Delhi District Court
Rajesh Kumar vs Jummi on 29 August, 2024
IN THE COURT OF SH. KISHOR KUMAR, DISTRICT
JUDGE-04, NORTH DISTRICT, ROHINI COURTS, DELHI.
RCA DJ No. 226/16
CNR No: DLNT01-009689-2016
Rajesh Kumar
S/o Sh. Amar Nath Aggarwal
R/o AP-1, Shalimar Bagh,
Delhi-110052
...... Appellant
VERSUS
Smt. Jummi (Since Deceased)
W/o Sh. Shamsher
(Through LRs)
(a) Sh. Baljeet (Son)
(b) Sh. Satbir (Son)
(c) Sh. Ranbir Singh (Son)
(d) Sh. Mahabir (Son) (Since Deceased)
Through his LRs (a), (b), (c), (e)
and (f) already impleaded as
LRs of respondent Smt. Jummi
(e) Sh. Rajbir (Son)
(f) Smt. Darshna Devi (Daughter) All R/o Village Kaheedpur, Delhi.
.......Respondents
Date of Institution of the case : 08.12.2015
Date of decision : 29.08.2024
Final Outcome : Allowed.
ORDER ON APPEAL
RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 1 of 17
1. This appeal has been filed by the appellant under Section 96 CPC against the impugned judgment and decree dated 26.10.2015 passed by Ld. Civil Judge-11, Central District, Tis Hazari Courts, Delhi in Civil Suit No.335/2014 whereby the suit filed by the appellant had been dismissed by the Ld. trial court.
2. Appellant had filed a suit for specific performance of agreement and for permanent injunction on the ground that Sh. Shamsher Singh, husband of the respondent was owner of land measuring 5 Bighas 14 Biswas comprising in Khasra No.43/12 (4-12) and 19/1(0-8), 46/10/1 (0-14) situated at Village Hameedpur, Delhi. Sh. Shamsher Singh sold and transferred land measuring 4 Bighas 14 Biswas out of Khasra No.43/12 (4-
12), 19/1(0-2) to the plaintiff vide sale deed dated 12.07.1994. On 30.07.1994, the respondent entered into an agreement with the appellant in respect of part of her land which she had purchased from her own husband vide sale deed dated 12.07.1994 which comprises in Khasra No.43/19/1 (0-6) i.e. the suit property. On 17.05.2006, the appellant came to know that the respondent taking advantage of mutation entries was trying to sell the suit property. The appellant prayed for execution of the sale deed in respect of land measuring 6 Biswas Khasra No. 43/19/1 and also prayed for passing decree of permanent injunction restraining the respondent from dispossessing the appellant from the suit property.
3. The respondent/defendant contested the suit on the grounds that though agreement to sell and other documents bear RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 2 of 17 thumb impression of the respondent, but same were obtained in a fraudulent manner. It was further alleged that as per revenue record, the respondent is the true owner of the Khasra No.43/19/1 but agreement is only in respect of Khasra No.19/1, and in the khatoni Khasra number is 43/19/1, therefore, suit cannot be decreed.
4. Replication to the written statement filed on behalf of plaintiff/appellant reiterating and re-affirming the contents of the plaint and denying the averments made in the written statement.
5. On the pleadings of the parties, the Learned trial Court framed the following issues for trial, namely:-
1. Whether the suit of the plaintiff is within time ? OPP
2. Whether the alleged agreement to sell dated 13.07.1994 is not enforceable as agreement to sell was obtained by misrepresentation and fraud ? OPD
3. Whether the suit of the plaintiff is barred by Section 14(a) and Section 20(2)(b) of Specific Relief Act ? OPD
4. Whether the suit of the plaintiff is barred by Section 43 and Section 45 of the Act? OPD
5. Whether the plaintiff is entitled to relief of Specific Performance, as prayed for ? OPP
6. Whether the plaintiff is entitled to relief of injunction as prayed for ? OPP
7. Relief.
6. After hearing the counsels for the parties, the ld trial court RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 3 of 17 had dismissed the suit of the plaintiff while deciding issue no. 1 and 3 in favour of the appellant and issues no.2, 4, 5, 6 & 7 have been decided against the appellant.
7. Being aggrieved by the impugned judgment and decree dated 26.10.2015, the appellant has filed the present appeal on the following grounds:
1. Ld. Trial Court has incorrectly held that Khasra No.43/19/1 and 19/1 are different khasra numbers.
2. Ld. trial Court has ignored that in written statement, respondent does not dispute that agreement in question is in respect of Khasra No.43/19/1 (0-6). It is also not disputed that Khasra No.43/19/1 (0-6) is the suit property.
It is also not disputed that Sh. Shamsher Singh was owner of Khasra No. 43/19/1 (0-8) and was sold in two parts i.e. 2 Bighas to the appellant and 6 Biswas to the respondent by Sh. Shamsher Singh.
3. Ld. trial Court has ignored the fact that original sale deed executed in favour of the respondent by her husband Sh. Shamsher Singh in respect of Khasra No. 43/19/1 (0-6) is in possession of the appellant which was handed over by the respondent at the time of execution of contract.
4. Ld. trial Court has ignored the fact that the omission to mention '43' before '19/1' in the agreement does not loose identity of the property between the parties. For all purposes, the intention of the parties was to transfer Khasra No. 43/19/1 and omission to mention '43' before '19/1' is not fatal to the identity to the property.
RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 4 of 175. In the examination in chief Ex. P-1, it is specifically written that contract dated 13.07.1994 was in respect of Khasra No.43/19/1, however, no suggestion was given in the cross examination that Khasra No.43/19/1 is not the suit property or that Khasra No.43/19/1 was not owned by the respondent.
6. Ld. trial Court ignored the suggestion given to the PW-1 Sh. Rajesh that suit property is 19/1 of 43. This admission in cross examination was sufficient to conclude that there is no dispute between the parties as to the identity of the Khasra number.
7. Statement of Halka Patwari Sh. Mukesh as PW-3 has completely been ignored, whom suggestion was given that Khasra No.19/1 falls under rectangle no.43.
8. Issue no.2 was to be proved by the respondent. There are no pleadings on the issue of fraud in the written statement.
9. Presence of respondent's husband Sh. Shamsher Singh and one of the son at the time of execution of the agreement to sell shows that not only the respondent, but family members were present and sale took place with the permission of the family through her husband Sh. Shamsher Singh
10.Ld. trial Court also ignored statement of the respondent Smt. Jummi wherein she does not dispute putting her thumb impression on the document.
11. It is settled law that the agreement is not a sale itself and mere agreement does not violate section 33 of Delhi Land Reforms Act, 1954. The agreement in question does not RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 5 of 17 violate any provisions of Delhi Land Reforms Act, 1954.
8. I have heard ld counsel for the appellant, ld counsel for respondent and have carefully gone through the record. I have also gone through the written submission filed by the ld counsel for the parties.
9. My observations on the issues is as under:-
Issue no.1: Whether the suit of the plaintiff is within time ? OPP
10. The onus of proving this issue is placed on the plaintiff. The defendant has objected to the case of the plaintiff that the same is time barred. According to the defendant, the suit for specific performance should have been filed by plaintiff within 3 years from 13.07.1994. The present suit has been filed by the plaintiff in the year 2006. The plaintiff has pleaded in the plaint that it was only on 17.05.2006, when plaintiff came to know that the defendant is trying to create third party interest and for that purpose, she had applied for no objection certificate. The cause of action further arose on 19.05.2006, when defendant came at the spot and wanted to take possession of the suit property. The agreement to sell dated 13.07.1994 is also accompanied with a receipt of Rs.10,000/- bearing thumb impressions of defendant. Therefore, after receiving the consideration amount from the plaintiff and also delivering the possession of the suit property to the plaintiff, the possession of the plaintiff stood protected under section 53A of Transfer of Property Act. Hence, in view of the RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 6 of 17 pleadings of the plaintiff, the suit was filed by the plaintiff within the period of limitation from 17.05.2006. This issue is rightly decided against the defendant and in favour of the plaintiff.
Issue no.3: Whether the suit of the plaintiff is barred by Section 14(a) and Section 20(2)(b) of Specific Relief Act ? OPD
11. The onus of proving this issue has been placed on the defendant. The defendant has alleged that the suit of the plaintiff is barred u/s 14(a) and Section 20(2)(b) of Specific Relief Act. It is seen that the defendant has not led any evidence in discharge of proving this issue. Therefore, this issue has rightly been decided against the defendant and in favour of plaintiff.
Issue no.4: Whether the suit of the plaintiff is barred by Section 43 and Section 45 of the Act? OPD
12. The onus of proving this issue has been placed on the defendant. The ld trial court has decided this issue in favour of defendant and against the plaintiff. In fact, it is Section 33 and not Section 43 of the Delhi Land Reforms Act which is under consideration.
13. Now, we have to refer to Section 33 of the Delhi Land Reform Act which states that no Bhumidar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 7 of 17 of any such Bhoodhan movement, as the Chief Commission may, by notification in the official gazette, specify, where as a result of transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi.
14. Section 45 of the Delhi Land Reforms Act further state that any transfer made by/or on behalf of the bhumidar or Asami in contravention of the provision of this chapter, shall be void.
15. Ld counsel for the appellant/plaintiff has argued that the provisions of Section 33 r/w Section 45 of the Delhi Land Reforms Act, are not applicable to the facts and circumstances of the present case. In this regard, he has relied on the notification dated 18.06.2013, whereby, the Village Hamidpur has been declared as Green Belt under Master Plan 2021. The effect of the notification dated 18.06.2013 is that the area of Village Hamidpur is no more governed by the provisions of the Delhi Land Reforms Act. The position was same as on the date of passing of impugned judgment and decree dated 26.10.2015 but this fact has amissed the notice of the ld trial court.
16. Therefore, it cannot be said that the transaction in question of the plaintiff is barred by Section 33 and Section 45 of the Delhi Land Reforms Act. This issue is accordingly decided against the defendant and in favour of plaintiff.
Issue no.2 : Whether the alleged agreement to sell dated 13.07.1994 is not enforceable as agreement to sell was RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 8 of 17 obtained by mis-representation and fraud ? OPD Issue no.5: Whether the plaintiff is entitled to relief of Specific Performance, as prayed for ? OPP Issue no. 6: Whether the plaintiff is entitled to relief of injunction as prayed for ? OPP
17. The onus of proving issue no.2 has been placed on the defendant, whereas, the onus of proving issues no.5 and 6 is placed on the plaintiff. All these issues are taken up together as they are interconnected and can be decided simultaneously.
18. It is seen that the defendant in her written statement has stated that the suit of the plaintiff is barred by limitation as the agreement to sell was dated 13.07.1994, whereas, the suit for specific performance has been filed by the plaintiff in the year 2006. The defendant has further stated that her thumb impressions on the agreement to sell, were obtained by plaintiff by misrepresentation of fact and by playing fraud. No consideration was paid by plaintiff to the defendant on the alleged date of agreement to sell. Defendant is an illiterate, old and parda-nasheen lady. She did not execute any agreement to sell, GPA, affidavit and receipt.
19. The defendant has further stated in her written statement that her husband had executed two sale deeds in respect of his agricultural land on 12.07.1994, one in favour of plaintiff and the other in favour of defendant. The plaintiff came to the house of the defendant on 13.07.1994 and asked her to put her thumb RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 9 of 17 impressions on some papers by saying that these documents are required by the office of Registrar for getting the sale deed executed by her husband on the previous day in her favour. Defendant put her thumb impressions in good faith. The husband of the plaintiff came to know about the fraud of the plaintiff when he applied for NOC of land in dispute of Tehsildar Narela situated at Alipur through his brother Ramesh Kumar. The defendant has further taken the objection of section 33 and 45 of the Delhi Land Reforms Act. The defendant has further stated that she had been retaining the possession of suit land since 1994. The copy of Ak-sizra and Khatoni clearly show that there are two fragments of Khasra no.43/19/1 min (0-02) biswa and 43/19/1 (0-06) biswa.
20. Now I come to the impugned judgment and decree passed by ld trial court and find that ld trial court had travelled beyond the pleading/defence of defendant. The defendant has not taken any defence that it was the khasra no.19/1 and not 43/19/1 for which her thumb impressions have been taken by the defendant fraudulently. It is pertinent to mention herein that defendant has admitted that her husband Sh Shamsher had sold the land falling in khasra no. 43/12 and 19/1 situated at Village Hamidpur for valuable consideration to the defendant vide registered sale deed dated 12.07.1994. Same day, Sh Shamsher Singh had also sold/transferred the land measuring 1 bigha out of khasra no. 43/19/1 (0-6), 46/10/1 (0-14) situated at Village Hamidpur, Delhi. This has been done by Sh Shamsher Singh in order to avoid the complications of the provisions of the Delhi Land RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 10 of 17 Reforms Act. Thereafter, next day the agreement to sell in question has been executed between plaintiff and the defendant for remaining piece of land measuring 6 bigha out of 19/1. This Court is of the opinion that there seems to be some typographical error while mentioning the date agreement to sell instead of mentioning 43/19/1 only, 19/1 has been mentioned.
21. Admittedly, the possession of land measuring 6 biswas under dispute under agreement to sell dated 13.07.1994 is with the plaintiff. The suit of the plaintiff filed before the ld trial court was only for directing the defendant to execute the sale deed in terms of agreement to sell dated 13.07.1994 in favour of plaintiff in respect of land measuring 6 biswas out of khasra no. 43/19/1 situated in the Revenue Estate of Village Hamidpur, Delhi. The relief further sought by the plaintiff is to restrain the defendant from dispossessing the plaintiff from the suit property and from interfering in to the use or enjoyment of the suit property.
22. The ld trial court unnecessarily embarked into an unwarranted arena of the khasra no. 19/1 or 43/19/1. The defendant in her cross-examination has deposed that she is the owner of land measuring one bigha. This one bigha is situated at one place. She did not know which land she sold. She further did not know which land was sold by her husband. She further deposed that except one bigha land, her husband had already sold and transferred the entire land which was recorded in his name. This one bigha land was transferred in the name of the defendant by her husband Sh Shamsher Singh. Defendant knew the plaintiff RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 11 of 17 since the time her husband sold land to him. The land which was sold to the plaintiff has been enclosed by him with boundary wall. The land within boundary wall is stated to be in possession of the defendant but she did not know the khasra number of the disputed property nor she knew the area. The defendant has further deposed that she had put her thumb impressions on the document Ex.PW1/4 i.e. agreement to sell dated 13.07.1994. However, she had put her thumb impression on the following day when her husband had transferred the land in favour of the plaintiff. The defendant has further deposed that the plaintiff had accompanied to her with one more person at her house at about 10-11 AM. Despite persistent denials by the defendant, her thumb impressions were taken on the papers Ex.PW1/4. She told the said fact to her husband on the same day. She had gone to the mill of the plaintiff to take her documents back but she did not give any satisfactory reply. Thereafter, defendant did not take any action against the plaintiff when her documents were not returned. She had told the said fact even to her son Sh Satbir Singh. Defendant did not make any complaint to the police against the plaintiff when she did not return the documents.
23. In view of the above, the cross-examination of PW1 has become relevant to see whether the grounds on which the suit of the plaintiff had been dismissed by the ld trial court, have been put to the plaintiff/PW1 or not.
24. Plaintiff/PW1 has been cross-examined by ld counsel for the defendant and there he deposed that both the registered sale RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 12 of 17 deeds i.e. one in his favour and other in favour of the defendant, were not obtained by him personally from the office of Sub- Registrar. The same were obtained by someone and were handed over to the plaintiff. PW1/plaintiff has categorically denied the suggestion that on 13.07.1994 he went to the house of defendant in the absence of her husband and children and obtained the thumb impression of defendant on papers which were already typed on the pretext that the same were to be submitted in the office of Sub Registrar for obtaining the registered sale deed executed by her husband on 12.07.1994. At the time i.e. on 13.07.1994 when defendant put her thumb impression on the documents executed that day, the plaintiff, Sh Shamsher Singh, defendant, one Sham Sunder Gupta and one Jai Prakash Gupta were present. It is correct that the suit property measuring 6 biswa fall in khasra no. 19/1 of 43, was not mutated in the name of the plaintiff.
25. In view of the above, pleadings of the parties and the testimonies of the defendant as DW1 and that of plaintiff as PW1, there was no dispute that the suit land fell in Khasra no. 43/19/1 and not 19/1. The plaintiff had purchased the remaining land from the husband of the defendant on the same day under sale deed dated 12.07.1994 and the land under the said sale deed very much formed part of khasra no. 43/19/1. The sale deed executed by the husband of the plaintiff in favour of defendant on same day i.e. 12.07.1994 is also of khasra no. 43/19/1 measuring 6 biswas. It is only a typographical error that the mistake has crept in the agreement to sell dated 13.07.1994 that RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 13 of 17 khasra number has been mentioned as 19/1 instead of 43/19/1.
26. PW2, has supported the case of the plaintiff on all the material aspect of the case of the plaintiff. PW3 Sh Mukesh Kumar, Halka Patwari has also supported the case of the plaintiff when he has deposed in his cross-examination that the land which remained in the name of the defendant was to the extent of one min of 19/1 of Khasra no.43 and one min of 10/1 of Khasra no.46. He further deposed that the total rakba in the name of defendant in 19/1 is 0-6 biswas. He further clarified that it is correct that 19/1 falls under rectangle no.43. PW3 denied the suggestion that 19/1 and 19/1 of 43 are two different things and indicate two different positions.
27. Simultaneously, this court hold that the defendant has not been able to discharge the onus of proving that her signatures were obtained by the plaintiff on the agreement to sell dated 13.07.1994 by playing fraud upon her. The bald statement of defendant as pleaded by her in the written statement fails as no cogent and convincing evidence has been led by the defendant. Rather on the other hand, the plaintiff has examined Sh Ramesh Kumar Gupta, who is one of the witness to the agreement to sell Ex.PW1/4, who has supported the case of the plaintiff that it was the defendant who had sold the suit property to him by way of the documents in question Ex.PW1/4.
28. PW2 Sh Ramesh Kumar Gupta has been cross-examined by ld counsel for defendant and there he deposed that the RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 14 of 17 documents i.e. agreement to sell, affidavit, GPA were written at Alipur. Besides PW2, one person Sh Jai Prakash Aggarwal, husband of the defendant, son of the defendant, and the plaintiff were present at Alipur at the time of execution of documents. Besides PW2, Jai Prakash also signed on the documents and defendant put her thumb impressions. PW2 has denied the suggestion that plaintiff got the documents agreement to sell and GPA prepared and got it signed from defendant at her house by alleging that he has to obtain the registered sale deed executed by her husband. PW2 had volunteered that defendant and her husband themselves got these documents prepared. The possession of the land sold by defendant was given to plaintiff after execution of the documents.
29. The ld trial court has made observations on the aspect of khasra no. 19/1 and 43/19/1 without any basis. Such observations of the ld trial court are completely based on conjectures and surmises. Such observations were not at all required to be made by ld trial court when no such objections were taken by defendant in her written statement.
30. Ld counsel for the defendant/respondent has argued that the agreement to sell dated 13.07.1994 is not enforceable as the same is time barred and that even if the case of the plaintiff is deemed to be correct then the plaintiff should have filed the suit within three years.
31. I have gone through the agreement to sell Ex.PW1/4 and RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 15 of 17 find that there is condition no.7 that if party no.1/seller infringes the terms of this deed, then the second party/purchaser shall have the right to get the sale deed registered by specific performance of the deed through the Court of law and the party no.1/seller shall be responsible of all damages of second party/purchaser.
32. Though it is correct that it is not mentioned especially that the first party/seller had to execute the sale deed in favour of second party/purchaser by any specified time but since the possession of the suit property had been delivered to the plaintiff, his possession remained protected u/s 53A of Transfer of Property Act. The plaintiff was always at liberty to get the sale deed registered, to be executed by the defendant through the Court in terms of condition no.7 of the agreement to sell Ex.PW1/4. The time was never the essence of the agreement to sell dated 13.07.1994. It was only on 17.05.2006 when the plaintiff had come to know that defendant was trying to sell the suit property in favour of some other person on the basis of mutation.
33. In view of the above, issue no.2 is decided against the defendant and in favour of plaintiff. Issue no.5 and 6 are decided in favour of plaintiff and against the defendant.
RELIEF
34. In view of my discussion hereinabove, the present appeal stands allowed and the impugned judgment and decree dated RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 16 of 17 26.10.2015 is hereby set aside. Accordingly, a decree of specific performance is hereby passed in favour of the plaintiff thereby directing the defendant to execute the sale deed in terms of agreement to sell dated 13.07.1994 in favour of plaintiff qua the land measuring 6 biswas out of Khasra no. 43/19/1 situated within the Revenue Estate of Village Hamidpur, Delhi.
35. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant restraining the defendant from dispossessing the plaintiff from the suit property and from interfering in to the use or enjoyment of the suit property and also from creating any kind of third party interest on the basis of mutation.
36. Cost is also awarded to the plaintiff/appellant.
37. The trial Court Record be sent back with an attested copy of this judgment.
38. Decree sheet be prepared accordingly.
39. File of this court be sent to the record room after due compliance.
Digitally
signed by
Announced in Open Court KISHOR
On Dated 29.08.2024. KISHOR KUMAR
KUMAR
(Kishor Kumar) Date:
2024.08.29
DJ-04, North, Rohini Courts,
16:28:37
Delhi/29.08.2024 +0530
RCA DJ No. 226/16 Rajesh Kumar Vs. Jummi Page 17 of 17