Delhi District Court
Ms. Rajinder Kaur vs Sh. Mohinder Singh & Ors on 25 July, 2022
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ 7/2019
In the matter of :
Ms. Rajinder Kaur ..... Plaintiffs
Versus
Sh. Mohinder Singh & Ors. ......Defendants
ORDER
1. By this order I shall dispose of an application under Order VII Rule 11 CPC, r/w Section 41 of the Specific Relief Act, 1963 and Section 151 CPC, filed on behalf of defendant no.4 seeking rejection of the suit of plaintiff.
2. Brief facts of the case are that plaintiff filed the present suit seeking declaration of sale deed / agreement to sell and purchase dated 27.08.2018 executed by CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 1 of 18 defendant no.1 in favour of defendant no.5 as null and void; plaintiff also seeking permanent injunction restraining the defendant no.1 to 5 from taking the forceful and illegal possession of the suit property from the plaintiff without due process of law and also restraining the defendant no.1 to 5 from creating any third party interest in the suit property bearing no.1402-F/13, Govindpuri, Kalkaji, New Delhi, measuring about 100 sq. yards. By way of present, plaintiff also seeking permanent injunction restraining the defendant no.4 from representing himself as son of deceased Ranjit Singh and also seeking mandatory injunction directing defendant no.1 to 5 not to interfere in peaceful and lawful possession of the plaintiff in the suit property.
2.1 Plaintiff is daughter-in-law of defendant no.1 being wife of deceased son of defendant namely Sh. Ranjit Singh, sister-in-law (Bhabhi) of defendant no.2 and 3 and auntie (Maami) of defendant no.4.
2.2 Plaintiff claiming to be the owner and in possession of the suit property bearing no.1402-F/13, Govindpuri, Kalkaji, New Delhi. Plaintiff further claimed that she purchased the suit property from defendant no.1 by way of Agreement to sell & purchase, receipt in her favour and general power of attorney, affidavit and Will in the name of her deceased husband which were duly notarized. It is further stated that husband of plaintiff expired on 01.07.2018, thereafter plaintiff was receiving rent from the property in question. It is further stated that defendant no.1 CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 2 of 18 without authority and permission of the plaintiff has created third party interest in favour of the defendant no.5 on 27.08.2018 and he had executed sale deed illegally and unauthorizedly in favour of defendant no.5. After execution of sale deed dated 02.09.2018 defendant no.1 to 5 started trying to take forceful possession from the plaintiff and to this effect a police complaint was lodged.
3. Summons of suit were issued to defendants and upon service, they filed their written statements and denied the execution of documents i.e. Agreement to sell & purchase, receipt, general power of attorney, affidavit and Will in favour of the plaintiff and the plaintiff has founded the case on forged, fabricated and self-doctored documents and concealed the material facts, therefore, present suit may be dismissed with cost.
4. Replication was filed by the plaintiff in response of the written statement of the defendants. The plaintiff denied the objections as well as the material averments contained in the written statements. The averments contained in the plaint were reiterated as correct in the replication.
5. It is averred in the application that the present suit is not maintainable in the eyes of law and is barred by Limitation. It is stated in the application that the plaintiff has purchased the suit property in the name of defendant no.1 in the year 1996, therefore, the cause of action arises CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 3 of 18 in the year 1996 and hence is barred by Limitation.
5.1 It is further stated that defendant no.1 allegedly sold the suit property to the husband of the plaintiff in the year 1998 by way of GPA, Affidavit and Will which are not registered documents and they do not confer any title in view of the fact that the defendant no.1 has out rightly rejected execution of any such documents and the said documents came to the knowledge of defendant no.1 only by way of the present suit and police complaints. Therefore, if the husband of the plaintiff allegedly has any right on the basis of the alleged forged documents, the plaintiff should have filed a suit for declaration, possession or specific performance within the period of limitation from the date of execution of the said documents. Hence, the suit is barred by limitation.
5.2 It is further averred that the suit property was purchased in the year 1994 and not in the year 1996, however, the registration of the documents of title were executed by its erstwhile owner in favour of defendant no.1 in the year 1996. Therefore, the averments made by the plaintiff are false and frivolous and hence, the suit may be dismissed.
5.3 That the suit of the plaintiff is without the requisite court fee and hence, it is liable to be dismissed under Order VII Rule 11 CPC. The plaintiff has sought the relief of cancellation of sale deed dated 27.08.2018 and the CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 4 of 18 consideration amount mentioned in the sale deed is Rs.65 Lacs, therefore, the plaintiff is liable to pay ad-valorum court fee on the consideration amount.
5.4 It is further stated that the plaintiff has not come to the court with clean hands and has suppressed material facts from this court. The plaintiff has concealed the fact that she was not in possession of the suit property at the time of filing of the suit hence, the suit deserves to be dismissed under Section 41(i) of Specific Relief Act, 1963.
5.5 It is also stated that prior to the filing of the present suit, the plaintiff had also filed a civil suit before Ld. ASCJ, South East District, Saket bearing CS No.1101/18 and in the said suit the plaintiff sought to be declared the lawful owner of the suit property. The title of the suit property is disputed as per the plaintiff herself and therefore, she sought the said relief from the said court in the said suit. Therefore, the plaintiff cannot file a simpliciter suit for cancellation of the sale deed dated 27.08.2018 and in the garb of the same seek title and possession of the suit property, the plaintiff has not availed the efficacious remedy available to her as per law. Hence, the suit is liable to the dismissed u/s. 41(h) of Specific Relief Act.
5.6 It is further stated that the plaintiff in order to mislead this court concealed that the portion of the suit property has been sealed by the Police and proceedings u/s. 145 Cr.PC have already been initiated between the parties, CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 5 of 18 which needs to be adjudicated by Ld. SDM, Kalkaji, New Delhi, therefore, the alleged claim of the plaintiff being in physical possession of the suit property is false and the suit is liable to be dismissed.
5.7 It is stated that since the title as well as the possession is disputed, therefore, the plaintiff should have availed the efficacious remedy to file a suit for declaration, possession and consequent relief of cancellation of sale deed dated 27.08.2018, hence the suit is liable to be dismissed.
5.8 That the plaintiff has filed the case on certain forged and fabricated documents alleged to be executed by defendant no.1 whereas defendant no.1 had never executed any document in favour of plaintiff. It is stated that the plaintiff has filed this case on the fact that the husband of the plaintiff was the owner of the suit property had he had been collecting rent of the suit property with her consent, whereas the plaintiff had estranged relations with her husband and the plaintiff had even denied her husband to enter the suit property, which the husband of the plaintiff had purchased. It is prayed that the suit may be dismissed with costs.
6. Reply to the said application has been filed by the plaintiff wherein the contents of the application are denied as incorrect and wrong.
CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 6 of 18 6.1 It is denied that the suit is barred by limitation. It is submitted that the suit is well within time as the defendants tried to make possession of the suit property from the plaintiff without due process of law on the date mentioned in the suit. It is denied that the remedy available for the plaintiff is to file suit for declaration, possession or specific performance. The plaintiff is in possession of the suit property and she is not liable to file a suit for possession or declaration as stated. It is a matter of trial if the documents have been executed or not or are forged one. It is denied that the registration of the documents were done in 1996 and the property was purchased in 1994. The property was sold and immediately registration of the documents was completed.
6.2 It was further denied that the suit of the plaintiff is without requisite court fee. It is submitted that plaintiff is not party to the sale deed, so she has not paid the court fee on the amount mentioned in the documents. It is denied that the plaintiff has not come to the court with clean hands or the plaintiff is not in possession of the suit property. Rest of the contents of the application have been refuted and denied as wrong.
7. Ld. Counsel for the plaintiff has relied upon the case laws titled as State of Andhra Pradesh & Ors. Vs. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 and Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund (2007) 13 SCC 565.
CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 7 of 18 7.1 Ld. Counsel for the defendant has relied upon the case laws of Hon'ble High Court of Delhi titled as Vidhur Impex and Trader Pvt. Ltd. Vs. Pradeep Kumar Khanna and Ors decided on 28.06.2017 and Ashoka Industries Vs. Rajinder Pershad Sharma decided on 28.03.2011. Ld. Counsel further relied upon the case laws reported in 1999 AIHC470 (Mad) Nesammal and Anr. Vs. Edward and Anr.
8. I have heard counsel for the parties and gone through the material on record carefully as well as case law relied on by Ld. Counsel for plaintiff.
9. Before proceedings further it would be appropriate to discuss the provisions of Order VII Rule 11 CPC qua rejection of plaint and there is settled law on this aspect which are as under:
Order VII Rule 11 Code of Civil Procedure - The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 8 of 18 the Court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
10. Hon'ble Supreme Court in Salim Bhai Vs. State of Maharashtra AIR 2003 SC 557 held as under:
"Perusal of Order VII Rule 11 CPC makes it clear that relevant fact which need to be looked into for deciding an application thereunder are the averments in the plaints. The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under Clause (a) and Clause (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in written statement would be wholly irrelevant at that stage."
11. Hon'ble Supreme Court in I.T.C. Ltd. Vs. Debts CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 9 of 18 Recovery Appellate Tribunal [(1998) 2 SCC 70] wherein the Apex Court was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.
"The trial court must remember that if on a meaningful - no formal- reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC.
It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi Vs. Nachhattar Singh Gill [(1982)3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
In Raptakos Brett & Co. Ltd. Vs. Ganesh Property [(1998) 7 SCC 184] it CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 10 of 18 was observed that the averments inn the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 was applicable.
12. In Sopan Sukhdeo Sable Vs. Asstt.
Charity Commr. [(2004) 3 SCC 137] Hon'ble Apex Court held which is as under:
"There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities."
13. Mainly the plaintiff has filed the present suit CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 11 of 18 claiming the ownership and in possession of property on the basis of unregistered Agreement to Sell & Purchase and Receipt in her favour and G.P.A and Will and Affidavit in favour of her deceased husband which are allegedly executed by defendant no.1 and were duly notarized. Further plaintiff being in possession were getting rent after letting out the property since 1998 and after the death of husband of plaintiff, the tenant started paying rent to the plaintiff.
14. Before delving into the appreciation of facts and arguments, I deem it fit to refer Section 31 of Specific Relief Act, 1963, which reads as under:
Section 31; when cancellation may be ordered.
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such office shall note on the copy of the instrument CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 12 of 18 contained in his books the fact of its cancellation.
14.1 On a bare reading of the above provision what can be clearly understood, is that, to be entitled for cancellation of an instrument, such instrument should be found to be void or voidable as against the plaintiff. In other words the entire locus of the party seeking to set aside the instrument is based on the assumption that the document under challenge is void / voidable against her. Therefore, at this juncture it becomes necessary to discuss the import of the words 'void and voidable'.
14.2 For this purpose reference to Indian Contract Act, 1872 is inevitable. A void agreement is simply and agreement which in unenforceable in law, on the other hand a voidable contract is one which is valid till the time one of the party to the contract chooses to rescind or avoid it. In any case both these concepts are applicable to a 'party to the contract', and not a third party, meaning thereby that only a contracting party has a locus to set aside a contract by way of cancellation. However in the present case admittedly the plaintiff is not a party which is the document / registered sale deed sought to be cancelled by the plaintiff, rather defendant no.1 and 5 are the executants. Hence, this court do not find that the plaintiff has the locus to seek cancellation of the Sale deed. Plaintiff claims to be the true owner of the suit property, on the strength of documents, which are unregistered agreement to sell & CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 13 of 18 purchase, receipt, general power of attorney, affidavit and Will, executed by defendant no.1 in favour of the plaintiff. It is the contention of the plaintiff that she purchased the suit property from defendant no.1 on 29.01.1998. As per the averments of plaint, the plaintiff allegedly purchased the suit property by way of agreement to sell and receipt for consideration along with all the other acts pertaining to the suit property and at that point of time the relationship between the plaintiff and defendant no.1 was cordial. She claims nullity of registered sale deed dated 27.08.2018, executed by defendant no.1 in favour of defendant no.5, on the grounds that defendant no.1 did not have any right or title in the suit property, hence he could not have passed a better title to defendant no.5.
14.3 The question for consideration before this court is if the plaintiff has been able to show a better title based on an unregistered Agreement to Sell and Receipt in her favour and G.P.A, Affidavit of Sale and Will in favour of her deceased husband as against a registered document.
14.4 For this purpose reference to Section 50 of Registration Act, 1908 becomes inevitable, which is reproduced below for ready reference:
"50. Certain registered documents relating to land to take effect against unregistered documents;
(1) Every document of the kinds mentioned in clauses (a) and (b) of Section 18, shall, if CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 14 of 18 duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.
(2) Nothing in subsection (1) applies to leases exempted under the proviso to subsection (1) of section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.
Explanation: In cases where Act No.16 of 1864 or the Indian Registration act, 1866 (20 of 1866), was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871 not registered under the Indian Registration act, 1871 (8 of 1971), or the Indian Registration act, 1877 (3 of 1977), or this Act.
14.5 Section 50 above refers to documents as entailed CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 15 of 18 under Section 17 Rule 1(a), (b), (c) which is a Section drafted for compulsory registration of certain documents and a document like a sale deed which comprises in itself transfer or conveyance of any immovable property would squarely fall under the ambit of Section 17 Rule 1(a), (b), (c) of Registration Act.
14.6 The mandate of Section 50 of Registration Act is crystal clear that any registered document shall get precedence against every unregistered document relating to the same property.
15. In the present case as well the alleged G.P.A, Affidavit and Will in favour of her deceased husband and Agreement to Sell and Receipt in favour of plaintiff merely unregistered documents and is pitted against a registered sale deed which in itself, is a valid proof of conveyance of suit property and would in any case carry more weight and value as compared to an unregistered G.P.A., Agreement to Sell, Will, Receipt, Affidavit etc. Moreover, plaintiff although claims to have paid the consideration herself to defendant no.1 while Agreement to Sell was executed, the receipt of such payment is in name of plaintiff. Hence apart from the Agreement to Sell and Receipt dated 29.01.1998, plaintiff has not brought on record any other document to prove her ownership on the suit property. Consequently, it cannot be said that unregistered Agreement to Sell and Receipt of the plaintiff gives a better title to the plaintiff as against a registered sale deed. In view of the above discussion it CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 16 of 18 cannot be said that the plaintiff has a cause of action against the registered owner.
16. Moreover, it may be seen that admittedly plaintiff had filed a civil suit before Ld. ASCJ, South-East, Saket Courts, New Delhi wherein plaintiff stated to be declared lawful owner of the suit property which shows that title of the property is disputed that is why she filed that previous suit with the aforesaid relief, therefore, on the basis of unregistered documents i.e. unregistered agreement to sell and sale deed. Plaintiff can not file simplicitor suit of declaring the sale deed dated 27.08.2018 as null and void and in the garb, present suit plaintiff cannot be allowed to seek the title and possession of the suit property rather plaintiff should avail efficatious remedy available to her as per law. Therefore, suit of the plaintiff is also liable to be rejected in view of the provision of Section 41(h) of Specific Relief Act.
17. So far as the case laws relied upon by Ld. Counsel for the plaintiff is concerned, the aforesaid case laws hold the correct proposition of law, but distinguished from the facts and circumstances of the case in hand and, therefore case laws do not help the defendant.
18. Hence, it can be fairly said that since the suit of the plaintiff lacks cause of action against the present defendants and also barred by Section 41(h) of the Specific Relief Act. Consequently, the suit of the plaintiff is CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 17 of 18 rejected under Order VII rule 11(a) and 11(d) of Code of Civil Procedure for want of cause of action and barred by law against the present defendant. Application stands disposed off accordingly.
File be consigned to record room.
Announced in the open (LALIT KUMAR) Court on 25.07.2022. Additional District Judge-04 Saket Courts, New Delhi CS 7/19 dt. 25.07.2022 Rajinder Kaur Vs. Mohinder Singh page no. 18 of 18