered on 08.12.1993, but the said GPA dated 08.12.93 was duly cancelled by him on 17.12.1996 vide document Ex DW1/1 and similarly he had executed a Will on 08.12.1993 Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
22which was also cancelled on 17.12.1996 which is ExDW1/2. The defendant had also examined one witness DW3 Sh. Yash Pal Arora, who brought the official record containing the said documents from the office of Sub Registrar, Janak Puri, Delhi and he has proved the relevant record pertaining to cancellation of will dated 17.12.1996 as ExDW3/A and the GPA dated 17.12.1996 as ExDW3/C. Nothing has emerged in his cross examination which could show that the said documents were not cancelled and the said documents were not genuine. In any case, the said documents have been produced from the official record. Accordingly, it is presumed that they are genuine.
29.It is settled law, as held in the judgment of Hon' ble Supre Court titled as Suraj Lamp & Industries Pvt. Ltd., Vs. State of Haryana & Anr 183(2011) DLT 1(SC) that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance, transactions in the nature of GPA sale or sale agreement /GPA/Will transfers do not convey title and does not amount to transfer, nor they can be recognised as a valid mode of transfer of immovable property, they cannot be recognized as deeds of title, except to the limited extent of Section 53A of Transfer of Property Act. In view of the said judgment of Hon'b le Supreme Court the said chain of documents relied upon by the plaintiff Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
23which are in the nature of GPA and agreement to sell does not convey any title in favour of the plaintiff. In any case, since the defendant had cancelled GPA and will vide document dated 17.12.1996 duly registered with the office of Sub Registrar, Janak Puri, Delhi, therefore all the subsequent documents through which the plaintiff is claiming his rights in the suit property are void, as GPA is only an agency agreement executed by the principal in favour of his agent which can be cancelled by principal at his sweet will and further an agreement to sell does not convey any title or interest in the property. In these circumstances, since there was a serious cloud over the title of the plaintiff, plaintiff should have sought a declaration in this regard in the present suit. This complicated issue of title raised in the present suit cannot be decided in a suit for injunction Simplicitor as held in judgment (2008) 4 SCC 594 which is the judgment relied upon by the defendant, which is squarely applicable to the facts of the present case.
30.Even otherwise, plaintiff has failed to produced most vital witness Sh. Sahib Singh in the witness box to corroborate his testimony that he had purchased the suit property from him for valuable consideration. Non production of such a vital witness, leads to drawing of adverse inference against the plaintiff that if he would have been examined he would Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
24have deposed against the case of the plaintiff that is why the said vital witness was not brought forth by the plaintiff. The rent agreement relied upon by the plaintiff also not proved for the same reasons, as the plaintiff has failed to prove that said Sahib Singh was the landlord of the suit property who had allegedly inducted him into the suit property. Non production of said Sahib Singh by the plaintiff also does not prove that he was a tenant in the suit property or was inducted as a tenant by said Sahib Singh.
31.It is settled law that nobody can convey to another, better title than he himself has. In these circumstances, the plaintiff who is drawing his rights through Sahib Singh, whereas the defendant has proved that he had cancelled the GPA and will which are the main chain in the documents relied upon by the plaintiff, therefore since the very basis on the basis of which the plaintiff is claiming his rights in the suit property i.e one of the most vital chain of documents have been broken, as the defendant had revoked GPA and will vide duly registered documents with the office of Sub Registrar, therefore all subsequent transactions of subsequent persons after the said cancellation of documents were void and does not pass any right or title in favour of subsequent persons. In these circumstances, the plaintiff has failed to show that he is the owner of the suit Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
25property
32. Regarding the possession, the defendant has produced one witness from the office of SDM Patel Nagar, who has proved one Kalandra U/s 145 Cr.P.C in which both the plaintiff and defendant were the parties. Copy of the same is ExDW2/B and the final order passed by said court is ExDW2/C, PW1 in his cross examination has admitted that kalandra was framed by the SDM Ram Pura which was decided against him on 23.05.2000 and it was correct that SDM held in favour of defendant Umesh Gupta that he was in possession of the suit property, but he did not challenge the order dated 23.05.2000 passed by SDM Ram Pura and he also admitted as correct that in the said kalandra he and Sh. Sahib Singh were the parties and even Sahib Singh has not challenged the order before higher authorities. In view of the above admissions made by the plaintiff that the Kalandra was prepared between the parties, the copy of which has also been proved on record as ExDW2/B and Ex DW2/C by the witness from the office of concerned SDM and he has also admitted that in the said kalandra it was held that defendant was in possession of the suit property and the order against the said kalandra was not challenged by him. In view of the said admissions made by the defendant and in view of the said documents ExDW2/B Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
26and ExDW2/C in which it has been categorically held that defendant was found to be in possession of the suit property on 23.05.2000, therefore plaintiff cannot be said to be in possession of he suit property at the time of filing of the present suit. Consequently it is held that plaintiff is neither the owner, nor in possession of the suit property. This issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 133. The plaintiff has filed the present suit for permanent and mandatory injunction and in relevant para No. 19 of the plaint with regard to valuation of suit, it is stated as under:
"That for the purpose of pecuniary jurisdiction for the value of the suit is Rs. 7,00,000/(Rupees Seven Lacs only) and the purpose of the value suit is Rs. 130/ each and requisite court fee has been paid on it.
34.The onus was upon the defendant to prove that the suit of the plaintiff was not properly valued for the purposes of court fee and jurisdiction. The defendant has relied upon Suit Valuation Act in support of his contentions. As per the said Act the value for the purposes of court fee(s) is also to be the value for the purpose of jurisdiction. Since the Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
27plaintiff has valued the suit for the purposes of jurisdiction at 7 lacs and for the other reliefs at Rs. 130/ each, therefore he is also liable to pay court fee(s) at Rs. 7 lacs, which is the value for the purposes of court fee(s).
35. As per Section 7(iv)(d) of the Court Fee(s) Act 1870, the plaintiff is granted discretion to value the relief with regard to the relief of injunction. However, Section 8 of the Suits Valuation Act, it is reproduced as under:
8. Courtfee value and jurisdictional value to be the same in certain suits Where in suits other than those referred to in the Courtfees Act, 1870 (7 of 1870), Section 7, Paragraphs V, VI and IX, and paragraph X, clause (d), Court fees are payable ad valorem under the Court Fees Act, 1870(7 of 1870), the value as determinable for the computation of Court fees and the value for purposes of jurisdiction shall be the same.
36.In view of Section 8 of Suit Valuation Act which provides that the value as determinable for the computation of Court fees and the value for the purposes of jurisdiction shall be the same. The former determines the value of the later and Suit No. 389/12 Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
28not vice versa i.e this provision makes the value for the purposes of jurisdiction depends upon the value as determinable for the purposes of court fees. However, the plaintiff has not been given any absolute right to put any valuation whatever on such relief, though ordinarily his estimation is to be accepted. But where he deliberately under values the same, court is not supposed to be a silent and spectator(AIR 1987 Pat 156)
37.In these circumstances, since the present suit for the purposes of jurisdiction has been valued to be Rs. 7 lacs, it has also to be valued at Rs. 7 lacs for the relief of court fee. Since plaintiff has not paid proper court fees at said valuation of Rs. 7 lacs, therefore plaintiff is directed to pay appropriate court fees on the same. Consequently, this issue is also decided in favour of the defendant and against the plaintiff.
RELIEF
38.In view of my findings on above issues, the suit of the plaintiff is dismissed with no order as to costs.
39.In view of the findings on issue no. 1, plaintiff is directed to pay the deficient court fee(s) on the amount of Rs. 7 lacs within one month from today and decree be prepared only after the plaintiff deposits the above mentioned deficient court fee(s).
Suit No. 389/12Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.
2940.File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 16.05.2013 ADJ(Central03)
Delhi/16.05.2013
Suit No. 389/12
Sh. Amrik Singh Vs. Sh. Umesh Chand Gupta.