Delhi District Court
Sh. Ram Avtar Aggarwal vs Sh. Raj Singh Malik (Since Deceased) on 15 September, 2022
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET COURTS, DELHI
Presided By: Mr. Jay Thareja, DHJS
Civil Suit No: 208149/2016
1. Sh. Ram Avtar Aggarwal
Since deceased
Represented through:
A. Ms. Meenu Aggarwal (wife)
B. Ms. Dhani Aggarwal (daughter)
C. Ms. Easty Aggarwal (daughter)
All R/o B15, Lajpat NagarII,
New Delhi110024.
2. Smt. Sharda Gupta
W/o Sh. Subhash Gupta
R/o B18, Lajpat NagarII,
New Delhi110024.
.....Plaintiffs
Versus
1. Sh. Raj Singh Malik (since deceased)
Through his legal heirs:
a. Ms. Raj Bala (widow)
b. Sh. Rakesh Malik
Both R/o 1, B Block, Village Masoodpur,
Vasant Kunj, New Delhi110070.
2. M/s. OCKLEAF Developers Pvt. Ltd.
3. Sh. Ram Kumar Dilawari
Director
M/s. OCKLEAF Developers Pvt. Ltd.
4. Smt. Swarna Dilawri
Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 1 of 37
Director
M/s. OCKLEAF Developers Pvt. Ltd.
Defendant no.2 to 4 at:
C4/16, Safdarjung Development Area,
New Delhi110016.
Defendant no.2 to 4 also at:
Sh. Manish Aggarwal Adv.
Chamber No.326, Delhi High Court,
Sher Shah Suri Marg,
New Delhi
Also at:
419, Sector37,
Faridabad, Haryana.
5. Sh. Naresh Kumar
S/o Sh. Padam Singh
R/o 1/4091, Khera Bhagwanpur,
Loni Road, Shahadara, Delhi.
6. Sh. Manik Gambhir (since deceased)
Through his legal heirs:
a. Ms. Pooja Gambhir (widow) aged 43 years
b. Ms. Tanisha Gambhir (daughter) aged 17 years
c. Ms. Rehana Gambhir (daughter) aged 11 years
D. Ms. Sudesh Gambhir (mother) aged 73 years
All R/o 114A, the Aralias, DLF Golf Link,
DLF Phase 5, Sector 42, Gurugram, Haryana.
7. Ms. Deepti Sharma
D/o Sh. Anil Kumar Sharma
R/o 133A, Flat No.14, Saidulajab,
Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 2 of 37
Western Marg, Saket, New Delhi110012.
.....Defendants
SUIT FOR DECLARATION, INJUNCTION ETC.
DATE OF INSTITUTION : 08.02.2012
DATE OF FINAL ARGUMENTS : 25.08.2022
DATE OF DECISION : 15.09.2022
JUDGMENT
1. The plaintiffs have filed this suit against the defendants, seeking reliefs of declarations and injunctions. The exact prayer made by the plaintiffs, in the plaint of this suit, is reproduced below:
"In the facts and circumstances it is most respectfully prayed that this Hon'ble Court may graciously be pleased to.
A. Pass a decree of Declaration in favor of the plaintiffs, declaring thereby that the Plaintiffs are the bonafide owners of the suit property i.e. N128, Greater KailashI, New Delhi.
B. Pass a decree of Declaration in favor of the Plaintiffs and against the Defendants declaring thereby that the Sale Deed dated 30.10.1987 allegedly registered as Document No.4733, Book No.I, Volume No.4812, pages 185187 with the SubRegistrarI, Kashmere Gate, Delhi on 30.10.1987 allegedly executed between Shri Purshottam Nagesh Oak and Defendant No.1 is fake, forged and fabricated, null and void and consequently the Sale Deed dated 28.06.2011 allegedly executed by Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 3 of 37 Defendant No.1 in favor of Defendant No.2 in respect of the property N128, Grater KailashI, New Delhi registered as Document No.13661, Book No.1, Volume No.11427, at pages 23 to 34 with the SubRegistrar, Mehrauli, New Delhi is void and is nullity.
C. Pass a decree of permanent injunction in favor of Plaintiffs and against the Defendants thereby restraining the Defendant No.1 to 4 from using in any form, the Sale Deed dated 30.10.1987 and Sale Deed dated 28.07.2011 aforesaid anywhere and not to create any third party interest in any form in the suit property and these documents may kindly be directed to be impounded by this Hon'ble Court.
D. Pass a decree of declaration in favor of the Plaintiffs and against the Defendants declaring thereby that the Deed of General Power of Attorney allegedly issued by Shri Purshottam Nagesh Oak in favor of Defendant No.6 allegedly registered with the SubRegistrar, Pingla, West Midnapur, West Bengal as Document No.7, Book No.1, Volume No.IV, Pages 1318 dated 16.04.1983 and Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 16.07.1983 alleged to have been executed by Shri Purshottam Nagesh Oak in favor of the Defendant No.6 are forged, fabricated, null and void and consequently, the General Power of Attorney in favor of Defendant No.5 allegedly registered as Document No.13, Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 4 of 37 Book No.4, Volume No.41, Pages 2731, dated 16.02.2002 and Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 17.04.2001 as forged, fabricated, null and void and these documents may kindly be directed to be impounded by this Hon'ble Court.
E. And consequent thereto pass a decree of declaration in favor of the Plaintiffs and against the Defendants declaring thereby the Sale Deed dated 28.06.2011 registered as Document No.10052, Book No.1, Volume No.11270, Pages 3847, dated 02.07.2011 in favor of Defendant No.7 is null and void and these documents may kindly be directed to be impounded by this Hon'ble Court.
F. Pass a Decree of Permanent Injunction in favor of the Plaintiffs and against the Defendants No.5, 6 & 7 restraining them from using in any form the documents viz. Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 16.07.1983 allegedly executed by Shri Purshottam Nagesh Oak in favor of Defendant No.6 and Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 17.04.2001 allegedly executed by Defendant No.6 in favor of Defendant No.5 and Sale Deed dated 28.06.2011 registered as Document No.10052, Book No.1, Volume No.11270, Pages 3847, dated 02.07.2011 executed by Defendant No.5 in favor of Defendant No.7 and direct that the said documents may be impounded.
G. Pass a decree of permanent injunction in favor of Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 5 of 37 Plaintiffs and against the Defendants thereby restraining the Defendants / their agents / employees / managers / assigns / legal heirs / etc. from alienating / disposing off / creating any third party interest in the suit property and from interfering in the peaceful possession of the plaintiffs in the suit property.
H. Award the cost of the proceedings in favor of the Plaintiffs and against the Defendants. "
2. In order to justify the grant of the aforesaid reliefs, the plaintiffs have interalia pleaded in the plaint of this suit that the plaintiffs are the owners in possession of property no. N128, G.K.I, New Delhi (henceforth 'the suit property'); that the land forming part of the suit property was initially owned by DLF Housing Constructions Ltd.; that vide sale deed dated 03.03.1962, DLF Housing Constructions Ltd. had sold the said land to Sh. Purshottam Nagesh Oak (henceforth 'Sh. P.N. Oak'); that Sh. P.N. Oak had constructed the building, forming part of the suit property, after getting a site plan sanctioned from the MCD, in 1966; that vide an unregistered agreement to sell executed in favour of Sh. N.K. Bindra and a registered GPA executed in favour of Sh. Ashok Bhaduria, on 12.09.1988, Sh. P.N. Oak had sold the ground floor of the suit property to Sh. N.K. Bindra; 1 that 1 The said plea is untenable in view of the judgments of the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2012) 1 SCC 656, Greater Bombay Cooperative Bank Ltd. v Nagraj Ganeshmal Jain & Ors. (2017) 15 SCC 316 and Shiv Kumar v Union of India, (2019) 10 SCC 229, all laying down/reiterating law to the effect that there cannot be transfer of title qua an immovable property through an agreement to sell, GPA etc. transaction. Similar views can be found in the judgments of the Hon'ble High Court of Delhi in DDA v Kumud Makhija (through LRs), (2018) SCC OnLine Del 11075, Bishan Chand v Ved Prakash (through LRs) (2018) 172 DRJ 420, Saroj Aggarwal v Mehar Singh & Ors., (2018) SCC Online Del 12022 and Haji Abdul Mateen (Deceased) through LRs v Rattan Singh, (2018) SCC OnLine Del 12268.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 6 of 37 vide an unregistered agreement to sell executed in favour of Batra Jairath Properties and a registered GPA executed in favour of Sh. Dharam Vir Vaid, on 12.09.1988, Sh. P.N. Oak had sold the first floor of the suit property to Batra Jairath Properties;2 that vide an unregistered agreement to sell executed in favour of Sh. Sunil Gupta (HUF) and a registered GPA executed in favour of Sh. Subhash Mitter Jairath, on 12.09.1988, Sh. P.N. Oak had sold the second floor of the suit property to Sh. Sunil Gupta (HUF);3 that vide two separate registered sale deeds dated 20.02.1989, Sh. N.K. Bindra had sold half of the ground floor of the suit property to the plaintiff no. 1 and the other half of the ground floor of the suit property to Smt. Sheela Devi;4 that later vide three registered sale deeds dated 07.11.2001, Smt. Sheela Devi had sold her half share of the ground floor of the suit property to the plaintiff no. 1; that as such, the plaintiff no. 1 had become the absolute owner of the ground floor of the suit property; that vide two separate registered sale deeds dated 15.02.1989, Batra Jairath Properties had sold half of the first floor of the suit property to the plaintiff no. 2 and the other half of the first floor of the suit property to Smt. Neeta Jain;5 that later, vide two registered sale deeds dated 15.03.1993, 2 The said plea is also untenable in view of the judgments of the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2012) 1 SCC 656, Greater Bombay Cooperative Bank Ltd. v Nagraj Ganeshmal Jain & Ors. (2017) 15 SCC 316 and Shiv Kumar v Union of India, (2019) 10 SCC 229, all laying down/reiterating law to the effect that there cannot be transfer of title qua an immovable property through an agreement to sell, GPA etc. transaction.
3 The said plea is also untenable in view of the judgments of the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2012) 1 SCC 656, Greater Bombay Cooperative Bank Ltd. v Nagraj Ganeshmal Jain & Ors. (2017) 15 SCC 316 and Shiv Kumar v Union of India, (2019) 10 SCC 229, all laying down/reiterating law to the effect that there cannot be transfer of title qua an immovable property through an agreement to sell, GPA etc. transaction.
4 The said pleading is incorrect. A perusal of the two separate sale deeds dated 20.02.1989, reflects that they were executed by Sh. P.N. Oak, through his attorney, Sh. Ashok Bhaduria in favour of the plaintiff no. 1 and Smt. Sheela Devi. Whether the attorney, Sh. Ashok Bhaduria was authorized to execute the said sale deeds, is a matter that requires deeper consideration, which has been done in the latter part of this judgment.
5 The said pleading is incorrect. A perusal of the two separate sale deeds dated 15.02.1989, reflects Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 7 of 37 Smt. Neeta Jain had sold her half share of the first floor of the suit property to the plaintiff no. 2; that as such, the plaintiff no. 2 had become the absolute owner of the first floor of the suit property; that vide two separate registered sale deeds dated 12.12.1988, Sh. Sunil Gupta (HUF) had sold half of the second floor of the suit property to the plaintiff no. 2 and the other half of the second floor of the suit property to Smt. Shrimati Jain;6 that later, vide a registered sale deed dated 15.03.1993, Smt. Shrimati Jain had sold her half share of the suit property to the plaintiff no. 2; that as such, the plaintiff no. 2 had become the absolute owner of the second floor of the suit property; that since inception of their purchase of the different floors of the suit property, the plaintiffs have been in uninterrupted and exclusive possession of the suit property, without any interference from any corner; that the plaintiff no. 1 has a water connection in his own name, at the suit property; that the plaintiff no. 1 has an electricity connection in his own name, at the suit property; that the ground floor of the suit property stands mutated in the name of the plaintiff no. 1 vide letter no. TAX/CNZ/2010/50 dated 04.04.2011 issued by MCD; that the request for mutation of the first floor and second floor of the suit property in favour of the plaintiff no.1 is pending for approval; that the plaintiff no. 1 has been regularly paying the water bills, electricity bills and the house tax qua the ground floor of the suit property; that the original of the sale deed dated 14.03.1962 was lost by Sh. P.N. Oak; that Sh. P.N. Oak had confirmed the said fact by that they were executed by Sh. P.N. Oak, through his attorney, Sh. Dharam Vir Vaid in favour of the plaintiff no. 2 and Smt. Neeta Jain. Whether the attorney, Sh. Dharam Vir Vaid was authorized to execute the said sale deeds, is a matter that requires deeper consideration, which has been done in the latter part of this judgment.
6 The said pleading is incorrect. A perusal of the two separate sale deeds dated 12.12.1988, reflects that they were executed by Sh. P.N. Oak, through his attorney, Sh. Subhash Mitter Jairath in favour of the plaintiff no. 2 and Smt. Shrimati Jain. Whether the attorney, Sh. Subhash Mitter Jairath was authorized to execute the said sale deeds, is a matter that requires deeper consideration, which has been done in the latter part of this judgment.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 8 of 37 executing an indemnity bond dated 12.09.1988 in favour of Sh. Sunil Gupta; that the plaintiff no. 1 had also lodged a complaint to such effect at PS Lajpat Nagar, on 29.04.2011; that since, the plaintiff no.1 was receiving threats qua the suit property, he had got published public notices in the newspapers, The Times of India and Navbharat Times as well as the newspapers Hindustan Times and the Hindustan, on 18.05.2011 and 12.05.2011 respectively, informing the general public that (a) the plaintiff no. 1 is the owner of the suit property, (b) the plaintiff no. 1 has found that certain unscrupulous persons have created forged and fabricated documents qua the suit property and (c) any person dealing with them, will be doing so at his own risk and peril; that in response to the aforesaid notices of the plaintiff no. 1, the defendant no. 1 had got published public notices in the newspapers, Times of India and Navbharat Times, on 29.06.2011, alleging his title qua the suit property; that in anticipation of the defendant no. 1 or any other person filing any false proceedings qua the suit property before the Hon'ble High Court of Delhi, the plaintiff no. 1 had lodged a caveat in the Hon'ble High Court of Delhi; that in time, the plaintiffs have come across two sets of title documents in respect of the suit property; that the first set of title documents has been created by the defendants no. 5 to 7; that the said set of title documents includes (a) registered GPA, unregistered agreement to sell, affidavit, receipt, possession letter and Will dated 16.04.1983 allegedly executed by Sh. P.N. Oak in favour of the defendant no. 6, before SubRegistrar, Paschim Medinipur, West Bengal, (b) registered GPA dated 16.02.2002 as well as agreement to sell, affidavit, receipt, possession letter and Will dated 17.04.2001, allegedly executed by the defendant no. 6 in favour of defendant no. 5, (c) registered sale deed dated 28.06.2011, executed by the defendant no. 5 in favour of the defendant no. 7 and (d) MOU dated 29.06.2011, executed between the defendant no. 5 and the defendant no. 7; that on the basis of the said first set of Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 9 of 37 documents, the defendant no. 5 has filed a suit viz. Suit No.1877/2011 before the Hon'ble High Court of Delhi against the plaintiff no. 1 and others, interalia admitting that since inception, the plaintiff no. 1 is in possession of the suit property and interalia seeking relief of possession qua the suit property and relief of cancellation of the sale deed dated 28.06.2011, executed by the defendant no. 5 in favour of the defendant no. 7; that the said first set of title documents is liable to be declared null and void by this Court, interalia because Sh. Manik Gambhir, son of the defendant no. 6, who had responded to notice dated 01.08.2011 sent by the plaintiff no. 1, has admitted that his father, had not done any transaction in respect of the suit property, because the plaintiffs have found out that the documents (a) and (b) of the first set of documents are completely forged documents as there was no Office of SubRegistrar, Paschim Medinipur, West Bengal established in 1983 (alleged year of execution of registered GPA by Sh. P.N. Oak in favour of defendant no. 6) and because there was no occasion for Sh. P.N. Oak as well as the defendants no. 5 and 6 to travel to Paschim Medinipur, West Bengal to get documents registered qua the suit property, which is located in SouthEast District of Delhi; that the second set of title documents has been created by the defendants no. 1 to 4; that the said set of title documents includes (a) registered sale deed dated 30.10.1987, allegedly executed by Sh. P.N. Oak in favour of the defendant no. 1, before the SubRegistrarI, Kashmiri Gate, Delhi (henceforth 'alleged sale deed dated 30.10.1987') and (b) registered sale deed dated 28.06.2011 7, executed by the defendant no.1 in favour of the defendant no. 2 company before the SubRegistrar, Mehraulli, New Delhi; that the said second set of documents is liable to be declared null and void by this Court, interalia because the SubRegistrarI, Kashmiri Gate, Delhi had no jurisdiction to register the alleged sale deed dated 30.10.1987, 7 The correct date of the said sale deed date is 25.08.2011.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 10 of 37 because through the investigation of FIR No. 137/11, PS G.K.I (registered at the instance of the plaintiff no. 1 qua the incident dated 16.10.2011 of trespass at the suit property), the plaintiffs have found that the alleged sale deed dated 30.10.1987 was never registered with the SubRegistrarI, Kashmiri Gate, Delhi and because through the investigation of FIR No. 137/11, PS G.K.I, the plaintiffs have found that the defendants no. 3 and 4 (directors of the defendant no. 2 company) along with Sh. Manish Aggarwal, Advocate have a modus operandi of usurping the properties of others through forged and fabricated documents; that in order to save the suit property, the plaintiffs have issued a legal notice dated 23.12.2011 to the defendants as well as the witnesses, who had signed the sale deeds of the defendants, requiring all of them to not use forged and fabricated documents qua the suit property; that the plaintiffs apprehend that the suit property continues to be under threat from the defendants and that in such circumstances, the plaintiffs are entitled to all the reliefs, sought by way of this suit.
3. Upon service of summons for settlement of issues qua the defendants, only the defendants no. 2 to 4 have effectively contested this suit by filing a joint written statement. The defendants no. 1, 5 and 7 have not filed any written statement. The defendant no. 6 has filed a written statement (through his son/legal representative, Sh. Manik Gambhir), admitting the case of the plaintiff. In the joint written statement of the defendants no. 2 to 4, it is interalia pleaded that the reliefs sought by way of this suit are barred by the law of limitation; that Sh. P.N. Oak had legitimately sold the suit property to the defendant no. 1 vide registered sale deed dated 30.10.1987, executed before the SubRegistrarI, Kashmiri Gate, Delhi; that the defendant no. 2 company has legitimately purchased the suit property from the defendant no. 1 vide registered sale deed dated 25.08.2011, executed before the Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 11 of 37 SubRegistrarV, Mehrauli, New Delhi; that upon purchase of the suit property by the defendant no. 2 company from the defendant no. 1, the vacant possession of the suit property was handed over by the defendant no. 1 to the defendant no. 3 (director of the defendant no. 2 company); that the defendants no. 3 and 4 are senior citizens residing at Canada; that the defendants no. 3 and 4 along with their son are doing the business of selling of cars in Canada; that in India they do business under the name and style of South Delhi Toyota, a unit of M/s. Hari Steel & General Industries Pvt. Ltd.; that immediately upon execution of the registered sale deed dated 25.08.2011 by the defendant no. 1 in favour of the defendant no. 2 company, the defendant no. 3 had gone back to Canada for an eye surgery; that on 16.10.2011, the defendant no. 2 company was shocked upon finding about the registration of FIR No. 137/11, PS G.K.I; that the defendants no. 2 to 4 have repeatedly asked the plaintiffs to hand over the possession of the suit property but the plaintiffs have refused to do so; that the defendants no. 2 to 4 are in the process of filing a suit for possession qua the suit property against the plaintiffs; that the defendants no. 2 to 4 are in possession of the original sale deed dated 05.03.1962 (sic) executed by DLF Housing Constructions Ltd. in favour of Sh. P. N. Oak and are willing to produce the same, as and when called for; that the entire chain of title documents qua the suit property, presented by the plaintiffs is unreliable interalia because it is fabricated and because no transfer of title qua an immovable property can be done through an agreement to sell/power of attorney transaction; that the plaintiffs are trespassers in respect of the suit property; that no mutation qua the first floor of the suit property has taken place in favour of the plaintiff no. 1; that all the public notices published by the plaintiffs in newspapers are false; that the SubRegistrarI, Kashmiri Gate, Delhi, had the jurisdiction to register the sale deed dated 30.10.1987, executed by Sh. P. N. Oak in favour of the Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 12 of 37 defendant no. 1; that the SubRegistrarI, Kashmiri Gate, Delhi has been suspended for giving wrong information to the police during the investigation of FIR No. 137/11, PS G.K.I; that the allegations made against Sh. Manish Aggarwal, Ld. Advocate in the plaint of this suit are absolutely false; that the other allegations made against the defendants no. 2 to 4 in the plaint of this suit qua usurping of the properties of others are also absolutely false; that none of the documents relied upon by the defendants 2 to 4 are forged and that in such circumstances, this Court should dismiss this suit with costs in favour of the defendants no. 2 to 4. 8
4. In the written statement of the defendant no. 6 (which has been filed by his son/legal representative, Sh. Manik Gambhir) it is interalia pleaded that the defendant no. 6 had expired on 24.03.2008, almost four years prior to institution of this suit; that the defendant no. 6 had no right title or interest in respect of the suit property; that the defendant no. 6 had never executed any document in respect of the suit property; that the plaintiffs have filed this suit in order to harass and blackmail the legal heirs of the defendant no. 6; that all these facts were disclosed by Sh. Manik Gambhir to the police officials of PS G.K.I, who were investigating FIR No.137/11 and to the plaintiff no. 1 vide reply to the notice dated 01.08.2011 and that in such circumstances, this suit should be dismissed qua the defendant no. 6, with exemplary costs.
5. In the replication qua the joint written statement of the defendants no. 2 to 4, the plaintiffs have traversed the contents of the said written statement, made 8 It is noteworthy that the joint written statement of the defendants no. 2 to 4 is not supported with any affidavit of the defendant no. 4, Smt. Swarna Dilawari and that the verification at the foot of the written statement of the defendants no. 2 to 4 also does not bear any signatures of the defendant no. 4, Smt. Swarna Dilawari.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 13 of 37 the necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiffs have pleaded that the reliefs sought by way of this suit are not barred by the law of limitation because the plaintiffs have found out about all the impugned documents qua the suit property in 2011; that despite service of a legal notice, the defendants no. 2 to 4 have not produced the original documents qua the suit property, pleaded to be in their possession and that since inception, the plaintiffs have been in settled possession of the suit property.
6. On the basis of the aforesaid pleadings of the parties, the following issues were framed by the Hon'ble High Court of Delhi, in this suit, on 31.07.2014 and 16.10.2014:
"1. Whether the suit of the plaintiffs is barred by limitation? OPD2
2. Whether the plaintiffs are owners of the suit property, i.e. bearing no. N128, Greater KailashI, New Delhi? OPP
3. Whether the plaintiffs are entitled to decree for declaration that the sale deed dated 30 th October, 1987 allegedly registered and executed between Sh.
Purshottam Nagesh Oak and defendant no.1 and the sale deed dated 28th June, 2011 executed by defendant no.1 in favour of defendant no.2 as fake, forged, fabricated and null & void? OPP
4. Whether the plaintiffs are entitled to decree for permanent injunction as prayed for? OPP
5. Whether the documents i.e. the General Power of Attorney dated 16th April, 1983 and Agreement to Sell, Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 14 of 37 Affidavit, Receipt, Possession Letter and Will dated 16 th July, 1983 and further dated 17th April, 2001 are invalid documents as claimed by the plaintiff? OPP
6. Whether the suit is barred by limitation? OPD
7. Relief."9
7. During the trial of this suit, 10 witnesses viz. PW1 Ms. Dhani Aggarwal, PW2 Sh. Shashank Bhandri, PW3 Ms. Anchana Arora, PW4 Sh. Naveen Gandas, PW5 Sh. Hirdesh Kumar Gupta, PW6 Sh. Praveen Kumar Rana, PW7 Sh. Rajeev Kumar Sinha, PW8 Abdul Rahaman Khan, PW9 Sh. Surya Prakash Sharma and PW10 Sh. Narender Kumar were examined in support of the case of the plaintiffs and three witnesses viz. DW1 Sh. Manik Gambhir, DW2/1 Sh. Hira Lal and DW3 Sh. Sanjay Kumar Malik were examined in support of the case of the contesting defendants.
8. During the examinationinchief, PW1 Ms. Dhani Aggarwal had deposed in line with the plaint of this suit and tendered in evidence a total of 86 documents referred in her evidence affidavit, Ex.PW1/A. 10 During cross examination by the Ld. Advocate defendants no. 2 to 4, PW1 Ms. Dhani Aggarwal had interalia deposed that the plaintiff no. 1 has left behind two children; that her evidence affidavit, Ex.PW1/A was prepared by her Advocate at her instructions; that she had stayed at the suit property when she was 23 years old; that she only 9 It is relevant to note that on 16.10.2014, when Hon'ble High Court of Delhi was reconsidering the issues framed in this suit, on 31.07.2014, the defendants no. 2 to 4 had not pressed for framing of any other issues and therefore, it is to be assumed that the issues framed in this suit, on 31.07.2014 and 16.10.2014 were as per the satisfaction of the defendants no. 2 to 4. 10 The details of the said documents have been narrated in the index filed alongwith the evidence affidavit, Ex.PW1/A as well as in the evidence affidavit, Ex.PW1/A of PW1 Ms. Dhani Aggarwal. They are not being reproduced in this judgment, for the sake of brevity.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 15 of 37 has the electricity bills, water bills and MCD receipts to show possession of her family qua the suit property; that the aadhar card, Ex.PW1/DX reflects that the plaintiff no. 1 had resided at the suit property; that her family had not done any construction at the suit property; that after the death of her father viz. plaintiff no. 1, she, her sister and her mother have inherited the ground floor of the suit property and the rest of the suit property belongs to the plaintiff no. 2, who is her paternal aunt (Taee Ji); that she does not remember the exact dates of the previous transactions qua the suit property; that she had never seen the defendants no. 3 and 4 and that it is wrong to say that she has deposed falsely in this Court. Despite grant of opportunity, the defendant no. 1 and the Ld. Advocate for the defendant no. 6 had chosen not to crossexamine PW1 Ms. Dhani Aggarwal. 11
9. During examinationinchief, PW2 Sh. Shashank Bhandari, official of the Hon'ble High Court of Delhi had merely placed on record the certified copy of the plaint of Suit No. 1877/2011 (filed by the defendant no. 5 before the Hon'ble High Court of Delhi) which had already been tendered in evidence by PW1 Ms. Dhani Aggarwal as Ex.PW1/65. Despite grant of opportunity, the Ld. Advocates for the defendants no. 2 to 4 and the defendant no. 6 had chosen not to cross examine, PW2 Sh. Shashank Bhandari.
10. During examinationinchief, PW3 Ms. Anchana Arora, official of BSES Rajdhani Power Ltd. had interalia deposed that as per the record of BSES Rajdhani Power Ltd., the electricity connection bearing CA No.150035646 is in the 11 In my view, the testimony of PW1 Ms. Dhani Aggarwal cannot be read in favor of the plaintiff no.2 because she is not an attorney of the plaintiff no.2 and because from her testimony, it is obvious that she was not privy to the execution of the title documents qua the first and second floor of the suit property, propounded by the plaintiff no.2.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 16 of 37 name of the plaintiff no. 1, Sh. Ram Avtar Aggarwal and the bills, Ex.PW1/19 to Ex.PW1/22 pertain to the said electricity connection. During crossexamination by the Ld. Advocate for the defendants no. 2 to 4, PW3 Ms. Anchana Arora had inter alia deposed that the electricity connection bearing CA No.150035646 was installed in May 2011 and that she cannot state if the said electricity connection was only for ground floor of the suit property. Despite grant of opportunity, the Ld. Advocate for the defendant no. 6 had chosen not to crossexamine, PW3 Ms. Anchana Arora.
11. During examinationinchief, PW4 Sh. Naveen Gandas, Record Keeper, Office of Department of Delhi Archives had merely placed on record (a) the copies of the two registered sale deeds dated 20.02.1989 executed by Sh. P.N. Oak through his attorney Sh. Ashok Bhaduria in favour of the plaintiff no. 1 and Smt. Sheela Devi, which had already been tendered in evidence by PW1 Ms. Dhani Aggarwal as Ex.PW1/3 and Ex.PW1/4, (b) registered GPA dated 12.09.1988, executed by Sh. P.N. Oak in favour of Sh. Ashok Bhaduria, which had already been tendered in evidence by PW1 Ms. Dhani Aggarwal as Ex.PW1/5, (c) registered sale deed dated 15.02.1989 executed by Sh. P.N. Oak through his attorney Sh. Dharam Vir Vaid in favour of the plaintiff no. 2, which had already been tendered in evidence by PW1 Ms. Dhani Aggarwal as Ex.PW1/9 and (d) registered sale deed dated 15.03.1993 executed by Smt. Shrimati Jain in favour of the plaintiff no. 2, which had already been tendered in evidence by PW1 Ms. Dhani Aggarwal as Ex.PW1/17. During crossexamination by the Ld. Advocate for the defendants no. 2 to 4, PW4 Sh. Naveen Gandas had deposed that he has simply brought the record and he has no personal knowledge regarding this suit.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 17 of 37
12. During examinationinchief, PW5 Sh. Hirdesh Kumar Gupta, employee of DLF Ltd. had tendered in evidence an entry, Ex.PW5/A(OSR) in respect of the sale deed dated 03.03.1962 executed by DLF Housing Construction Ltd. in favour of Sh. P.N. Oak. During crossexamination by the Ld. Advocate for the defendants no. 2 to 4, PW5 Sh. Hirdesh Kumar Gupta had clarified that DLF Ltd. does not have the copy of the sale deed dated 03.03.1962. Despite grant of opportunity, the Ld. Advocate for the defendant no. 6 had chosen not to cross examine, PW5 Sh. Hirdesh Kumar Gupta.
13. During examinationinchief, PW6 Sh. Praveen Kumar Rana, UDC Office of SubRegistrarI, Kashmiri Gate, Delhi, had tendered in evidence (a) copy of original letter dated 02.01.2012, written by Sh. Manoj Kumar, SubRegistrarI, Delhi to Inspector Vijay Kumar as Ex.PW6/1 (previously Ex.PW1/81) and (b) copy of original letter dated 24.01.2012, written by Sh. Manoj Kumar, SubRegistrarI, Delhi to plaintiff no. 1 as Ex.PW6/2 (previously Ex.PW1/84). During cross examination by the Ld. Advocate for the defendants no. 2 to 4, PW6 Sh. Praveen Kumar Rana had interalia deposed that he was not posted in the Office of Sub RegistrarI, Kashmiri Gate, Delhi in 201112 and he has no personal knowledge about the documents tendered by him.
14. During examinationinchief PW7 Sh. Rajiv Kumar Sinha, Ahlmad in the Court of Sh. Harun Pratap, the then Ld. MM04, SouthEast District, Saket Courts, New Delhi, had produced the original file of the case arising from FIR No. 137/2011, PS G.K.I and confirmed that the chargesheet, Ex.PW1/79, letter dated 19.12.2011 written by the defendant no. 3, Ex.PW1/80, letter dated 02.01.2012, Ex.PW1/81, letter dated 03.01.2012, Ex.PW1/82 and the sale deed dated Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 18 of 37 30.10.1987, Ex.PW1/83 are true copies of the record available with him. Despite grant of opportunity, the defendant no. 1 as well as the Ld. Advocates for the defendants no. 2 to 4 and the defendant no. 6 had chosen not to crossexamine PW7 Sh. Rajiv Kumar Sinha.
15. During examinationinchief, PW8 Sh. Abdul Rahaman Khan, Head Clerk, Office of SubRegistrarI, Paschim Midina Pur, West Bengal had tendered in evidence (a) memo no. 1058 dated 25.08.2011 issued by Sh. K.S. Sarkar, District Registrar, Paschim Midna Pur to Sh. Sohail Khan, Advocate in reply to RTI application dated 16.08.2011 (previously Ex.PW1/67); (b) memo no. 979, dated 20.11.2017 issued by Distt. Registrar, Paschim Midnapur; (c) memo no. 860/JN, dated 25.10.2017, Memo No. 144, dated 24.10.2017, issued by ADSR, Pingla; (d) Govt. of West Bengal Notification No. 571PAR(AR), dated Kolkata 18.12.2011 etc. as Ex.PW8/1(colly). Despite grant of opportunity, the Ld. Advocate for the defendants no. 2 to 4 had not crossexamined PW8 Sh. Abdul Rahaman Khan. During crossexamination by the Ld. Advocate for the defendant no.6, PW8 Sh. Abdul Rahaman Khan had interalia deposed that he has not brought the record of GPA dated 16.04.1983 and GPA dated 16.02.2002 since they were not found in the Office of SubRegistrarI, Paschim Midanpur, West Bengal and that the Office of the said SubRegistrar was established, on 29.08.2001.
16. During examinationinchief, PW9 Sh. Surya Prakash Sharma had tendered in evidence (a) receipt no. 85080 dated 04.04.2011 (previously Ex.PW1/27); (b) letter dated 04.04.2011 (previously Ex.PW1/30); (c) mutation order dated 04.04.2011 in favour of the plaintiff no. 1 qua the ground floor of the suit property (previously Ex.PW1/31) and (d) letter dated 11.11.2011, written by Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 19 of 37 Assistant Assessor and Collector, Central Zone to Sh. Sandeep Panwar, SI, PS GK (previously Ex.PW1/32). During crossexamination by the Ld. Advocate for the defendants no. 2 to 4, PW9 Sh. Surya Prakash Sharma had interalia deposed that all the arrears of property tax qua the suit property were paid in 2011 as per the receipts, Ex.PW1/28(OSR) and Ex.PW1/29(OSR); that the property tax on the basis of self assessment, for the period, 2004 to 2018 stands paid by the plaintiff no. 1 only qua the ground floor of the suit property and that he has no knowledge regarding the payment of property tax qua the other two floors of the suit property. Despite grant of opportunity, the defendant no. 1 as well as the Ld. Advocate for defendant no. 6 had chosen not to crossexamine PW9 Sh. Surya Prakash.
17. During examinationinchief, PW10 Sh. Narender Kumar, Record Keeper, SubRegistrarV, Mehrauli, New Delhi had tendered in evidence (a) three registered sale deeds dated 07.11.2001 (previously Ex.PW1/6 to Ex.PW1/8), executed by Smt. Sheela Devi in favour of the plaintiff no. 1, Sh. Ram Avtar Aggarwal, (b) registered sale deed dated 25.08.2011 (previously Ex.PW1/78), executed by the defendant no. 1, Sh. Raj Singh Malik in favour of the defendant no. 2, M/s. Ockleaf Developers Pvt. Ltd. and (c) registered sale deed dated 28.06.2011 (previously Ex.PW1/64), executed by the defendant no. 5, Sh. Naresh Kumar in favour of the defendant no. 7, Ms. Deepti Sharma. During crossexamination by the Ld. Advocate for the defendants no. 2 to 4, PW10 Sh. Narender Kumar had inter alia deposed that he has no personal knowledge regarding the sale deed dated 28.06.2011, previously Ex.PW1/64. Despite grant of opportunity, the defendant no. 1 as well as the Ld. Advocate for defendant no. 6 had chosen not to crossexamine PW10 Sh. Narender Kumar.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 20 of 37
18. During examinationinchief, DW1 Sh. Manik Gambhir, had deposed in line with the written statement filed by him as the son/LR of the defendant no. 6. During crossexamination by the Ld. Advocate for the plaintiffs, DW1 Sh. Manik Gambhir had interalia deposed that his father, Late Sh. Balbir Gambhir (defendant no. 6) had no concern with the suit property; that the documents of the year 1983, allegedly executed by Sh. P.N. Oak in favour of his father, Late Sh. Balbir Gambhir and the documents of the year 200102, allegedly executed by his father, Late Sh. Balbir Gambhir in favour of the defendant no. 5, Ex.PW1/53 to Ex.PW1/63 are forged documents which do not bears the signatures of his father, Late Sh. Balbir Gambhir; that he has no objection if the documents of years 1983 as well as 2001 02, Ex.PW1/52 to Ex.PW1/63 are declared null and void by this Court and that it is wrong to say that the plaintiffs have not filed this suit, in order to harass and blackmail the legal heirs of the defendant no. 6, Late Sh. Balbir Gambhir.
19. During examinationinchief, DW2/1 Sh. Hira Lal, Preservation Assistant, Department of Delhi Archives, had tendered in evidence (a) registered power of attorney dated 12.09.1988, executed by Sh. P.N. Oak in favour of Sh. Ashok Bhadoria qua the ground floor of the suit property, Ex.DW2/1(OSR); 12 (b) registered power of attorney dated 12.09.1988, executed by Sh. P.N. Oak in favour of Sh. Dharamvir Vaid qua the first floor of the suit property, Ex.DW2/2(OSR) 13 and
(c) another registered power of attorney dated 12.09.1988, executed by Sh. P.N. 12 The said power of attorney, Ex.DW2/1(OSR) is registered as Document No.5597, Book No. IV, Volume No.1519 at pages 141147 on 12.09.1988 and is different from power of attorney, Ex.PW1/5, relied upon by the plaintiffs, registered as Document No.5596, Additional Book No.4, Volume No.1509 at pages 138 to 140.
13 The said power of attorney, Ex.DW2/2(OSR) is registered as Document No.5609, Book No. IV, Volume No.1519 at pages 177180 on 12.09.1988 and is different from power of attorney, Ex.PW1/11, relied upon by the plaintiffs, registered as Document No.5608, Additional Book No.4, Volume No.1509 at pages 173 to 176.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 21 of 37 Oak in favour of Sh. Dharamvir Vaid qua the first floor of the suit property, Ex.DW2/3(OSR).14 Also, DW2/1 Sh. Hira Lal had deposed that as per the record maintained in his Office there is no sale deed dated 30.10.1987 in respect of the suit property, registered as document no. 4733, Book No. I, Vol. No. 4812, pages no. 185 to 187 and that at the said page numbers a lease deed dated 10.03.1983, executed between Sh. N.K. Jain and the Central Bank of India qua ground floor of property no. D1A, Green Park, New Delhi, is registered. During crossexamination by the Ld. Advocate for the plaintiffs, DW2/1 Sh. Hira Lal had interalia deposed that he has no personal knowledge about the documents tendered in evidence by him.15
20. During examinationinchief, DW3 Sh. Sanjay Kumar Malik (attorney of the defendant no. 3) had deposed in line with the joint written statement of the defendants no. 2 to 4 and while doing so specified that previously he was the personal assistant of the defendant no. 3; that he is well acquainted with the facts of this case and that he had accompanied the defendant no. 3 during the execution of the sale deed dated 25.08.2011 qua the suit property by the defendant no. 1 in favour of the defendant no. 2 company. Also, DW3 Sh. Sanjay Kumar Malik had tendered in evidence, special power of attorney dated 30.04.2019, Ex.DW3/1, sale deed dated 25.08.2011, executed by the defendant no.1 in favour of the defendant no. 2 company, Ex.DW3/2(OSR) (previously Ex.PW1/78), sale deed dated 03.03.1962 executed by DLF Housing and Construction Pvt. Ltd. in favour of Sh. 14 The said power of attorney, Ex.DW2/3(OSR) is registered as Document No.5610, Book No. IV, Volume No.1519 at pages 181182 on 12.09.1988 and is also different from power of attorney, Ex.PW1/11, relied upon by the plaintiffs, registered as Document No.5608, Additional Book No.4, Volume No.1509 at pages 173 to 176.
15 The testimony of DW2/1 Sh. Hira Lal reveals that the apart from the three power of attorneys of 1988 propounded by the plaintiffs, Sh. P.N. Oak had executed three other power of attorneys in 1988 viz. one in favor of Sh. Ashok Bhadoria and two in favor of Sh. Dharam Vir Vaid.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 22 of 37 P.N. Oak, Ex.DW3/3(OSR) and certified copy of sale deed dated 30.10.1987, allegedly executed by Sh. P.N. Oak in favour of the defendant no. 1, Ex.DW3/4. During crossexamination by the Ld. Advocate for the plaintiffs, DW3 Sh. Sanjay Kumar Malik had interalia deposed that his evidence affidavit, Ex.DW3/A was prepared at Tis Hazari; that the defendant no. 3 had informed him about the pendency of this suit and requested him to meet Sh. Satish Kumar, Ld. Advocate; that the special power of attorney dated 30.04.2019, Ex.DW3/1 was prepared at Ontario, Canada; that he had signed the special power of attorney dated 30.04.2019, Ex.DW3/1 and handed over to Sh. Satish Kumar, Ld. Advocate; that he had worked with defendant no. 3 from 2004 to 2014; that he is not an attesting witness qua the sale deeds tendered in evidence by him; that he had gone to the Office of SubRegistrar, Mehrauli, for the execution of the registered sale deed dated 25.08.2011, Ex.DW3/2(OSR) by the defendant no. 1 in favour of the defendant no. 2 company; that on that day, the associates of the defendant no. 1 and the defendant no. 3 were present at the Office of SubRegistrar, Mehrauli; that on that day, he had not entered the Office of SubRegistrar, Mehrauli; that the possession of the suit property is with the defendant no. 3; that after registration of the sale deed dated 25.08.2011, Ex.DW3/2(OSR) by the defendant no. 1 in favour of the defendant no. 2 company, the defendant no. 1 had taken the defendant no. 3 to the suit property and given him the key to the suit property; that on the same date, the defendant no. 3 had paid a sum of Rs.500/ to the watchman at the suit property and informed him that henceforth he will pay his salary; that he does not know the name of the watchman and he does not know if any salary was ever paid to him; that it is wrong to say that the defendants no. 2 to 4 were never in possession of the suit property and that it is wrong to say that instead of the Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 23 of 37 defendant no. 2 company, the plaintiffs are the owners of the suit property. 16
21. In order to adjudicate upon this suit, I had heard Sh. Suhail Khan, Ld. Advocate for the plaintiffs and Sh. Manish Aggarwal, Ld. Advocate for the defendants no.2 to 4 and Ms. Kaadambari, Ld. Advocate for the LRs of the defendant no.6, on 25.08.2022.
22. Before giving the findings qua the issues framed in this suit, on 31.07.2014 and 16.10.2014, I find it necessary to make few prefatory observations qua some important aspects of this suit.
Observation 1
23. In view of (a) the written statement of the defendant no. 6 filed by his son/legal representative, Sh. Manik Gambhir, with clear pleadings to the effect that the defendant no. 6, Late Sh. Balbir Gambhir had no right, title or interest in respect of the suit property and that the defendant no. 6, Late Sh. Balbir Gambhir had never executed any document in respect of the suit property, (b) the testimony of DW1 Sh. Manik Gambhir, unequivocally supporting the pleas taken in the written statement of the defendant no. 6, (c) the unchallenged testimony of PW8 Sh. Abdul Rahaman Khan, Head Clerk, Office of SubRegistrarI, Paschim Midnapur, West 16 In my view, the testimony of DW3 Sh. Sanjay Kumar Malik is unworthy of much credit (a) because he has not placed on any document to prove that he was employed by the defendant no.2 company or defendant no.3 in 2011 and (b) because to a large extent his testimony does not pass the muster of the law laid down by the Hon'ble Supreme Court in Janki Vashdeo Bhojwani & Anr v Indusind Bank Ltd. & Ors., (2005) 2 SCC 217. In the said judgment, the Hon'ble Supreme Court has interalia observed, an attorney "cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined."
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 24 of 37 Bengal to the effect that the Office of the said SubRegistrarI was established, on 29.08.2001 and there are no documents qua the suit property registered with the Office of the said SubRegistrarI, (d) the failure of the defendant no. 5, Sh. Naresh Kumar to contest this suit and claim rights qua the suit property, on the basis of the documents propounded by him viz. registered GPA dated 16.02.2002, Ex.PW1/58(OSR) and unregistered agreement to sell etc. dated 17.04.2001, Ex.PW1/59(OSR) to Ex.PW1/63(OSR)17 and (e) the failure of the defendant no. 7, Ms. Deepti Sharma to contest this suit and claim rights qua the suit property, on the basis of registered sale deed dated 28.06.2011, Ex.PW1/64, the first set of documents referred in the plaint of this suit, have to be taken to have already met their waterloo and as a result, the reliefs (d), (e) and (f), sought by way of this suit, are exfacie liable to be granted to the plaintiffs.
Observation 2
24. In view of the failure of the defendant no. 2 company to file any counterclaim or a separate suit, challenging (a) registered sale deed dated 20.02.1989, Ex.PW1/3(OSR), executed by Sh. P.N. Oak, through his attorney, Sh. Ashok Bhaduria, in favour of the plaintiff no. 1 qua half of the ground floor of the suit property, (b) registered sale deed dated 20.02.1989, Ex.PW1/4(OSR), executed by Sh. P.N. Oak, through his attorney, Sh. Ashok Bhaduria, in favour of Smt. Sheela Devi qua other half of the ground floor of the suit property, (c) three registered sale deeds dated 07.11.2001, Ex.PW1/6(OSR) to Ex.PW1/8(OSR), 17 The said documents were propounded by the defendant no. 5 in CS (OS) No. 1877/2011, Naresh Kumar v Ram Avtar Aggarwal & Anr. The record available on the website of the Hon'ble High Court of Delhi reflects that the said suit was ultimately dismissed for nonprosecution by the defendant no. 5, on 12.01.2015.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 25 of 37 executed by Smt. Sheela Devi in favour of the plaintiff no. 1 qua her half of the ground floor of the suit property, (d) registered sale deed dated 15.02.1989, Ex.PW1/9(OSR) executed by Sh. P.N. Oak, through his attorney, Sh. Dharamveer Vaid, in favour of the plaintiff no. 2 qua half of the first floor of the suit property, (e) registered sale deed dated 15.02.1989, Ex.PW1/10(OSR) executed by Sh. P.N. Oak, through his attorney, Sh. Dharamveer Vaid, in favour of the Smt. Neeta Jain qua the other half of the first floor of the suit property, (f) two registered sale deeds dated 15.03.1993, Ex.PW1/12(OSR) and Ex.PW1/13(OSR), executed by Smt. Neeta Jain in favour of the plaintiff no. 2 qua her half of the first floor of the suit property, (g) registered sale deed dated 12.12.1988, Ex.PW1/15(OSR), executed by Sh. P.N. Oak, through his attorney, Sh. Subhash Mitter Jairath, in favour of the plaintiff no. 2 qua half of the second floor of the suit property, (h) registered sale deed dated 12.12.1988, Ex.PW1/14(OSR), executed by Sh. P.N. Oak through his attorney, Sh. Subhash Mitter Jairath, in favour of Smt. Shrimati Jain qua the other half of the second floor of the suit property and (i) registered sale deed dated 15.03.1993, Ex.PW1/17(OSR), executed by Smt. Shrimati Jain in favour of the plaintiff no. 2 qua her half of the second floor of the suit property, the defendant no. 2 company stands precluded (a) from asserting that it has any rights in respect of the suit property and (b) from challenging the alleged title of the plaintiffs qua the different floors of the suit property.18 18 In this regard, I crave reference to the judgment in Manjeet Kaur & Anr. v Devender Dagar & Anr., (2019) SCC OnLine Del 11919, wherein the Hon'ble High Court of Delhi had refused to entertain a suit filed by the plaintiffs, in November 2019, challenging the registered gift deed dated 06.02.2014, on the ground of limitation and while doing so held that merely because the plaintiffs have sought the relief of possession, the time period to seek the relief of cancellation of the registered gift deed dated 06.02.2014, will not get extended to 12 years. Also, I crave reference to the judgment in Lata Chauhan v L.S. Bisht, 2010 (117) DRJ 715, wherein the Hon'ble High Court of Delhi was interalia called upon to partition property no. A20, West End Avenue, New Delhi (left behind by Late Thakur Dan Singh Bisht) and the Hon'ble High Court of Delhi had refused to do so on the ground that since the plaintiff and other supporting parties of the suit had failed to challenge the registered perpetual Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 26 of 37 Observation 3
25. Even if it is assumed that the defendant no. 2 company is not precluded, as aforesaid, from interalia asserting that it has any rights in respect of the suit property, (a) the failure of the defendant no. 1 to contest this suit and to prove that the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83) was genuinely executed by Sh. P.N. Oak in his favour, (b) the testimony of DW2/1 Sh. Hira Lal, Preservation Assistant, Department of Delhi Archives to the effect that there is no sale deed dated 30.10.1987 in respect of the suit property, registered as document no. 4733, Book No. I, Vol. No. 4812, pages no. 185 to 187 and that at the said page numbers a lease deed dated 10.03.1983, executed between Sh. N.K. Jain and the Central Bank of India qua ground floor of property no. D1A, Green Park, New Delhi, is registered, (c) the failure of the defendant no. 2 company to lead any credible evidence to prove that the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83) was duly executed by Sh. P.N. Oak in favour of the defendant no. 119 and (d) the stand taken by the defendant no. 3 (director of the lease deed dated 28.06.1967 in favour of the defendant no. 1, Sh. L.S. Bisht (soninlaw of Late Thakur Dan Singh Bisht), within the prescribed period of limitation, the plaintiff and other supporting parties of the suit had lost their alleged rights in respect of property no. A20, West End Avenue, New Delhi, on account of operation of Section 27 of the Limitation Act, 1963. Applying the ratio of the said two judgments to this suit, I am of the considered opinion that the defendant no.2 company, by failing to file a counterclaim or a separate suit, challenging the aforesaid sale deeds of the plaintiffs, within the prescribed period of limitation viz. 3 years, has lost its alleged rights qua the suit property as well as the right to challenge the alleged title of the plaintiffs qua the different floors of the suit property. At this stage, I must specify that during the hearing of final arguments, the Ld. Advocate for the defendants no.2 to 4 had not given a single reason, for not challenging the aforesaid sale deeds of the plaintiffs, through a counterclaim or a separate suit and for not filing a suit for possession and recovery of mesne profits/damages against the plaintiffs, for 10 years. 19 In regard to this observation, it is noteworthy that DW3 Sh. Sanjay Kumar Malik has deposed in this suit, as an attorney of the defendant no. 3 and not as a representative of the defendant no. 2 company and that he had absolutely no foundation/basis to testify regarding the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83) because he is an absolute stranger qua the sale Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 27 of 37 defendant no. 2 company) in the Court of Sh. Harun Pratap, the then Ld. MM, SouthEast District, Saket Courts, New Delhi, during the hearing of arguments on charge, in the criminal case arising from FIR No. 137/11, PS G.K.I, to the effect that he as well as the defendant no. 2 company were interalia defrauded by the defendant no. 1, Sh. Raj Singh Malik,20 collectively establish (i) that the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83) was/is a bogus/sham document, (ii) that on 25.08.2011, the defendant no. 1 had absolutely no title qua the suit property, (iii) that resultantly, no title qua the suit property had transferred from the defendant no. 1 to the defendant no. 2 company, on account of execution of the registered sale deed dated 25.08.2011, Ex.DW3/2(OSR), (iv) that as such, the defendant no. 2 company has no basis to claim title qua the suit property and
(v) that the appropriate remedy for the defendant no. 2 company is to sue the defendant no.1, for cancellation the registered sale deed dated 25.08.2011, Ex.DW3/2(OSR) on ground of fraud and consequent recovery of Rs.1,80,00,000/ along with interest.
26. In the wake of the aforesaid prefatory observations qua some important aspects of this suit, I now proceed to give the findings qua the issues framed in this suit, on 31.07.2014 and 16.10.2014.
ISSUES NO.1 deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83) 20 The defendant no.2 company cannot be permitted to blow hot and cold qua the registered sale deed dated 25.08.2011, Ex.DW3/2(OSR). Having argued before the Court of Sh. Harun Pratap, the then Ld. MM, SouthEast District, Saket Courts, New Delhi, through its director (defendant no.3) that the the registered sale deed dated 25.08.2011, Ex.DW3/2(OSR) is vitiated by fraud, interalia committed by the defendant no.1, Sh. Raj Singh Malik, the defendant no.2 company cannot contend before this Court that the said sale deed is as a good as gold and confers perfect title upon it, in respect of the suit property.
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 28 of 37 "1. Whether the suit of the plaintiffs is barred by limitation? OPD2"
27. In my view, this issue is liable to be decided in favour of the plaintiffs and against the defendants (a) because in their joint written statement, the main contesting defendants viz. defendants no. 2 to 4 have not pleaded the exact date from which, the plaintiffs had knowledge regarding all the documents challenged by way of this suit; (b) because during the trial of this suit, the main contesting defendants viz. defendants no. 2 to 4 have not elicited any testimony from the prime witness of the plaintiffs viz. PW1 Ms. Dhani Aggarwal to the effect that the plaintiffs had knowledge regarding all the documents challenged by way of this suit, 3 years prior to filing of this suit, on 08.02.2012 and (c) because as such, this Court has no reason to disbelieve the version of the plaintiffs that they had gained knowledge qua all the documents challenged by way of this suit in 2011 and had promptly filed this suit within 3 years therefrom i.e. on 08.02.2012.
28. In view of the aforesaid, this issue is decided in favour of the plaintiffs and against the defendants. It is held that this suit is not barred by the law of limitation.
ISSUE NO.2
"2. Whether the plaintiffs are owners of the suit property, i.e. bearing no. N128, Greater KailashI, New Delhi?
OPP"
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 29 of 37
29. In my view, de hors of the fact that none of the defendants have any right, title or interest, in respect of the suit property, this issue requires deeper consideration by this Court because a declaration of title qua an immovable property cannot be presented as a walk over to plaintiff. 21 Having made this observation, I propose to decide this issue, by independently referring to the different floors of the suit property.
30. In my view, the plaintiff no.1 is not entitled to the declaration that he is the owner of the ground floor of the suit property (a) because the mutation order dated 04.04.2011, Ex.PW1/31 does not establish the ownership of the plaintiff qua the ground floor of the suit property;22(b) because vide registered power of attorney dated 12.09.1988, Ex.PW1/5, Sh. P.N. Oak had not given any authority to Sh. Ashok Bhaduria to sell the ground floor of the suit property to any person and (c) because as such, the sale deed dated 20.02.1989, Ex.PW1/3(OSR) as well as the sale deed dated 20.02.1989, Ex.PW1/4(OSR), being ultravires the registered power of attorney dated 12.09.1988, Ex.PW1/5, had not resulted in any transfer of title qua the ground floor of the suit property from Sh. P.N. Oak to the plaintiff no. 1, 21 I can buttress this point with an illustration. A files a suit against B, seeking a declaration that he is the owner of an immovable property (henceforth 'suit property') and a permanent prohibitory injunction to the effect that B be restrained from claiming to be the owner of the suit property. In such a suit, even if the Civil Court finds that B is a complete stranger qua the suit property, the Civil Court will not grant the desired relief of declaration of title qua the suit property to A unless it is absolutely convinced that A has proper title deeds qua the suit property (a) because it is the duty of a Civil Court to examine the title of A qua the suit property independent of the merit of the defence presented by B and (b) because if the Civil Court will not act with such circumspection, it is likely that it will fall prey to a host of collusive suits, where citizens like B would be nothing but stooges of citizens like A, facilitating the grant of declaration of title qua the suit property by the Civil Court, in favor of A. 22 In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in Ranjeet Singh v Nanki Devi (2018) SCC OnLine Del 10131, wherein it has been reiterated that mutation entries of L&DO and/or municipality do not create title.Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 30 of 37 Sh. Ram Avtar Aggarwal and to Smt. Sheela Devi. 23 The cascading effect of this finding is that no transfer of title qua the half of ground floor of the suit property had taken place from Smt. Sheela Devi to the plaintiff no. 1, Sh. Ram Avtar Aggarwal, on the basis of the three registered sale deeds dated 07.11.2001, Ex.PW1/6(OSR) to Ex.PW1/8(OSR).
31. In my view, the plaintiff no.2 is not entitled to the declaration that she is the owner of the first floor of the suit property (a) because she has not entered the witness box to answer questions qua her alleged title qua the first floor of the suit property;24 (b) because vide registered power of attorney dated 12.09.1988, Ex.PW1/11, Sh. P.N. Oak had not given any authority to Sh. Dharamvir Vaid to sell the first floor of the suit property to any person and (c) because as such, the sale deed dated 15.02.1989, Ex.PW1/9(OSR) as well as the sale deed dated 15.02.1989, Ex.PW1/10(OSR), being ultravires the registered power of attorney 23 In this regard, reference is craved to the judgment of the Hon'ble Supreme Court in Umadevi Nambiar v Thamarasseri Roman Catholic Diocese, (2022) 7 SCC 90, wherein the Hon'ble Supreme Court, relying upon its previous judgment in Church of Christ Charitable Trust & Educational Charitable Society v Ponniamman Educational Trust, (2012) 8 SCC 706, has reiterated that for a sale through an attorney to be valid, the power of attorney should expressly authorize the attorney to
(a) to execute a sale deed, (b) to present it for registration and (c) to admit execution before the registering authority. The registered power of attorney dated 12.09.1988, Ex.PW1/5, executed by Sh. P.N. Oak in favor of Sh. Ashok Bhaduria, is silent qua the all said three aspects. Its clause 9 stipulates that Sh. Ashok Bhaduria will be entitled to sell the ground of the suit property but that in my considered opinion, is not sufficient to meet the standard of the law, as laid down by the Hon'ble Supreme Court in Umadevi (supra).
24 The grant of a relief of declaration, sought as per Section 34 of the Specific Relief Act, 1963, is a matter of discretion, for the Court. I do not see any reason to exercise discretion in favor of a litigant/plaintiff, who has shied from entering the witness box and presenting herself for questioning/examination by the contesting defendants and most importantly, by the Court. In this regard, I rely upon the judgment in Vidhyadhar v Manikrao & Anr. (1999) 3 SCC 573, wherein the Hon'ble Supreme Court, after referring to a number of judgments of the Privy Council and the High Courts, has observed, "17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct..."Civil Suit No.208149/16
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Page no. 31 of 37 dated 12.09.1988, Ex.PW1/11, had not resulted in any transfer of title qua the first floor of the suit property from Sh. P.N. Oak to the plaintiff no. 2, Smt. Sharda Gupta and to Smt. Neeta Jain.25 The cascading effect of this finding is that no transfer of title qua the half of first floor of the suit property had taken place from Smt. Neeta Jain to the plaintiff no. 2, Smt. Sharda Gupta, on the basis of the two registered sale deeds dated 15.03.1993, Ex.PW1/12(OSR) to Ex.PW1/13(OSR).
32. In my view, the plaintiff no.2 is not entitled to the declaration that she is the owner of the second floor of the suit property because she has not entered the witness box to answer questions qua her alleged title qua the second floor of the suit property, which in my view, as explained in the context of first floor of the suit property, is ground enough, for this Court to refuse the grant of the discretionary relief of declaration.26
33. In view of the aforesaid, this issue is decided against the plaintiffs. It is held that the plaintiff no.1 is not entitled to the relief of declaration to the effect that he is the owner of the ground floor of the suit property and the plaintiff no.2 is not entitled to the relief of declaration to the effect that she is the owner of the first and second floor of the suit property. Having held so, I must specify that even though, the plaintiffs are not entitled to the reliefs of declarations, as aforesaid, from the vantage point of the defendants, the plaintiffs have 'possessory title' qua the different floors of suit property viz. the plaintiff no.1 has 'possessory title' qua the 25 The reasoning given in footnote no. 23 applies mutatis mutandis to clause 9 of the registered power of attorney dated 12.09.1988, Ex.PW1/11.
26 At this stage, in all fairness, I must specify that clause 11 of the registered power of attorney dated 12.09.1988, Ex.PW1/16, executed by Sh. P.N. Oak in favor of Sh. Subhash Mitter Jairath does authorize Sh. Subhash Mitter Jairath to duly sell the second floor of the suit property and does meet the standard of law, as laid down by the Hon'ble Supreme Court in Umadevi (supra).
Civil Suit No.208149/16Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 32 of 37 ground floor of suit property and the plaintiff no.2 has 'possessory title' qua the first first floor and second floor of the suit property and the said 'possessory title' entitles them to seek the other relief of declarations and injunctions, sought by way of this suit.27 ISSUE NO.3 "3. Whether the plaintiffs are entitled to decree for declaration that the sale deed dated 30 th October, 1987 allegedly registered and executed between Sh.
Purshottam Nagesh Oak and defendant no.1 and the sale deed dated 28th June, 2011 executed by defendant no.1 in favour of defendant no.2 as fake, forged, fabricated and null & void? OPP"
34. In view of the observation no. 3 made in paragraph 25 of this judgment and particularly in view of the failure of the defendants no. 1 to 4 to prove the due execution and registration of the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83), this issue is decided in favour of the plaintiffs and against 27 For the jurisprudence regarding 'possessory title' or 'possessory rights' reference is craved to the judgments of the Hon'ble High Court of Delhi in Suresh Kumar v Saroj Atal, (2012) 189 DLT 285 and Gopi Chand v Geeta Devi & Ors. (2020) SCC OnLine Del 2420. In the latter judgment, the Hon'ble High Court of Delhi has held that such rights can even be partitioned amongst the heirs of the person, holding such rights. Also, reference is craved to the judgment of the Hon'ble Supreme Court in Ravinder Kaur Grewal & Ors. v Manjit Kaur and Ors. (2019) SCC OnLine SC 975, whose dominant theme is that a person in possession of an immovable property, has all rights qua the immovable property except when such a person is sued by the original owner of the suit property, within the prescribed period of limitation. When one takes a look at the case of the plaintiffs, through the prism of the law discussed in the said judgments, the position that appears is that Sh. P.N. Oak (subject to the law of limitation) can still lay a challenge qua the possessory title of the plaintiffs qua the suit property but the rest of the world, particularly the defendants herein cannot lay any such challenge.Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 33 of 37 the defendants no. 1 to 4. It is held that the sale deed dated 30.10.1987, Ex.DW3/4 (previously Ex.PW1/83), allegedly executed by Sh. P.N. Oak in favour of the defendant no. 1, is null and void. Also, it is held that the sale deed dated 25.08.2011, Ex.DW3/2(OSR), having been executed by the defendant no. 1 in favour of the defendant no. 2 company, without any title qua the suit property, is also null and void.
ISSUE NO.4
"4. Whether the plaintiffs are entitled to decree for permanent injunction as prayed for? OPP"
35. In view of the fact that all the documents propounded by the defendants no. 1 to 4 as well as all the documents propounded by the defendants no. 5 to 7 have been found to be sham, bogus and null/void documents, this issue is decided in favour of the plaintiffs and against the defendants. All the defendants of this suit are permanently restrained (a) from indulging in any transaction qua the suit property on the basis of the documents, propounded by them qua the suit property; (b) from manufacturing/creating any more documents qua the suit property and (c) from illegally interfering in the peaceful possession of the plaintiffs qua the suit property.
ISSUE NO.5
"5. Whether the documents i.e. the General Power of Attorney dated 16th April, 1983 and Agreement to Sell, Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 34 of 37 Affidavit, Receipt, Possession Letter and Will dated 16 th July, 1983 and further dated 17th April, 2001 are invalid documents as claimed by the plaintiff? OPP"
36. In view of observation no. 1 made in paragraph 23 of this judgment and particularly in view of failure of the defendants no. 5 and 7 to defend the documents qua the suit property, propounded by them, this issue is decided in favour of the plaintiffs and against the defendants no. 5 to 7. It is held that all the documents propounded by the defendants no.5 to 7 qua the suit property are null and void.ISSUE NO. 6
"6. Whether the suit is barred by limitation? OPD"
37. This issue is a replica of issue no. 1. Therefore, in exercise of power under Order XIV Rule 5 of CPC, 1908, it is striked off.
RELIEF
38. In view of the aforesaid findings given qua the issues framed in this suit, on 31.07.2014 and 16.10.2014, this suit is partly decreed, leaving the parties to bear their own costs. The grant of the relief of declaration, sought by the plaintiffs qua ownership of different floors of suit property, is declined albeit with the specification made in paragraph 33 of this judgment. The other reliefs sought by the plaintiffs are granted. All the documents propounded by the defendants qua the Civil Suit No.208149/16 Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 35 of 37 suit property are declared null and void. Additionally, the defendants are permanently restrained (a) from indulging in any transaction qua the suit property on the basis of the documents, propounded by them, qua the suit property; (b) from manufacturing/creating any more documents qua the suit property and (c) from illegally interfering in the peaceful possession of the plaintiffs qua the suit property.
39. Before parting with this judgment, it is clarified that the aforesaid finding qua issue no.2 framed in this suit, on 31.07.2014, has been given after taking note of the judgment of the Hon'ble Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal v Badagara Jumayath Palli Dhara Committee and Ors., (2004) 7 SCC 708, laying down law to the effect that a plaintiff can only succeed on the strength of his/her case and not the weakness found in the case of the defendant. Also, it is clarified that out of the many aspects that show that the claim of the defendant no. 2 company qua the suit property is dishonest, the most important aspects are that the defendant no. 2 company, which had emphatically pleaded in its written statement filed on 23.08.2012 that it is in the process of filing a suit for possession qua the suit property against the plaintiffs, had not filed any such suit for possession etc. qua the suit property, against the plaintiffs, till this suit was taken up for hearing of final arguments by this Court in August 2022 28 and that the defendant no.2 company, despite believing that it is the genuine owner of the suit property, has let the plaintiffs enjoy the possession of the suit property for 10 years, without payment of any mesne profits/damages. 29 Lastly, it is clarified that 28 On 24.08.2022, the Ld. Advocate for the defendant no. 2 company had informed this Court that the defendant no. 2 company has finally 'efiled' a suit for possession etc. against the plaintiffs. However, it is not clear whether till today, the said suit has been listed before the Hon'ble High Court of Delhi.
29 Such conduct of the defendant no. 2 company defies commercial prudence, which is quite unbecoming for any commercial entity.Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
Page no. 36 of 37 the observations made in paragraphs 31 and 32 of this judgment against the plaintiff no. 2, on the strength of paragraph 17 of the judgment of the Hon'ble Supreme Court in Vidhyadhar (supra) apply with equal force to the defendant no.3 (director of the defendant no.2 company), who should have entered the witness box to prove genuineness of the defence of the defendant no.2 company. 30
40. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.Digitally signed by JAY THAREJA
JAY Date:
THAREJA 2022.09.15
16:33:40 +0530
Announced in open Court (Jay Thareja)
today on 15.09.2022 Ld. ADJ07, South East District,
Saket Courts/Delhi
30 Only the defendant no. 3 could have explained what due diligence was done before the alleged purchase of the suit property by the defendant no. 2 company from the defendant no. 1.Civil Suit No.208149/16
Ram Avtar Aggarwal & Anr. v Raj Singh Malik & Ors.
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