Delhi District Court
Vijay Bhargava And Ors. ( Counter Claim ) vs Umesh Kumar Bhargava And Others on 7 September, 2024
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 7363/2016
&
CS DJ 3947/2024
Umesh Kumar Bhargava & Anr Vs. Vijay Bhargava & Ors
CNR No. DLST01-000161-2009
CNR No. DLST01-008791-2024
1. Sh. Umesh Kumar Bhargava
S/o Shri A.B.L. Bhargava
R/o B-5/138,
Safdarjung Enclave,
New Delhi-110029
Presently at:
11037 Gaither Farm Road,
Ellicott City MD 21042
U.S.A.
2. Smt. Nalini Bhargava,
W/o Shri Umesh Kumar Bhargava,
R/o B-5/138,
Safdarjung Enclave,
New Delhi-110029
Presently at:
11037 Gaither Farm Road,
Ellicott City MD 21042
U.S.A.
............ Plaintiffs
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 1 of 72
Vs.
1. Mr. Vijay Bhargava,
S/o Sh. A.B.L. Bhargava
R/o B-5/138, Safdarjung Enclave,
New Delhi-110029
2. Smt. Beena Bhargava (Counter Claimant)
W/o Vijay Bhargava
R/o B-5/138, Safdarjung Enclave,
New Delhi-110029
3. Smt. Shyama Bhargava
W/o Late Shri ABL Bhargava
R/o B-5/138, Safdarjung Enclave,
New Delhi-110029 .......... Defendants
Date of Institution of suit : 13.04.2009
Date of Institution of counter claim : 13.10.2009
Date of reserving judgment : 16.08.2024
Date of judgment : 07.09.2024
JUDGMENT
1. Vide this judgment, I shall dispose of the suit for possession, damages and mesne profits filed by the plaintiffs qua a portion of the ground floor, entire first floor and barsati floor of property bearing No.B5/138, Safdarjung Enclave, New Delhi- 110029, and the counter claim filed by the defendant no.1 and 2 seeking specific performance of agreement to sell entered into with the plaintiff qua the first floor of the said property.
2. Brief facts and averments are being culled out from the pleadings for ease of reference. Upfront, it is being pointed CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 2 of 72 out that the present suit seeks recovery of possession of several portions of a building. It is claimed that while occupation of the first floor by defendant no.1 and 2 was of the nature of a licence without any fees, the possession of the defendants on a portion of the ground floor and the entire barsati floor was of the nature of rank trespass. It is also required to be noticed that the plaint was amended by the plaintiff after the mother of the plaintiff was added as defendant no.3 in the present suit, on her claim that she was in possession of a portion of the ground floor and the entire barsati floor. To the extent, the pleadings refer to these different portions of the property and make distinct and separable averments and claims, they have been segregated and are being dealt with separately. The suit is clearly multifarious, having different causes of action and parties joined together. No objection, however, on that ground was taken by the defendant and therefore, the suit is being decided while segregating the causes of action and the claims against defendants to the extent possible for clarity and ease of understanding.
PLAINT:
3. It is the case of the plaintiff:
That the Plaintiff No.1 is husband and the Plaintiff No.2 is his wife. The Plaintiffs are joint registered owners of the entire built up property bearing No.B5/138, Safdarjung Enclave, New Delhi-110029, hereinafter referred to as the "said property". The Plaintiffs purchased the said property vide a duly registered sale deed dated 13.06.1984, registered as document No.3429, CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 3 of 72 Addl. Book No. I, Volume No.5061, pages 145 to 158, registered on 16.06.1984. The Plaintiffs had purchased the said property, which was already constructed in the form of a 2 ½ storeyed residential house built on plot measuring 250 sq. yards.
The said property is built up and is having Ground Floor, First Floor and Barsati. The construction raised on the said property is more specifically shown in the site plan annexed with the plaint.
That the Plaintiff No.1 is residing in USA for last about 38 years. The Plaintiff No.1 is a consulting engineer and is involved in designing buildings, electrical and mechanical systems. The Plaintiff No.2 is a doctor.
Averments pertaining to First Floor:
That after having purchased the said property, the Plaintiffs came in possession of the same except the first floor which was in occupation of a tenant. For some time the brother- in-law of the Plaintiff No.2, namely, Mr. Sunil Bhargava and his wife Mrs. Neena stayed in the ground floor of the said property. Thereafter, the parents of the Plaintiff No.2 moved to the ground floor of the said property, who vacated it in 1996. The tenant on the first floor vacated the first floor portion in the year 1988.
That the Defendant No.1 is a brother of the Plaintiff No. 1. After the tenant vacated the first floor portion in the year 1988, the Defendant No.1 requested the Plaintiffs that since he is living in a rented accommodation and the first floor of the said property has been vacated by the tenant, therefore, he would be CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 4 of 72 grateful if the Plaintiffs permit him to move in to the first floor of the said property as the Defendant No.1 has purchased a flat in Janak Puri, which was under construction and would take some time for completion. ...
In these circumstances, and given the close relationship, the Plaintiffs decided to help the Defendant No.1 and permitted the Defendant No.1 to occupy the first floor of the said property in the year 1988. The first floor is comprising drawing-cum-dining, three bedrooms, three bathrooms, kitchen and balcony. The said permission to occupy the First Floor was without any consideration or any rent. This permission was granted by the Plaintiffs with the express condition which was accepted by the Defendant No.1 that the Defendant No.1 will vacate and peacefully handover the possession of first floor of the suit property to the Plaintiffs, whenever they ask the Defendant No.1 to vacate.
4. It is additionally averred that during one of visits many years later, it was noticed that the defendant no.1 has trespassed into part of the ground floor and barsati without the consent of the plaintiff. The plaintiffs lodged protest, but when the defendant undertook to vacate the same, as and when required by the plaintiff, the plaintiff condoned the illegal trespass. Sometime in November 2007, the plaintiff no.1 requested defendant no.1 to vacate the suit property, the defendant requested for sometime to vacate the same. In November-December 2008, again similar request was made by the plaintiff, but the defendant turned down the said request. It is CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 5 of 72 pleaded and I quote:
That in this event of the matter, having no other alternative the Plaintiffs got issued a notice dated 02.01.2009, through their Advocate Shri Rajesh Yadav, thereby revoking the Defendant No.1's license to use the first floor of the said property with effect from the midnight of 31 January, 2009.
It was also alleged by the Defendant No.1 that he was not inducted as a licensee by the Plaintiffs. It was alleged that the Defendant No. 1 had never agreed to vacate the first floor of the property of the Plaintiffs and handover possession of the first floor as and when required by the Plaintiffs. The Defendant No.1 had also wrongly mentioned that he is not in possession of any part of the ground floor and the barsati floor.
That the Defendant No.1 further made utter false allegations in his reply dated 09.01.2009, that the Plaintiffs had entered into an agreement to sell of the first floor of the said property with the wife of the Defendant No.1 i.e. the Defendant No.2 and in part performance of the alleged agreement to sell, the possession of the first floor was given to the wife of the Defendant No.1 i.e. the Defendant No.2 herein.
That the Plaintiffs sent a reply/rejoinder dated 04.02.2009, through their Advocate Shri Rajesh Yadav to the reply dated 09.01.2009 of the Defendant No.1, inter alia, strongly denying and disputing all such allegations of the Defendant No.1.
The Plaintiffs also called the Defendant No.1 to communicate and disclose as to who is in possession of the part of the ground floor and barsati floor of the property bearing CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 6 of 72 No.B-5/138, Safdarjung Enclave, New Delhi, as it is only the Defendant No.1 and his family members, who are in illegal and unauthorized occupation of the same.
That despite service of the said reply/rejoinder dated 04.02.2008, the Defendant No.1 did not respond. Neither the copy of the alleged agreement to sell was furnished nor other information was supplied and conveyed, as sought.
That in this event of the matter, the Plaintiffs sent another notice dated 24.02.2009, though Shri Rajesh Yadav, Advocate, thereby calling upon the Defendant No.1 to comply with the terms of the previous reply/rejoinder notice dated 04.02.2009 within a week from the date of receipt of the notice.
That the Defendant No.2 sent a reply dated 06.03.2009, through Shri Kalka Prasad Aggarwal, Advocate, inter alia alleging that the Plaintiffs vide agreement dated 3rd January, 1996 had agreed to sell the first floor of the House No.B-5/138, Safdarjung Enclave, New Delhi to the Defendant No.2 for a consideration of Rs.6,00,000/- (Rupees Six Lacs only) out of which Rs.20,000/- (Rupees Twenty Thousand only) was paid to the Plaintiffs and the balance amount was payable at the time of the execution of the Sale Deed. It was further alleged that the Defendant No.2 was placed in possession of the first floor of said premises in part performance of the agreement. It was alleged that the Plaintiffs besides executing the Agreement had also executed a General Power of Attorney, their respective Wills and a Possession Letter.
That the Plaintiffs submit that they had never CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 7 of 72 entered into any agreement to sell with the Defendant No.2. The Plaintiffs have not received any sale consideration from the Defendant No.2. It appears from the conduct of the Defendants that they have forged and fabricated an alleged agreement to sell purportedly on behalf of the Plaintiffs with the Defendant No.2 and the alleged Wills, Possession Letter and GPA. The Defendants have not furnished copies of the alleged documents relied upon by them to the Plaintiffs, otherwise the Plaintiffs would have initiated appropriate criminal action.
Averments pertaining to Ground Floor and Barsati.
That subsequently, many years later it was noticed by the Plaintiffs, during their visits to India, that by misusing the permission granted by the Plaintiffs, the Defendant No.1 has trespassed into part of the ground floor portion comprising two bed rooms, two bathrooms, kitchen, and the barsati Floor, which occupation was without the consent of the Plaintiffs. The Defendant's possession in respect of part of the ground floor and barsati floor, as stated above, has been illegal and unauthorized. The Plaintiffs took up the matter during their various visits to India, with the Defendant No.1 but given the sensitive relationship with the Defendant No.1 who is elder brother of the Plaintiff No. 1, the Plaintiff No. 1 respectfully pleaded with the Defendant No.1 on each visit to remove his unauthorized possession over part of the ground floor and barsati floor of the suit premises, which was without any knowledge and consent of the Plaintiffs. The Defendant No.1 stated that due to his growing CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 8 of 72 need, he has occupied these portions, but he undertook to vacate it, as and when the Plaintiffs require the same. Therefore, again, keeping in view the close relationship with the Defendant No.1, the Plaintiffs did not initiate any action on the acts of illegal trespass of the Defendant No.1 condoned the said acts, at that stage only. The entire portion in possession of the Defendants is shown in red colour in the site plan and is hereinafter referred to as the "suit premises".
That in the month of November, 2007, the Plaintiff No.1, while being on a visit to India, requested the Defendant No.1 to handover the possession of the suit premises to him, and shift to his flat in Janak Puri, as the Plaintiff No1 expressed his bonafide desire to return to India and live peacefully in his own home i.e. the said property.
That the Plaintiff No.1 was in India in the months of November/December, 2008. The Plaintiff No. 1 requested the Defendant No.1 to vacate the portions in his possession and handover the same to the Plaintiffs. The Defendant No.1 turned down the said request of the Plaintiff No. 1, without any basis, justification or reason.
It was also stated in the said notice that since the Defendant No.1 has illegally trespassed and occupied the portion of ground floor comprising two bed rooms, two bathrooms and kitchen, and the Barsati Floor of the said property, therefore, the Defendant No.1 should handover the possession thereof, to the Plaintiffs on or before the midnight of 31 January, 2009.
The notice was duly served upon the Defendant CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 9 of 72 No.1. The Defendant No.1 sent a reply to the said notice of the Plaintiffs through Sh. Kalka Prasad Aggarwal, Advocate, dated 09.01.2009. In the said reply of the Defendant No.1 it was alleged that the Plaintiffs are not in occupation of the ground floor of the property bearing No.B-5/138, Safdarjung Enclave, New Delhi, on 2nd January, 2009, and have not been in occupation thereof prior thereto or after the said date.
That regarding the other false plea of the Defendant No.1 that the Plaintiffs are not in possession of any part of the ground floor of the said property, it is stated that the same is an utter lie. The Defendant No.1 has illegally and unauthorisedly occupied two bedrooms, two bathrooms and kitchen on the ground floor portion of the said property. It is stated that the remaining portion of the ground floor is still in possession of the Plaintiffs, under their lock and key. The Defendant No.1 has falsely alleged that he has no concern with the possession of the ground floor and the barsati floor of the said property, which is a totally incorrect fact. The Defendant No. 1 along with his family members are in unauthorized and illegal occupation or part of the ground floor and the barsati floor of the said property.
That the Defendant No.2 has no independent right in respect of the suit property. She is staying in the suit property being the wife and family member of the Defendant No.1. The Defendant No.2 has been arrayed as a party, as the Defendants have taken up a false stand that the Plaintiffs had agreed to sell the first floor of the suit property to the Defendant No.2.
That the mother of the Plaintiff No.1 and Defendant CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 10 of 72 No.1 is staying with the Defendant No.1 in the suit premises. At the instigation of the Defendant No.1, the mother Smt. Shyama Bhargava has filed a case under the Provisions of Protection of Women from Domestic Violence Act, 2005 (43 of 2005) against the Plaintiff No. 1. The Plaintiff No.1 has received notice from the Court of Ms. Veena Rani, Metropolitan Magistrate, Patiala House Courts, for 27.03.2009. Till date the Plaintiff No.1 has only received copy of the notice and is not aware about the contents of the Complaint/Application filed by Smt. Shyama Bhargava.
That subsequent to filing of the present Suit and completion of the pleadings, the Plaintiffs filed an application bearing I.A. No.9247/2010 under Order 12 Rule 6 CPC for a Judgement/Decree in their favour, against the original Defendants i.e. the Defendant Nos. 1 and 2, for possession of the part of the ground floor which is comprising two bedrooms, two bathrooms and kitchen as well as the barsati floor of the suit premises.
That subsequent to the said application of the Plaintiffs under Order 12 Rule 6 CPC, an application bearing IA No. 11329/2010, under Order 1 Rule 10(2) read with Section 151 CPC was filed by Smt. Shyama Bhargava, the mother of the Plaintiff No.1 and the Defendant No.1, for her impleadment as Defendant No.3 in this suit. It was alleged by Smt. Shyama Bhargava in her application that she is residing on the ground floor of the suit premises and since she is invalid and disabled, she is being nursed and looked after by a permanent full time CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 11 of 72 maid/nurse, who is residing in the Servant Quarter in the Barsati. The said application of Smt. Shyama Bhargava was opposed by the Plaintiffs and it was stated by the Plaintiffs that Smt. Shyama Bhargava is not living independently or with any independent right on the ground floor and the Barsati floor and that she is living with the Defendant No.1 as part of his family and is being looked after by the said Defendant No.1. It was denied that Smt. Shyama Bhargava is in lawful possession of the ground floor and barsati floor as alleged.
That it is the contention of the Plaintiffs that the Defendant No.1 and his family including Smt. Shyama Bhargava are occupying the part of the ground floor and the barsati floor. The Defendant No.1 and his son Shri Div Bhargava are running an Optical Shop by the name of "OMB Perfect Lenses" from the part of the ground floor, of the suit premises, which itself proves the fact that Smt. Shyama Bhargava is not living alone in the part of the ground floor of the suit premises.
That the application bearing I.A. No.11329/2010 of Smt. Shyama Bhargava under Order 1 Rule 10(2) CPC came up for hearing before this Hon'ble Court on 20.12.2011. After some hearing, it was stated on behalf of the Plaintiffs that they have no objection, in case Smt. Shyama Bhargava is impleaded as Defendant No.3. This Hon'ble Court in the order dated 20.12.2011 observed that Smt. Shyama Bhargava is a necessary and proper party to the Suit since the Plaintiffs are seeking possession in respect of the whole property of which Smt. Shyama Bhargava is in part possession. In this view of the matter CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 12 of 72 Smt. Shyama Bhargava was directed to be impleaded as Defendant No.3 in the Suit.
That it is though the contention of the Plaintiffs that the Defendant No.3 is living with the Defendant No.1, as part of his family and not in exercise of any right or in individual capacity, but in view of her allegations of being in possession of part of the ground floor and barsati floor, the relief of possession and mesne profits are also being claimed against her, severally, and jointly and severally, along with Defendant Nos. 1 and 2.
The prayers for possession etc. That the Plaintiffs are thus seeking a decree of possession, in respect of the first floor, comprising a drawing- cum-dining room, three bedrooms, three bathrooms, kitchen, balcony against the Defendant Nos. 1 and 2. The Plaintiffs are seeking decree of possession in respect of part of the ground floor, comprising two bedrooms, two bathrooms and kitchen and the barsati floor against all the three Defendants, jointly and severally.
5. The other prayer pertain to grant of damages, etc. WRITTEN STATEMENT ON BEHALF OF THE DEFENDANTS NO. 1 AND 2.
Averments/defence qua the Ground Floor and Barsati.
The Defendants are the residents of the First Floor comprising of a drawing- cum-dining room, three bedrooms, CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 13 of 72 three bathrooms, kitchen and a balcony situated at B-5/138, Safdarjung Enclave, New Delhi referred to as the "Suit Premises"). 110029 (hereinafter referred to as the "Suit Premises").
It is respectfully submitted that the Plaintiffs have erroneously stated their address as B-5/138, Safdarjung Enclave, New Delhi 110029. The Plaintiffs are not in possession of any part of the Suit Premises, either at the time of institution of the Suit or prior to the institution of the Suit and are citizens of the United States of America residing there.
That the Plaintiffs have no cause of action against the Defendants in the present Suit. It is submitted that the Defendants are not in any manner concerned with the ground floor and barsati portions of the Suit Premises and are not in possession of the same. The Defendants have at no point in time been in possession of the ground floor or barsati and have consistently maintained the same stand through its various replies to the notices sent to the Defendants....
...It is false to state that the mother of the Defendant No.1 and the Plaintiff No.1 resides with the Defendant No.1 and that she has filed a case under the Provisions of Protection of Women from Domestic Violence Act, 2005 (43 of 2005) under the instigation of the Defendant No. 1.
...It is denied that the Defendants are occupying part of the ground floor or the barsati floor. It is further denied that the Defendant No. 1 is running any optical shop by name of 'OMB Perfect Lens'. It is submitted that Defendant No. 1 has no CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 14 of 72 concern with 'OMB Perfect Lens'. The Defendant No. 1 has never remained in possession of ground floor of the suit premises at any time.
Averments/defence qua the First Floor.
The Plaintiffs have failed and avoided to mention that the Plaintiffs had executed an agreement to sell dated 03.01.1996 ("Agreement to Sell") which was duly signed and attested alongwith a letter of possession also dated 03.01.1996 in favour of the Defendant No. 2 in respect of the first floor of the Suit Premises, consisting of drawing-cum-dining room, three bedrooms, three bathrooms, kitchen and a balcony (hereinafter referred to as the "First Floor") and further to which the Defendant No. 2 was placed in possession of the First Floor in part performance of the Agreement to Sell. It is also pertinent to mention The Plaintiffs also accepted Rs. 20,000/- as an advance towards the sale of the First Floor as part payment. The Defendant No. 2 has always wanted to complete the transaction with the Plaintiffs. However, the Plaintiffs have failed and avoided to perform their part of the transaction by executing a sale deed in favour of the Defendant No. 2 in respect of the First Floor.
That the Plaintiffs had agreed to sell the First Floor of the Suit Premises to the Defendant No.2 for a consideration of Rs. 6,00,000, further to which the Agreement to Sell was executed between the Plaintiffs and the Defendant No.2 and the Defendant No. 2 paid the Plaintiff a sum of Rs 20,000/- as CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 15 of 72 earnest money and the balance consideration was to be paid at the time of execution of the sale deed, which was to be executed by the Plaintiffs on obtaining the requisite permissions necessary for sale of the First Floor. It is pertinent to mention that such permissions could only have been procured by the person(s) in whose name the property is registered i.e. the Plaintiffs in the present case. Further to the execution of the Agreement to Sell the Plaintiffs also executed a power of attorney in favour of Sh. Div Bhargava son of the Defendant Nos. 1 and 2, which was duly notorised and attested by witnesses. The Plaintiff No. 2 also executed a Will in favour of the Defendant No. 1, which was at the insistence of the Defendant no.2, which stated that that after the death of Plaintiff No. 2 the First Floor shall be owned by the Defendant No. 1. The Will was duly attested by witnesses. In part performance of the contract between the parties, the Defendant No. 2 was granted possession of the First Floor. In this respect the Plaintiffs issued a Letter of Possession, as the Agreement to Sell did not mention this issue.
That for executing a Sale Deed in respect to the First Floor the Plaintiffs required several permissions from government authorities, one of which was for the purpose of converting the property leasehold to freehold. However the Plaintiffs did not obtain the requisite permissions for sale of the First Floor. It is pertinent that for the purposes of obtaining the required permissions the Plaintiffs presence was required, failing which such permissions could not be obtained On the other hand the Defendant No. 2 was ready and willing to pay the remaining CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 16 of 72 amount of Rs. 5,80,000 and is still willing to perform her part of the contract in respect of the First Floor, including paying for the expenses incurred in procuring the necessary permissions for sale of the First Floor.
That the Plaintiffs had never refused to perform their part of the contract before the service of the notice dated 02.01.2009. The Plaintiffs in November- December, 2008 had promised to procure the necessary permissions for the execution of a sale deed. The Plaintiff No. 1 at that time had represented to the Defendants that the Plaintiff No.2 had not accompanied him and therefore could not get the Suit Premises converted from leasehold to freehold and that on his next trip when he is accompanied by Plaintiff No. 2 he would get the necessary permissions and execute the sale deed in favour of the Defendant No.2.
...It is respectfully submitted that the Defendant No.2 is in possession of the First Floor as an Intended Vendee of the First Floor and is in part performance of the Agreement to Sell. In this respect, reference may be made to Section 53A of the Transfer of Property Act, which squarely covers the possession of the Defendant No.2 and applies to the present case. The Plaintiffs are estopped from taking possession of the First Floor from the Defendant No.2. The Plaintiffs have no right to claim the relief of possession, mesne profit and or damages against the Defendants and all allegations to the contrary are vehemently denied.
Averments in support of the Counter Claim.
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 17 of 72That the Plaintiffs had agreed to sell the first floor of the property being No.B-5/138, Safdarjang Enclave, New Delhi to Defendant No.2 for a consideration of Rs. Six Lakhs and an Agreement to Sell dated 03.01.1996 was executed by the Plaintiffs in favour of the Defendant No.2 for the sale of the aforesaid entire first floor and in the said Agreement it was provided that the agreed consideration for the sale of the first floor is Rs. Six Lakhs out of which the Defendant No.2 has paid a sum of Rs.20,000/- as earnest money and the balance consideration was to be paid at the time of the execution of the sale deed which was to be executed by the Plaintiffs after obtaining requisite permissions as mentioned in para 4 of the said Agreement. The said Agreement was duly signed by the Plaintiffs and Defendant No.2 in the presence of witnesses. Along with the said Agreement to Sell a power of attorney was executed by the Plaintiffs at the instance of the Defendant No.2 in favour of her son Shri Div Bhargava. The said power of attorney was duly signed by the plaintiffs and was attested by two witnesses and the Notary Public. The Plaintiff No.1 had executed a Will dated 03.01.1996 at the instance of the Defendant No.2 bequeathing the first floor of Property No.B-5/138, Safdarjang Enclave, New Delhi in favour of Shri Vijay Bhargava, the husband of the Defendant No.2. The said Will was also attested by two witnesses. The Plaintiff No.2 had also executed a Will dated 03.01.1996 at the instance of the Defendant No.2 in respect to the first floor of first floor of Property No.B-5/138, Safdarjang Enclave, New Delhi in favour of Shri Vijay Bhargava, the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 18 of 72 husband of the Defendant No.2. The possession of the property was given to the Defendant No.2 by the Plaintiffs in part performance of the contract, however, this fact was not mentioned in the Agreement to Sell. Therefore, a letter of possession was executed by the Plaintiffs on the same day i.e. 03.01.1996 in which the Plaintiffs had acknowledged to have given the possession of the First Floor in pursuance of the Agreement to Sell and it was specifically mentioned as under:
"As our Stay in India is limited and we have to go back as these permissions may take long time as such we have decided to handover the possession of the property agreed to be sold i.e. House No.B-5/138, Safdarjang Enclave, New Delhi and also to appoint attorney to execute Sale Deed on our behalf."
That the Defendant No.2, thus, came into possession of the first floor which was agreed to be sold to her in part performance of the Agreement to Sell dated 03.01.1996.
The Plaintiffs never obtained the requisite permissions for executing the sale deed in favour of the Defendant No.2. Whenever the Plaintiffs/ Plaintiff No. 1 happened to visit India the Defendants reminded them/ Plaintiff No. 1 to obtain necessary permission so that a Sale Deed is executed by the plaintiffs in favour of the Defendant No.2. The Defendant No.2 was always ready and willing to perform her part of the contract and to pay the balance consideration of Rs.5,80,000/- (Rupees Five Lakhs Eighty Thousand) and was always ready and willing and still is ready to bear the necessary expenses for obtaining all permissions referred to in the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 19 of 72 Agreement to Sell for getting the Sale Deed executed and registered in favour of the Defendant No.2.
That after execution of the Agreement to Sell dated 03.01.1996, the Defendant No.2 had to spend a huge amount on the renovation of the First Floor as the same was in a dilapidated condition. The Defendant No.2 carried out exterior repairs, bath Rooms and Kitchen were provide with new tiles and almiras, etc. That the Defendant No.2 is entitled to the specific performance of the Agreement to Sell dated 03.01.1996 after directing the Plaintiffs to obtain the necessary permission for transfer of the first floor in favour of Defendant No.2 at the cost and expenses of Defendant No.2 and thereafter to execute and register the Sale Deed in favour of the Defendant No.2 on furnishing the requisite stamp paper.
That the Plaintiffs never refused to perform their part of the contract before the service of the notice dated 02.01.2009. The Plaintiffs have failed to sign the documents that are required for obtaining necessary permissions. The Plaintiff No. 1 even in November-December, 2008 had promised to obtain necessary permissions and to execute the necessary sale deed. The Plaintiff No. 1 at that time had represented that the Plaintiff No.2 has not accompanied him and therefore on the next visit to India he would bring his wife with him and would apply for the conversion of the Suit Premises including the First Floor from leasehold rights into freehold and thereafter execute the necessary Sale Deed in favour of the Defendant No.2. That the Plaintiff No.1 after making the aforesaid representations did not CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 20 of 72 meet the Defendants and left for U.S.A. without any information to the Defendants.
That the Plaintiffs then served notice dated 02.01.2009 upon the Defendant no. 1 through their advocate and in the subsequent notices dated 04.02.2009 and 24.02.2009 denied the execution of the Agreement to Sell and refused to perform their part of the contract for the first time.
That the claim for specific performance is within time as the refusal by the Plaintiffs to perform their part of the contract was shown to the Defendant No.2 on service of the notice dated 24.02.2009.
Written Statement of Defendant no.3.
It is submitted that the plaintiffs have concealed material facts from this Hon'ble Court by not disclosing that Late Smt. Shyama Bhargava, mother of answering defendant and the plaintiff No.1 had purchased the portion in dispute of the ground floor of property in question in the year 1984 after paying a consideration amount of about Rs 8 Lakhs to the plaintiffs.
That the present suit for possession in respect of the portion in possession of Smt Shyama Bhargava as shown in red colour to the site plan attached with the plaint on the ground floor and the barsati floor is barred by time and is liable to be rejected on this ground alone.
It is submitted that Smt Shyama Bhargava had been in possession of the disputed portion of the ground floor of the suit property being the owner thereof and continued to remain in CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 21 of 72 possession of the same till her death. The answering defendant came into possession of the said portion after the death of Smt Shyama Bhargava. It is submitted that Shri Sunil Bhargava and Mrs Neena stayed for some time in the remaining portion of the ground floor of the suit property and thereafter the parents of the plaintiff no 2 moved in the said portion and vacated the same in 1996. After the said portion was vacated by them, Shri Div Bhargava came into possession of the said portion in the beginning of 1996 and has been utilizing the same for the business of OMB Perfect Lenses of which he has been the sole proprietor since inception.
As stated above the disputed portion of the ground floor of the suit property had been in possession of Late Smt Shayama Bhargava till her death and the remaining portion of the ground floor has been in possession of Shri Div Bhargava since 1996. The barsati floor had been in possession of Smt Shyama Bhargava since 1988 and it had been used by her maid/nurse. The defendants no 1 and 2 never remained in possession of the barsati floor. The possession of Smt Shyama Bhargava in respect of the ground floor of the suit property and the barsati floor had been continuous, open, hostile and adverse to the plaintiffs till her death and the plaintiffs have been left with no right, title or interest in the said portion which has been inherited by the answering defendant after the death of Smt Shyama Bhargava and the said portion has been in exclusive possession of the answering defendant since the death of Smt Shyama Bhargava.
It is further pertinent to record that Late Smt CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 22 of 72 Shyama Bhargava has filed an application under Section 12 of the Domestic Violence Act against the plaintiffs inasmuch as the plaintiffs has tried to disposes and evict the mother of the answering defendant from her lawful possession of the property in dispute in the month of December, 2008. It is further pertinent to record that Late Smt. Shyama Bhargava was compelled to approach the Ld. Metropolitan Magistrate, New Delhi in the year 2009 by filing an application under Section 12 of the Domestic Violence Act, 2005 against the plaintiff No.1. By the said application Late Smt. Shyama Bhargava sought amongst other reliefs, restraining the plaintiff from alienating, disposing and encumbering the property in dispute.
It is not denied that Smt. Shyama Bhargava was residing on the Ground Floor and since she was invalid and disabled, she was being nursed and locked after by a permanent full time maid/nurse who was resisting in the servant quarter in the Barsati Floor. It is further submitted that Late Smt. Shyama Bhargava was being looked after by the defendant No. 1 and 2. It is further reiterated that Smt. Shyama Bhargava was in lawful possession of the Ground Floor and Barsati Floor till her death.
Replication to Written Statement of Defendant no.1 and 2.
6. The plaintiffs questioned the agreement to sell etc. set up by the defendant no.1 and 2 in following terms:
1. AGREEMENT TO SELL
(i) The alleged agreement to sell does not bear the signatures of CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 23 of 72 the Plaintiffs. Their signatures have been forged and the document has been fabricated.
(ii) The alleged agreement to sell does not bear the complete date as the month is missing.
(iii) The alleged agreement to sell is running into three pages, though the pagination on the top shows the last page as page No.4. There is no page No.3, however at the bottom of page No.2 it is written "CONTD......3", which fact in itself does not inspire any confidence.
(iv) There are no signatures of the Plaintiffs on the first two pages of the alleged agreement.
(v) The alleged signatures on typed 'page 4 of the alleged agreement to sell are not of the Plaintiffs. An attempt has been made to copy the signatures of the Plaintiffs. The admitted signatures of the Plaintiffs on the record of this case may kindly be compared with the disputed signatures of the Plaintiffs appearing on all the alleged documents, under Section 73 of the Evidence Act, by this Hon'ble Court. The Plaintiffs shall also be filing an appropriate application under Section 45 of the Evidence Act before this Hon'ble Court for seeking opinion of the expert and for sending the alleged documents containing the disputed signatures of the Plaintiffs to Central Forensic Science Laboratory.
(vi) The alleged signatures on 'Page 4' of the Plaintiffs are below the typed words "FIRST PARTY". Normally the signatures are always above the typed portion.
(vii) The alleged agreement to sell mentions incorrect address of CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 24 of 72 the Plaintiffs. The address of the Plaintiffs in 1996 was 11037 Gaither Farm Road, Maryland 21042. The address of the Plaintiffs mentioned in the alleged document i.e. 8289 Main Street Suit No. Ellicott City, Maryland 21043 USA, was the business address of the Plaintiff No.1. The said address could not be mentioned by the Plaintiffs as their residential address in the documents.
(viii) The reverse of the stamp paper, which bears the stamp/seal of the Stamp Vendor, does not give the purpose of the Stamp Paper.
(ix) In 1996, the unregistered Agreement to sell used to be written on Stamp Paper of Rs.2/- and not on the Stamp Paper of Rs.10/-.
(x) There is no mention of the name of the Notary, who has allegedly attested/notarized the alleged agreement to sell.
(xi) The notarization is totally illegal and not as per the Notaries Act.
(xii) The complete particulars required to be noted on the document by the Notary are missing.
(xiii) The alleged witnesses are the persons who are confidants of the Defendants.
(xiv) The alleged reason mentioned in the alleged agreement to sell on behalf of the Plaintiffs/Sellers is that they are selling the first floor of the property No.B-5/138, Safdarjung Enclave, New Delhi, as the house is not in the use and, therefore, they have decided to sell the entire first floor. It is stated that the Plaintiffs had never intended to sell the said property or any part thereof as CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 25 of 72 they had purchased it so that they can live comfortable in their old age, to be close to their friends and relatives. It is stated that had the Plaintiffs not required the property, they would not have purchased it at the first place. The property was purchased to be kept.
(xv) The alleged reason given on behalf of the Sellers is totally unconvincing. Neither the Plaintiffs had any legal necessity nor any bonafide need to sell the first floor of the said property nor they ever intended to do so. The Plaintiffs were comfortably placed financially in the year 1996, and for that matter in most part of their life. They had no compulsion of selling the said property or any part thereof. They had absolutely no desire to sell the said property or any part thereof.
(xvi) Had the Plaintiffs been in the need of money, they would have immediately executed and registered the sale deed and received the consideration. The Plaintiffs would not have entered into any agreement to sell, just by accepting Rs.20,000/- as the advance/earnest money. The Plaintiffs would have asked the Defendants to complete the sale transaction immediately or within a reasonable period of time. The Plaintiffs were not to gain by waiting for endless time, if they had actually executed the Agreement to Sell, for completion of the sale transaction.
(xvii) The alleged agreement to sell does not mention about the mode and manner of payment of Rs.20,000/-, whether it was paid in cash or by way of a cheque.
(xviii) The figure of Rs.20,000/- as advance/earnest money has CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 26 of 72 been clandestinely taken by the Defendants, as the said amount is within the permissible limit of a cash transaction, if it is assumed for the sake of arguments but not admitted, that the alleged amount Rs.20,000/- was paid in cash.
(xix) This is a rare kind of an agreement to sell where no limit or period for completion of the sale transaction is prescribed or fixed.
(xx) The other terms of the alleged agreement to sell such as permission to be required from the competent authority under the Urban Land (Ceiling Regulation) Act, 1976 were not required to be obtained.
(xxi) There are no requirement to obtain Income Tax clearance on the prescribed form No.34-A. (xxii) Normally, such permissions are required to be obtained by the Seller, but surprisingly this is one off agreement to sell, where the permission is required to be obtained by the Purchaser. (xxiii) The Defendant No.2 has signed the alleged agreement to sell, despite the fact that the word "SECOND PARTY" is neither typed nor handwritten or mentioned on the last page. (xxiv) No time period has been prescribed to obtain the alleged permissions. However, most peculiarly a time period of two months has been prescribed for the sellers to execute sale deed after obtaining of the alleged permissions by the purchaser. It has ostensibly been done by the Defendants, to somehow bring their alleged claim of specific performance as raised in the counter claim, within the period of limitation.
(xxv) It is stated without prejudice to the submissions made CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 27 of 72 herein that the alleged agreement to sell is forged and fabricated by the Defendants; the claim of specific performance of the Defendants is barred by limitation. Assuming for the sake of arguments but not admitting that there was an alleged agreement to sell between the parties, the silence of the Defendants for 13 years is most unbelievable. No prudent person will believe in that. There was never any notice by the Defendants to the Plaintiffs calling upon them to execute and register the sale deed, which establishes beyond doubt that there was no agreement to sell.
(xxvi) The Defendants have allegedly claimed that the possession of the first floor of the said property was handed over to them in pursuance to the alleged agreement to sell, however the said alleged fact does not find mention in the alleged agreement to sell.
(xxvii) The alleged agreement to sell is full of contradictions. There are also contradictions between the alleged agreement to sell and the claim of the Defendants made in their counter claim. The alleged agreement to sell as well as the alleged claim of the Defendants do not inspire any confidence.
(B) LETTER OF POSSESSION
(i) The alleged Letter of Possession does not bear the signatures of the Plaintiffs. Their signatures are forged and fabricated on 'Page 3' on the alleged Letter of Possession.
(ii) First two pages of alleged letter of possession do not bear the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 28 of 72 signatures of the Plaintiffs.
(iii) The alleged Letter of Possession have certain portions which are in bold, which raise doubt on the authenticity and genuineness of the said document.
(iv) Despite the fact that the entire document is typewritten, but still there are some words and figures written in hand, which raises serious doubt on the validity of the document?
(v) Normally letter of possession is not so lengthy. Reasons of the sellers selling a property are never mentioned in a letter of possession. The history of the sellers purchasing or acquiring title to the property is never given in a letter of possession.
(vi) A document of possession is generally signed by both the parties. The purchaser who receives the possession also signs the document as a token of having received the possession. The Defendant No.2 has not signed this document.
(vii) It is never heard or seen that a purchaser gets possession of the property which is subject matter of sale on just paying about 3.4% of the total sale consideration as an advance money.
(viii) The possession letter is computer generated whereas the other alleged documents written on stamp papers are not computer generated.
(ix) In this document also the address mentioned of the Plaintiffs is not their residential address.
(C) POWER OF ATTORNEY
(i) The alleged Power of Attorney, which is though CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 29 of 72 nomenclatured as Power of Attorney, does not mention the words "Power of Attorney" on top of the document as is usually done.
(ii) The alleged power of attorney does not bear the signatures of the Plaintiffs. Their signatures are forged and fabricated on Page 3 of the document.
(iii) The first two pages of the alleged Power of Attorney do not bear the signatures of the Plaintiffs.
(iv) The Power of Attorney giving power to sell an immovable property is always by way of a registered instrument. This document is not registered, since it was forged and fabricated.
(v) It is rarely seen in a Power of Attorney that the Executant gives the reasons of selling the property, particularly when the purchasers and the alleged attorney are two different persons.
(vi) The sale consideration of the property or the details of the earnest/advance money are never mentioned in a Power of Attorney.
(vii) In the year 1996 the alleged attorney Div Bhargava was only 25 years old. He was too young to be appointed as an attorney. In 1996, Div Bhargava was studying in medical college and, therefore, he could not have been appointed as an attorney.
Replication to Written Statement of Defendant no.3.
7. The claim of defendant no.3 was refuted in the following terms:
It is further pertinent to mention here that Smt. Shyama Bhargava had filed an application under Section 12 of the Protection of Woman from Domestic Violence Act, 2005 CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 30 of 72 against the Plaintiff No.1. In that complaint her allegation was that she had purchased the property bearing No.B-5/138, Ground Floor, Safdarjung Enclave, New Delhi after paying the entire consideration amount of Rs.8,00,000/-, in the name of the present Plaintiffs. It is stated that Shri Div Bhargava was appointed as an attorney by Smt. Shyama Bhargava in the said case. He had also signed the application. In the said case, there was neither any allegation of Smt. Shyama Bhargava being in possession of Barsati Floor nor any allegation of Shri Div Bhargava running OMB Perfect Lenses from part of the Ground Floor. The record of the said case also proves the fact that Smt. Shyama Bhargava was living with the Defendant No.1.
Some peculiar circumstances noticed in the pleadings.
8. The following points are required to be kept in mind before delving in the issues framed:
a. It is note worthy that the defendant no.1 and 2 have categorically stated in their written statement that they had nothing to do with the ground floor and barsati floor and that they were never in occupation of the same. At the same time, they have disclosed the presence of the mother of the parties in the said ground floor as well as of one OMB Perfect Lens; b. The plaintiffs have averred that the defendant No.1 and his son Shri Div Bhargava are running an Optical Shop by the name of "OMB Perfect Lenses" from the part of the ground floor, of the suit premises, which itself proves the fact that Smt. Shyama Bhargava was not alone in the ground floor portion of the suit CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 31 of 72 premises, in case her possession is established; c. As far as alleged trespass into the ground floor and first floor is concerned, the plaint does not give any particulars of the day, month or year when the said alleged trespass took place or was discovered by the plaintiffs;
d. That despite a claim by the plaintiffs that defendant no.1 and 2 had trespassed into the ground floor and barsati floor, surprisingly, the plaintiffs continued to accept the defendant's occupation of the first floor as a mere licencee and also claimed that the trespass was condoned;
e. That on the death of the mother of the parties i.e. the original defendant no.3, the plaintiffs have impleaded her daughter as the only legal representative to the said defendant no.3.
Issues:
9. Vide order dated 23.10.2013, following issues were framed:
1. Whether Smt. Shyama Bhargava (deceased defendant No.3) had purchased the portion in dispute of the ground floor of the suit premises in question in the year 1984, after paying a consideration amount of Rs.8,00,000/- to the plaintiff? OPD-3.
2. Whether the plaintiffs are entitled to a decree of possession of the suit premises as per prayer clauses (a) and (b) of the amended plaint? OPP.
3. Whether plaintiffs are entitled to a CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 32 of 72 decree of Rs.1,75,000/- as damages?OPP
4. Whether the plaintiffs are entitled to a decree of mesne profits/damages @ Rs.1,00,000/- per month from the date of the suit till the date of handing over of vacant possession of the suit premises?OPP
5. Whether the plaintiffs are entitled to interest? If so, at what rate and for what period? OPP
6. Whether the agreement to sell dated 3.1.1996 is forged, fabricated, created, manufactured and manipulated by the defendant Nos. 1 and 2? OPP.
7. Whether the agreement to sell was executed by the plaintiffs in favour of defendant No.2 on 3.1.1996 and defendant No.2 is entitled to a decree of specific performance in respect of first floor of the suit premises? OPD-2
8. Relief.
Evidence of Plaintiffs.
10. Plaintiff no.1 stepped into the witness box as PW-1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon documents:
1. Mutation letter dated 23.07.1984 issued by DDA as Ex.P1;
2. True typed copy of letter dated 23.07.1984, regarding sale permission in respect of Plot No.138, Block No.B-5, in Residential Scheme as Ex.P2;
3. Notice dated 02.01.2009, served upon the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 33 of 72 Defendant no.1 as Ex.P3;
4. The reply dated 09.01.2009, sent by the Defendant no.1 through Shri Kalaka Prasad Aggarwal as Ex.P4;
5. The envelope as Ex.P5;
6. The reply /rejoinder notice dated 04.02.2009 of the plaintiff as Ex.P6;
7. Two registered post receipts and AD as Ex.P7;
8. The notice dated 24.02.2009, sent on behalf of Plaintiffs to the Defendant no.1 as Ex.P8;
9. The notice dated 24.02.2009, sent on behalf of Plaintiffs to the Defendant no.2 as Ex.P9;
10. The reply of the Defendant no.2 dated 06.03.2009 as Ex.P10;
11. Certified copy of Sale Deed dated 13.06.1984 as Ex.P11;
12. The site plan showing the extent of construction on the ground floor, first floor and second / barsati floor are as Ex.PW1/1;
13. The courtier receipt as Ex.PW1/2;
14. The registered post receipt as Ex.PW1/3;
15. The UPC as Ex.PW1/4;
16. The two courier receipts as Ex.PW1/5 and Ex.PW1/6;
17. The registered post receipt as Ex.PW1/7;
18. The courier receipt as Ex.PW1/8;
19. The AD card as Ex.PW1/9;
20. The registered post receipt as Ex.PW1/10;
21. The courier receipt as Ex.PW1/11;
22. The AD card as Ex.PW1/12;
23. The envelope as Ex.PW1/13;
24. The certified copies of the application/ complaint filed by Smt. Shyama Bhargava under Section 12 of the Domestic Violence Act alongwith affidavit and Domestic Violence Report Ex.PW-1/14;
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 34 of 7225. The certified copy of Special Power of Attorney executed by Smt. Shyama Bhargava in favour of Mr. Div Bhargava dated 22.12.2008 as Ex.PW1/15;
26. Certified copy of complaint of Senior Citizen Council of Delhi signed by Sh. J.R. Gupta dated 27.11.2008 as Ex.PW1/16;
27. Certified copy of complaint of Smt. Shyama Bhargava dated 25.11.2008 as Ex.PW1/17;
28. Certified copy of complaint of Smt. Shyama Bhargava dated 16.12.2008 as Ex.PW1/18;
29. Certified copy of Form -1 as Ex.PW1/19;
30. Certified copy of affidavit of Smt. Shyama Bhargava as Ex.PW1/20;
31. Certified copy of affidavit as Ex.PW1/21;
32. The document downloaded from the website of "tradeindia.com" as Ex.PW1/22; and
33. The document downloaded from the website of Department of Trade and Taxes, Govt. of NCT of Delhi to O.M.B. Perfect Lens as Ex.PW1/23.
11. This witness was duly cross examined. The plaintiff no.2, never stepped in the witness box and I do not have the benefit of her testimony.
12. Head Constable Vipin Malik was examined as PW-
2. He exhibited the true copy of complaint at Serial No.65 dated 20.12.2008 from Sh. Umesh Kumar Bhargava as Ex.PW2/A. Order of DCP for destruction of record as Ex.PW2/B. He was cross examined by the counsel.
13. Sh. Ravinder Kumar Shamia, Junior Judicial Assistant, Record Room (Criminal), South, Saket Courts was CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 35 of 72 examined as PW-3. He brought the original file pertaining to complaint no. 14/1/09 titled as Smt. Shyama Bhargava Vs. Shri Umesh Bhargava. He was also cross examined by the counsel for defendants.
14. Sh. Avinash Kumar, General Manager, BSES Rajdhani Power Ltd. was examined as PW-4. He exhibited the original letter of December, 2008 as Ex.PW4/A, photocopies of documents-receipts from the Property Tax Department as Mark PW4/A, Passport as Mark PW4/B, copy of sale deed ad Mark PW4/C (14 pages), copy of letter dated 22.09.2009 as Mark PW4/D, copy of letter dated 24.03.2010 as Ex.PW4/B (OSR). He was also cross examined by the counsel for defendants.
15. Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. was examined as PW-5. He exhibited the certified copy of Self Enrollment Form alongwith documents as Ex.PW5/1 (colly) (OSR). He was also cross examined by the counsel for defendants.
16. Ms. Neena Bhargava stepped into the witness box as PW-6. She tendered her evidence by way of affidavit Ex.PW6/A. She was also cross examined by the counsel for defendants.
Defendant's Evidence
17. Smt. Beena Bhargava (defendant no.2) stepped into the witness box as DW-1. She tendered her evidence by way of affidavit Ex.DW1/A. She relied upon the following documents:
1. Draft of Power of Attorney as Ex.D1;
2. Draft of letter of possession as Ex.D2;
3. Draft of agreement to sell as Ex.D3;CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 36 of 72
4. Draft of Will of Sh. Umesh Kumar Bhargava as Ex.D4;
5. Draft of Will of Sh. Nalini Bhargava as Ex.D5;
6. Draft of agreement to sell as Ex.D6;
7. Letter of possession as Ex.D7;
8. Original Power of Attorney as Ex.D8;
9. Will of Sh. Umesh Kumar Bhargava bearing signatures of witnesses Shri S.L. Watwani and Kuldeep Bhargava as Ex.D9; and
10. Will of Smt. Nalini Bhargava bearing signatures of witnesses Shri S.L. Watwani and Kuldeep Bhargava as Ex.D10.
18. Sh. Vijay Bhargava stepped into the witness box as DW-2. He tendered his evidence by way of affidavit Ex.DW2/A. He was duly cross examined.
19. Sh. Anant Kumar Jha, Lower Division Clerk, Department of Trade & Tax, GNCTD was examined as DW-3 and he proved the record pertaining to registration of one M/s OMB Perfect Lens.
20. Sh. Devansh Sharma, Manager, Indian Overseas Bank was examined DW-4. He was duly cross examined.
21. Sh. Kuldeep Bhargava was examined as DW-5. He was also duly cross examined. He was duly cross examined.
22. Sh. Vijender Singh, Assistant Director (Documents), FSL, Rohini, New Delhi was examined as DW-6 to prove his report of examination of signatures on the agreement to sell, etc. set up by the defendant no.2. He was duly cross examined by the counsel for plaintiffs.
23. My issue-wise findings are as follows:
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 37 of 7224. I will deal with issue no.2 first, i.e., Whether the plaintiffs are entitled to a decree of possession of the suit premises as per prayer clauses (a) and (b) of the amended plaint? The same would have to be split into 2 parts and dealt separately, to the extent it deals with the relief of possession qua the first floor and separately, qua the relief pertaining to the ground floor and barsati floor.
25. I would first deal with the relief as far as possession of the first floor is concerned. Issue no.6 i.e., Whether the agreement to sell dated 3.1.1996 is forged, fabricated, created, manufactured and manipulated by the defendant Nos. 1 and 2? would have to be dealt with and decided here itself.
26. As already noted hereinabove that the defendant no.1 and 2 had set up an agreement to sell, possession letter, Will etc. to claim that defendant no.2 was in possession in part performance of contract and that the plaintiffs had failed to perform their part of contract and also concealed the said fact in the plaint. In the examination-in-chief of the plaintiff's witness PW-1, the following is deposed qua the said relief:
The Defendant Nos.1 and 2 have set up a false agreement to sell, letter of possession, Will, Power of Attorney, dated 03.01.1996 which are all forged, fabricated, created, manufactured and manipulated documents created by the Defendants. These alleged documents were never signed and executed by the Plaintiffs.
27. During cross examination, the witness PW-1 was put that the said documents had the signatures of the plaintiffs. The CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 38 of 72 plaintiff no.1 denied his signatures.
28. It is noticed that on 02.08.2017, an application under Section 151 of CPC, filed on behalf of defendant no.1 and 2 for sending the documents to CFSL or any other FSL, came to be decided. The application sought comparison of the admitted signatures of the plaintiffs on the plaint, supporting affidavits and replication with the signatures on the questioned documents i.e. agreement to sell Ex.D6, letter of possession Ex.D7, Power of Attorney Ex.D8 and Wills Ex.D9 and Ex.D10 respectively.
29. Another application was moved on behalf of defendant no.1 and 2 for summoning originals of Ex.DW4/1 to Ex.DW4/4 from Indian Overseas Bank, Safdarjung Enclave, where the plaintiffs had an account. The order dated 02.08.2017, records the objections taken by the plaintiffs to the said application and the said order, to the extent relevant, is being quoted for ease of reference:
In reply it is stated by plaintiffs that plaintiffs have denied the execution of alleged documents. It is stated that alleged documents are forged, fabricated & created by defendants no.1 & 2. It is stated that application is liable to be dismissed. It is stated that expert opinion is not liable to be granted to defendants no.1 & 2. It is stated that specimen signatures of plaintiffs were available on record right from the time of filing & if defendants wanted to send the signatures for comparison then plaintiff ought to have filed an application immediately upon filing of replication. Hence, same are liable to be dismissed.
ld. counsel for both the parties have CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 39 of 72 argued on the lines of their applications and replies.
ld. Counsel for defendants no.1 & 2 has submitted that plaintiff no.1 has denied his signatures on relevant documents & hence his signatures on the disputed documents are liable to be compared with admitted signature by Central Forensic Science Laboratory or any other forensic science laboratory. It is further submitted by him that comparison of signatures could be done by the private examiner but Court in Delhi are not giving much evidenciary value to their report, hence, defendants did not take steps for examination of disputed documents by private handwriting expert. He has further submitted that Hon'ble Supreme Court of India in various judgments has stated to the effect that court should avoid to sit on comparison of signature and same should be done by forensic laboratory....
...
On the other hand Id. Counsel for plaintiff has submitted that this application has been moved only to cause delay in proceedings of the Suit & documents filed by defendants forged & fabricated and court itself can compare the disputed signatures at the time of judgment, hence, same should not be sent to FSL, for comparison.
I have gone through the judgments relied upon by Id. Counsel for defendants no.1 & 2 and find that these judgments support his contentions.
In this suit plaintiffs have sought possession of suit property, claiming that the defendant no.1 is licencee and defendant no.2 being wife of defendant no.2 occupying the suit property with her husband. Other hand, defendants have not only defended the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 40 of 72 suit but also filed counter claim on the basis of the documents GPA, Agreement to Sell, possession letter etc. mentioned in the application claiming that these documents have been executed by the plaintiff in favour of defendant no.2 & has sought decree interalia for specific performance & execution of sale deed. Defendant no.1 & 2 have stated that disputed documents were executed by plaintiffs. Plaintiffs have denied the execution of documents. Only plaintiff no.1 has appeared in witness box in this case & in his cross examination he has denied the execution and signature on documents relied upon by the defendant no.1 & 2.
In view of judgments relied upon by Id. Counsel for defendants no.1 & 2 and facts & circumstances of the present case, this court is of the opinion that alleged signatures of the plaintiffs on documents mentioned in application are liable to be compared with admitted signature of plaintiffs. Defendant no.1 has moved an application for summoning of documents from bank but I find that there is no necessity of summoning the documents from bank for comparison of signature because plaintiffs admitted signature are on record i.e. their signatures put on vakalatnama, plaint, replication, affidavit and statement recorded in evidence and same can be sent to FSL alongwith disputed document.
It cannot be disputed that defendants had opportunity to move this application much earlier and now sending document for comparison of signature to FSL is going to cause delay in present case. Hence, delay likely to be caused, in present case, on account of FSL examination, may be compensated by way of imposing cost upon CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 41 of 72 applicant.
In view of above observation, application filed by defendants for sending the applications mentioned therein to FSL for comparison is allowed subject to cost of Rs.10,000/- in favour of plaintiffs. Other application is dismissed.
Let copies of affidavit and statements which contain the admitted signature of plaintiff no.1, vakalatnama of the plaintiffs and last page of plaint, affidavit of plaintiffs filed alongwith plaint, last page of replication & disputed document alleged to be executed by plaintiffs be sent to FSL Rohini in sealed cover by hand through Ahlmad with proper list with direction to Director, FSL to compare signature of plaintiffs Mr.U K Bhargava and Ms. Nalini Bhargava on disputed documents that are as under:
(i) Agreement to sell Ex.D-6
(ii) Letter of possession dt.3.1.96 Ex.D-7
(iii) Power of Attorney dt.3.1.1996 Ex.D-8
(iv) Wills of plaintiffs Ex.D-8 & D-9 With admitted document/signature on plaint, replication, affidavit and statement and give opinion as early as possible as the matter is at final stage. Memo of parties be also sent alongwith documents containing admitted signatures of the plaintiff.
30. What is surprising is that, even though, the onus to prove that the documents were forged was on the plaintiffs, it was the defendants who were seeking that the documents be sent for examination by CFSL alongwith admitted signatures of plaintiffs. The defendants sought production of the admitted CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 42 of 72 signatures from Indian Overseas Bank, Safdarjung Enclave for the purposes of the said comparison. It is a matter of record that not only the plaintiffs opposed the said application, but they did not make available any contemporaneous signatures of theirs for comparing with the questioned documents. Further, when the defendant's witness from the Indian Overseas Bank DW-4 came with specimen signatures of the plaintiffs, the line of cross examination adopted was as follows:
I have brought the original summoned record related to account No.8196 in the name of Umesh Kumar Bhargava, B-5/138, Safdarjung Enclave, New Dell 110029 which was opened on 17.12.1988. The copy of the account opening form is Exh. DW-1/1.
Related to the same account, Shri Umesh Kumar Bhargava had submitted a mandate form dated 04.01.1990 of which copy is Exh. DW- 4/2.
I have also brought the original summoned record related to account No.8195 in the name of Nalini Bhargava, B- 5/138, Safdarjung Enclave, New Delhi- 110029 which was opened on 26.12.1988. The copy of the account opening form is Exh. DW-4/3.
Related to the same account, Snit.
Nalini Bhargava had submitted a mandate form dated 04.01.1996 of which copy is Exh. DW-4/4.
...
XXXXXX by Ms. Ruchira Arora, Ld. Cl. for Plaintiffs.CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 43 of 72
There is no record showing as to who had submitted Exh.DW-4/2 and DW-4/4. Originals of Exh. DW-4/2 and DW-4/4 were not deposited in my presence.
Q.Whether the bank records show that Urnesh Bhargava and Nalini Bhargava were in Delhi, India on 04.01.1996?
A. It cannot be stated from the summoned record whether Shri Umesh Kumar Bhargava and Smt. Nalini Bhargava were present on 04.01.1996 in Delhi, India.
This record does not show that the signatures of Umesh Kumar Bhargava and Nalini Bhargava on documents Exh.DW-4/2 and DW-4/4, had been verified by the bank.
The Bank does not maintain any separate register showing as to on which date the Exh. DW-4/2 and DW- 4/4 were submitted in the bank. These records do not show that Umesh Kumar Bhargava and Nalini Bhargava had personally come to deposit Exh. DW-4/2 and DW-4/4. It is wrong to suggest that Umesh Kumar Bhargava and Nalini Bhargava had not come to deposit Exh. DW-4/2 and DW-
4/4.
31. However, even though, it was sought to be suggested that the plaintiffs were not in India when the alleged specimen signatures were submitted with bank, no rebuttal evidence was led to show the absence of plaintiffs from India. The passports bearing immigration stamps could have been produced. Why were the plaintiffs trying to disown their signatures on their own CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 44 of 72 bank documents?
32. On an earlier occasion, the FSL refused to give any opinion in the absence of any contemporaneous signatures and third time when the opinion was given in favour of the defendants by the CFSL, the plaintiffs cross examined the said witness DW-6 Sh. Vijender Singh on the aspect of want of contemporaneous signatures. To the extent relevant, his cross examination is reproduced for ease of reference:
It is correct that as per this letter it was felt necessary to have some admitted genuine signatures of contemporary period i.e. 1994 to 1999 of persons concerned. (Vol. However, it is not essential to have admitted signatures of contemporary period). It is correct that in Ex.DW6/P1 it is not mentioned that it is not essential to have admitted signatures of contemporary period.
...
I have seen the report dated 15.01.2018 bearing FSL number 2017/D-
6548. This report was made by Dr. Suneet Kumar, Junior Forensic / Asst. Chemical Examiner (Documents), FSL. I identify the signatures of Dr. Suneet Kumar. The report dated 15.01.2018 is Ex.DW6/P2. It is correct that in report Ex.DW6/P2, it is mentioned by Dr. Suneet Kumar that it is not possible to express any opinion on red enclosed signatures stamped and marked Q-1 to Q-8 in comparision with red enclosed signatures similarly stamped and marked as Mark A-1 to A- 13 and A-14 to A-21 in the absence of material as asked vide office letter dated 29.11.2017. (Vol. I rely upon the bold portion on page 1 of Ex.DW6/P2 from point A to CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 45 of 72 A1). I had not seen the letter Ex.DW6/P1 prior to examining the signatures. However I had seen the report Ex.DW6/P2 prior to examining the signatures. (Vol. As the xerox copy of the same was available in the case file allotted to me). It is correct that in my report Ex.DW6/1, I have not made any reference to considering the report Ex.DW6/P2. (Vol. As the same report was prepared by Dr. Suneet Kumar). I had not requested the Director upon seeing the report Ex.DW6/P2 that the examination of signatures be referred to the author of report Ex.DW6/P2 namely Dr. Suneet Kumar. (Vol.
As Dr. Suneet Kumar had left the job from FSL Delhi when the case was allotted for examination reporting to me). I do not know the exact date when Dr. Suneet Kumar had left FSL. However, he had left FSL for joining Galgotia University prior to the documents for examination having been handed over to me. Dr. Virender Singh who had issued the letter Ex.DW6/P1 is still posted in FSL Rohini. I had not requested the Director FSL to send the referred documents for examination to Dr. Virender Singh. (Vol. The said case was allotted to me by Dr. Virender Singh. I cannot say why it was mentioned in letter Ex.DW6/P1 that the admitted genuine signatures of contemporary period i.e. 1994 to 1999 of the persons concerned be provided. I had noticed while examining the documents and preparing my report that the admitted genuine signatures of the persons concerned sent to me were not of the contemporary period i.e. 1994 to 1999. (Vol. Some more admitted signatures were provided in the said case and it is not necessary to have admitted signatures of contemporary period). As per the admitted CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 46 of 72 documents, the dates of admitted genuine signatures examined by me are as under:
1. A-1 to A-21 are of the year 2009 to 2012.
2. A-22 to A-25 of the year 1988.
33. The conduct and stand of the plaintiffs in firstly, opposing the sending of the documents to FSL, secondly, questioning the sample signatures produced from their bank account and thirdly, not providing any sample signatures of the contemporaneous period, which may be in their knowledge and possession, all go together to show that the plaintiffs tried their best to prevent the examination of the questioned documents by the FSL, as also, raised the objections to the report on the basis of want of sample signatures which could have been provided by the plaintiffs. Further, even though, the plaintiffs tried to question the sample signatures produced by the Indian Overseas Bank, as also, tried to disown the said signatures, they never sought summoning of any earlier record from the said bank or from any other bank, nor filed any other document with their signatures, which could have been contemporaneous to the questioned document. Therefore, in my view, it was the plaintiffs who withheld the best evidence i.e., sample signatures or admitted signatures, which could have been made available for the FSL to compare the questioned signatures with and to that extent, they cannot be permitted to take the advantage of their own wrong by questioning the FSL report on the ground that it was prepared in the absence of any such contemporaneous signatures.CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 47 of 72
34. There is another important aspect to be noted here i.e., the plaintiff no.2 never stepped in the witness box and has never denied her signatures on oath. Once the signatures were being disputed by the plaintiffs, in my view, they were required to step into the witness box and deny their respective signatures.
35. Considering that I have already noticed the conduct of the plaintiffs in resisting to send the signatures to FSL and not providing any contemporaneous sample signatures for comparison, except the plaint, affidavits and replication, as also, questioning the genuineness of their signatures provided by their own bank, in these circumstances, the non appearance of plaintiff no.2 as a witness must also be taken as an adverse circumstance, which puts a question mark on a claim made by the plaintiffs in the plaint.
36. Further, the plaintiffs have not produced any report of hand writing expert in their favour, which they could have sought to discharge the onus imposed on them for proving the agreement to sell, possession letter etc. as forged. Therefore, from the testimony of DW-6, DW-4 and the two attesting witnesses, namely, Sh. Kuldeep Bhargava and Sh. S.L. Watwani, the defendants have been able to show on preponderance of probability that the agreement to sell, possession letter, etc. had been executed by the plaintiffs in favour of the defendant no.2 and the plaintiffs have failed to prove that these documents were forged and fabricated. Issue no.6 is decided accordingly.
37. What is the effect thereof, once the issue no.6 is decided against the plaintiffs and in favour of the defendants.CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 48 of 72
38. It is settled law that no evidence can be let in on a matter not pleaded but required to be pleaded and that no amount of evidence, even if let in without such a pleading can be looked into. Reliance is placed upon Bondar Singh & Ors. Vs. Nihal Singh & Ors, (2003) 4 SCC 161.
39. It is also a settled proposition of law that a party is bound to prove its case as alleged and covered by the issues framed. The principle is borne out from the maxim secundum allegate et probata. It is equally settled that a party should not be allowed to succeed on a case which it has failed to set up except by way of amendment. Reliance is placed upon the decision reported as A Gangadhar Rao Vs. G. Gangarao, AIR 1968 AP
291.
40. Once the agreement to sell, affidavit etc. stand proved, the defendant no.1 and 2 would become entitle to protection under Section 53A of Transfer of Property Act, the agreement in question, even though not registered, was entered into before the amendment was made to the Registration Act and Transfer of Property Act vis-a-vis compulsory registration of documents i.e. agreement to sell, creating right in the property or delivering possession.
41. In the present case, the protection under Section 53A of Transfer of Property Act would be regardless of the defendant no.2 being found entitled to a decree for specific performance in respect of the first floor of the property. The judgments relied by the counsel for plaintiffs i.e., A. Lewis & Anr Vs. MT Ramamurthy & Ors, (2007) 14 SCC 87 and Vasanthi Vs. CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 49 of 72 Venugopal, (2017) 4 SCC 723 are distinguishable on facts. In the said cases third party rights had been created by the owner after the agreement to sell with the party before the court. No such third party interest has been created in the present case. Further, in the said case, no false plea of agreement being forged was raised at any time. The said decisions would not enure to the benefit of the plaintiffs. The reason being that, in the present case, the plaintiffs have not sought any relief qua the agreement to sell at all when they came to the court. They have raised the defence that the documents are forged and fabricated. They had not set up a claim in the plaint that defendants have failed to perform their part of the contract, in any manner, at any point of time. They have failed to plead any breach by the defendants or that time was of essence of contract and in the absence of pleadings, to that effect, this case cannot be treated at par with the cases, where the plaintiffs came with a claim that defendants have breached the agreement and were not entitled to specific performance and also not entitled to protection under Section 53A of Transfer of Property Act.
42. In view thereof, the issue no.2, so far as it relates to prayer clause (a) of the amended plaint is decided against the plaintiffs.
43. That takes me to issue no. 7 i.e. Whether the agreement to sell was executed by the plaintiffs in favour of defendant No.2 on 3.1.1996 and defendant No.2 is entitled to a decree of specific performance in respect of first floor of the suit premises? The plaintiff had, at no point of time, admitted the CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 50 of 72 execution of the documents. However, their denial of the said documents appears on record, for the first time, in reply to the legal notice sent by the defendant no.1 and 2 through their counsel, which is dated 06.03.2009. Nowhere in the plaint, have the plaintiffs claimed that the defendants had failed to tender the remaining amount when demanded by the plaintiffs. Plaintiffs have failed to show that the suit property was converted from lease hold to free hold, which was condition precedent to execution of sale deed in favour of the defendants. The plaint filed, feigns ignorance to the existence of the agreement to sell, which has been proved by the defendants.
44. In these circumstances, plaintiffs having failed to show any breach of the said agreement by the defendants/counter claimant and having failed to set up a defence that time was of essence of the said agreement to sell, cannot now claim that the defendants are not entitled to a decree of specific performance.
The defendants have explained and proved their version on preponderance of probability that the plaintiffs, kept postponing the request by the defendant to execute the sale deed over the years. That also seems to be the reason why the plaintiffs remained quite form the year 1996 till the year 2008 and never demanded the possession of the suit property from the defendants. Perhaps the existence of agreement to sell, possession letter etc. is the reason why the plaintiffs claim that even though the defendant no.1 and 2 had trespassed into the other areas of the property, the oral licence was never revoked.
45. It seems that only in the year 2008, the plaintiff CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 51 of 72 turned dishonest and sought to disown the agreement to sell due to increase of property prices.
46. Therefore, this issue is decided in favour of the defendant no.2 and against the plaintiffs.
Second part of issue no.2, which pertains to prayer (b).
47. That takes me to the other part of the issue no.2, which deals with the prayer of possession of a part of ground floor and barsati floor.
48. It is evident that defendant no.1 and 2 have claimed that they don't have and that they never had any interest in the ground floor and the barsati floor. After the filing of the present suit, the mother of the parties had filed an application claiming that she had earlier filed a DV proceedings against the plaintiffs to protect her possession over the ground floor and barsati floor and that she be impleaded as a defendant in the present suit. She was impleaded as defendant no.3 and plaint was amended. After the said defendant no.3 expired, her daughter was substituted as the sole LR and referred to as defendant no.3 everywhere.
49. As already pointed out, the plaint is completely silent on the date, month and year when the defendant no.1 or defendant no.2 or defendant no.3, for that matter, allegedly trespassed into the ground floor and barsati floor. The affidavit of PW-1, to the extent relevant is quoted for ease of reference:
I say that subsequently, many years later, it was noticed by the Plaintiffs, during their visit to India, that by misusing the permission granted by the Plaintiffs, the Defendant No.1 has trespassed into part of the ground floor portion comprising two bed CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 52 of 72 rooms, two bathrooms, kitchen, and the barsati Floor, which occupation was without the consent of the Plaintiffs. The Defendant's possession in respect of part of the ground floor and barsati floor, as stated above, has been illegal and unauthorized. The Plaintiffs took up the matter during their various visits to India, with the Defendant No.1 but given the sensitive relationship with the Defendant No.1 who is elder brother of the Deponent, the Deponent respectfully pleaded with the Defendant No.1 on each visit to remove his unauthorized possession over part of the ground floor and barsati floor of the suit premises, which was without any knowledge and consent of the Plaintiffs.
50. In the cross examination dated 01.02.2014, plaintiffs tried to improve upon the case and claimed as follows:
I do not know when exactly Defendant No.1 took possession of part of ground floor and barasati however, I noticed it for the first time during my visit in 2000-2001. I am not aware of the exact date or month at this moment when I visited India in 2000-2001. My visit to India earlier to 2000-2001 was most likely in the year 1998. It is incorrect to say that Defendant No.1 never remained in possession of any part of ground floor or the barasati floor. It is incorrect to say that my mother was residing in a portion of the ground floor of this property.
...
I visited the barasati floor simultaneously and saw that the two rooms on the barasati floor had been locked which otherwise remained unlocked. The barasati floor rooms were earlier used by the servants of my CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 53 of 72 father-in-law till 1996. I saw these rooms in use by the servants as said above till 1996 only and thereafter I saw these rooms locked only during my visit in 2000-2001. I do not know the name of any of the servants who were residing in those rooms. It is incorrect to say that none of rooms on the barasati floor was ever used by any servant of my father-in-law.
51. On the aspect of presence of M/s OMB Perfect Lens or the defendant no.3 in the suit property, the stand of the plaintiffs is as follows:
In the affidavit towards evidence:
The Defendant Nos. 1 and 2 have deliberately and willfully made a false statement, false to their own knowledge, that the Defendant No.1 has no concern with 'OMB Perfect Lens'. A document downloaded from the website of "tradeindia.com", mentions the name of Mr. Vijaya Bhargava (Senior Manager) as the contact person of O.M.B Perfect Lens. The document downloaded from the website of "tradeindia.com" is EXHIBIT PW- 1/22. The document downloaded from the website of Department of Trade and Taxes, Govt. of NCT of Delhi pertaining to O.M.B Perfect Lens is EXHIBIT PW-1/23.
...
The Defendant No.1 and his son Shri Div Bhargava are running an Optical Shop by the name of "OMB Perfect Lens" from the part of the ground floor of the suit premises, which itself proves the fact that Smt. Shyama Bhargava was not living alone in the part of the ground floor of the suit premises, as CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 54 of 72 alleged.
52. At yet another place in the affidavit towards evidence, the plaintiff no.1 claims and I quote:
It is stated that the Defendant No.3 is a resident of United States of America, she cannot be and is not in possession of any part of the Ground Floor or Barsati Floor of the said property. The claim of Defendant No.3 of being in possession of any part of the suit premises is bogus, fictitious and false.
53. However, the cross examination on these aspects, to the extent relevant, is as follows:
To my mind Defendant No. 1 Mr. Vijay Bhargava is the owner of OMB Perfect Lens. The documents Exh. PW1/22 and Exh.
PW1/23 were down loaded by me. It is incorrect to say that the Defendant No.1 has no concern with OMB Perfect Lens. I do not have any knowledge that Sh. Div Bhargava has always been the proprietor of OMB Perfect Lens. It is wrong to suggest that Sh. Sunil Bhargava and Mrs. Neena Bhargava or the parents of Plaintiff No.2 never remained in possession of the portion shown in red thick lines on the ground floor (as shown in Exh. PW1/1).
...
I do not know since when the business under the name and style OMB Perfect Lens is being run in a portion of the property. To my mind no business was ever carried out under the above said trade name in the property.
...
It is incorrect to say that my mother CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 55 of 72 purchased the ground floor of the property for Rs. 8 Lacs in the year 1984 and that is why the Griah Parvesh was held for it on 25.12.1988. I suppose electricity and water bill of the entire property are being paid by Defendant No. 1. For the last three years I paid the house tax. Prior to these years, I suppose, Defendant No.1 and my father-in-
law when he was staying there, were paying the house tax. My father-in-law left the house in 1996. It is incorrect to say that business in the name of OMB Perfect Lens is being carried out by Mr. Div Bhargava in a portion of the ground floor soon after my father-in-law left the property. No portion of the ground floor was ever in possession of OMB Perfect Lens till the time this suit was filed. The amended plaint bears my signatures. My statement on this point contained in para No.28 (C) of the amended plaint is also correct. It is incorrect to say that I am making a false statement that OMB Perfect Lens were never in possession of a portion of the ground floor till filing of the suit. I do not know whether OMB Perfect Lens ever had possession of the ground floor portion or not, however, till the filing of the suit OMB Perfect Lens never had any possession.
It is correct that I had supplied machines to OMB Perfect Lens prior to filing of the suit. Then said, I did not supply but only assisted in supplying the machines. It was more than once however, I am not sure as to how many times I provided such assistance. I assisted in sending these machines at the property address from USA. It is wrong to suggest that I myself supplied these machines and that it was not a mere assistance.
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 56 of 72Q. What action did you take after coming to know that OMB Perfect Lens was in possession of a portion of the ground floor of the property?
A. I did not file any independent suit.
54. Therefore, the aforesaid contents of the affidavit towards evidence, as well as, the cross examination reveals the following:
a) That the plaintiff no.1 had never pleaded the date when they found that defendant no.1 and 2 had trespassed into the ground floor;
b) The plaintiff no.1 maintained in the examination-in-chief that the mother i.e. the original defendant no.3 never came in occupation of the ground floor and remained in the property as a dependent of defendant no.1;
c) Earlier, it was claimed that the M/s OMB Perfect Lens had no presence in the ground floor and even if such presence was there, it was defendant no.1, who was running the said firm.
There is an improvement in the affidavit towards evidence to the extent it claims defendant no.1 and 2 and Sh. Div Bhargava are running the optical shop;
d) The plaintiff no.1 raises a new claim that the substituted defendant no.3 i.e. daughter of original defendant no.3 was the resident of United States and that she cannot be and is not in possession of the ground floor or barsati floor. Therefore, the plaintiffs virtually disown their claim to a decree against CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 57 of 72 defendant no.3 for possession of the property by claiming that defendant no.3 was not in possession.
e) Then comes the cross examination, the plaintiff no.1 improves upon the original claim and introduces the date when he found that the defendant no.1 had trespassed in the ground floor and barsati floor i.e. in the year 2000-2001. Why the date was not introduced in the plaint or evidence by way of affidavit? Ultimately, the answer is an improvement by the plaintiffs of a material fact which the plaintiffs were bound to plead in the plaint, forming an important part of the cause of action for seeking relief of possession of the ground floor on ground of alleged trespass. This, to my mind, further dents the credibility of the plaintiff as a witness, besides the conduct already noticed by me vis-a-vis signatures on the alleged agreement to sell etc.
f) Then comes the explanation as to how the barsati floor was in possession of defendants or had been trespassed into. The explanation is even more surprising i.e., the rooms on the barsati floor were found locked, which otherwise remained unlocked. How the plaintiffs assumed that somebody had trespassed on the barsati floor merely because the rooms were locked? Secondly, if the plaintiffs were residing in United States and the barsati floor was not in occupation of anyone, why the plaintiffs should have left the rooms unlocked? If first floor was the only portion given to the defendant no.1 and 2 and other family members then why the ground floor was locked by the plaintiffs and why the barsati floor had been left unlocked. In any event, the cross examination further reveals that the plaintiffs refused to acknowledge that CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 58 of 72 their mother was in the ground floor and her servants in the barsati floor.
g) Then comes the most shocking part i.e., the admission by plaintiff no.1 in the cross examination that he had supplied machinery to M/s OMB Perfect Lens prior to the filing of the suit and then he tried to clarify that he had only assisted in supplying the machinery, as also, that this was on more than one occasion and that the machines were supplied at the address of the very property (suit property) from the United States. All throughout the plaintiffs have been maintaining that M/s OMB Perfect Lens was not in possession of any portion of the suit property or that Sh. Div Bhargava was not running the said business, but defendant no.1 was. The reliance on the document showing the name of Sh. Vijay Bhargava as a Senior Manager is neither here or there, as Manager cannot be said to be the owner. The plaintiffs have nor averred, nor proved the constitution of M/s OMB Perfect Lens, at any point of time, as to whether it is a proprietorship concern or partnership firm and who was the proprietor or partner, but they tried to show that Sh. Vijay Bhargava was the contact person or Senior Manager, but all throughout feigned ignorance that Sh. Div Bhargava was the proprietor thereof. Since in law, proprietorship concern has no independent identity, in effect, it is Sh. Div Bhargava, who is in possession of the ground floor under name and style of M/s OMB Perfect Lens and the plaintiffs were aware of this fact from the very beginning, but have continued to deny its existence, as also, consciously avoided impleading of Sh. Div Bhargava as a CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 59 of 72 party to the present proceedings seeking possession. At this juncture, testimony of DW-3 may be referred to:
I have brought with me the original records of registration of M/s OMB Perfect Lens, B- 5/138, Safdarjung Enclave, New Delhi, of which certified copy is Exh. DW- 3/A (Colly-30 Pages) (OSR).
XXXXXXXXX by Shri Rajesh Yadav, Ld. Counsel for Plaintiffs.
The original file contains an authorization letter of which a photocopy is Exh. DW-3/P1 (OSR), one carbon copy of tax invoice issued by Norville Autoflow India Pvt. Ltd. of which photocopy is Exh. DW-3/P2, order sheet (3 Pages) of which photocopy is Exh. DW-3/P3 (Colly) (OSR), returns of Sales Tax (2 Pages) of which photocopy is Exh. DW-3/P4 (OSR), trading account for the year ended 31 March, 1997 of which photocopy is Exh. DW-3/P5 (OSR), and order sheet (3 Pages) of which photocopy is Exh. DW-3/P6 (OSR).
h) Moving further, the written statement of defendant no.3, which was filed by her daughter impleaded as LR, categorically stated that Sh. Div Bhargava was present on the ground floor portion of the property since the year 1996 and to my mind, these pleadings stand established/proved by the aforesaid admissions.
It further puts a dent to the credibility of the plaintiff as a witness. Why the plaintiffs had been lying on these important aspects? Perhaps the presence of Sh. Div Bhargava would have revealed certain additional claims and defences and the plaintiffs CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 60 of 72 have been trying to obtain a decree against the parties, who otherwise were not claiming any interest in the portions in dispute or according to plaintiff himself were not even in possession thereof (the claim qua LR of defendant no.3).
55. On the other hand, at this stage, I may also refer to the evidence of the defendant, which reads as follows:
Affidavit of Sh. Vijay Bhargava.
The defendant no.1 never occupied the said first floor as a licencee of the plaintiffs. Except the first floor of the suit property, the defendants no 1 and 2 never remained in possession of any other portion at any time.
...
The mother of the defendant no 1 never resided with the defendant no 1 and 2 and she had been living independently in the portion on the ground floor of the suit property which is shown in thick red boundaries in Ex-PW1/1 till her death and thereafter Smt Shashi Bhargava has been in possession of the said portion. The mother of the defendant no 1 had also been in exclusive possession of the second floor of the suit property till her death which was being used by her servants and thereafter Smt Shashi Bhargava has been in possession of the said portion.
...
The portion of the ground floor other than shown in thick red boundaries in Ex- PW1/1 has been in occupation of OMB Perfect Lens after the same was vacated by the parents of the plaintiff no 2. The defendant no 1 never had any concern with CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 61 of 72 OMB Perfect Lens. The business under the name of OMB Perfect Lens is being run in the said portion.
...
Thereafter, the agreement to sell, letter of possession, power of attorney, will of the plaintiff no 1 and the will of the plaintiff no 2 were executed on 3.1.1996. At the time of execution of the said documents, the plaintiffs, the defendants no 1 and 2, Shri S.L. Watwani and Shri Kuldeep Bhargava and the notary were present. The agreement to sell and the power of attorney were got duly notarised from the said notary after their execution on 3.1.1996. The agreement to sell is signed by the plaintiffs and the defendant no 2 and is signed by Shri S.L Watwani and Shri Kuldeep Bhargava as witnesses. The agreement to sell is signed by the plaintiff no 1 at point A and by the plaintiff no 2 at point B. The said document bears the signatures of the defendant no 2 at point C and the signatures of Shri S.L Watwani at point D and Shri Kuldeep Bhargava at point E. The deponent is well conversant with the said signatures as he has seen them signing many times and as also the same were put in his presence. The original agreement to sell is Ex D-6. The letter of possession was executed by the plaintiffs and the same is signed by the plaintiff no 1 at point A and by the plaintiff no 2 at point B and by Shri S.L Watwani and Shri Kuldep Bhargava as witnesses. The said DP document bears the signatures of Shri S.L Watwani at point C and Shri Kuldeep Bhargava at point D. The deponent is well conversant with the said signatures as he has seen them signing many times and as also the 1 same were put in his CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 62 of 72 presence. The original letter of possession is Ex D- 7. The power of attorney was signed by the plaintiffs and by Shri S.L Watwani and Shri Kuldeep Bhargava as witnesses.
The signatures of the plaintiff no 1 are at point A on the said document, the signatures of the plaintiff no 2 are at point B, the signature of Shri S.L Watwani is at point C and the signature of Shri Kuldeep Bhargava is at point D. The deponent is well conversant with the said signatures as he has seen them signing many times and as also the same were put in his presence.
Cross examination of DW-1 dated 28.11.2014.
Q3. Is it correct that your son Shri Div Bhargava is living with you along with his family?
Ans. He has occupied two rooms on the ground floor of the suit property and stays there in those rooms and he also keeps on visiting us on the first floor. Vol. He is doing business of OMB Perfect Lens in one of those two rooms occupied by him. Div Bhargava was born on 14.11.1971 and he was married on 4 of May about 16 years back. He has two children aged 15 and 12 years. To my mind - OMB Perfect Lens was formed in 1996. I do not know whether OMB Perfect Lens is a company or firm or whether it has any Director or Partner. Vol. Div Bhagava is the owner of the same.
...
Cross examination of DW-1 dated 10.04.2015.
Ms. Shashi Bhargava is a permanent US citizen. Smt. Shama Bhargava died on 17th February, 2012. She has visited India CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 63 of 72 three times after the death of her mother/Smt. Shama Bhargava. Husband and children of Ms. Shashi Bhargava reside in U.S. It is incorrect to suggest that in the ground floor portion shown within red thick lines and the second floor portion of the suit property - Smt. Shama Bhargava never resided till she was alive and that her daughter Ms. Shashi Bhargava also never remained in occupation thereof after her death and that whatever I have stated on these lines in my affidavit Exhibit DW-1/A is incorrect.
...
Cross examination of DW-2 dated 26.08.2015.
After this portion was vacated by Shri N.N. Bhargava and his wife, it was taken over by OMB Perfect Lens. OMP Perfect Lens is a proprietory firm which was doing manufacturing of ophthalmic glasses and its trading. Shri Div Bhargava is its Sole Proprietor. This portion still stand in the occupation and possession of OMP Perfect Lens. During the lifetime of the mother - a maid used to look after her. The maid used to stay in the barsati. It is correct to suggest that the barsati floor and ground floor portion of the suit property never remained in my or my wife's possession.
...
My mother died on 17.2.2012. It is correct that Smt. Shashi Bhargava, D/o late Smt. Shyama Bhargava took possession (kabza kar liya) of the portions which were earlier occupied by my mother on coming from US on the death of her/my mother.
Whenever Plaintiffs visited India, the used to stay with our mother Smt. Shyama Bhargava CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 64 of 72 in the back portion of the ground floor. I am not aware that my mother had filed a domestic violence complaint against the Plaintiff. It is correct that currently front portion of the ground floor of the suit property is with OMB Perfect Lens and back portion of the ground floor and barsati is with Defendant No. 3. The witness is shown Site Plan Exhibit PW-1/1 (Page 1) - looking to which he states that portion within thick red lines on the ground floor is with Defendant No. 3 and the remaining portion is with OMB Perfect Lens. I have no concern with OMB Perfect Lens. It is incorrect to suggest that Smt. Shyama Bhargava had purchased the ground floor after payment of Rs. 8 lacs to the Plaintiff and that I am knowingly stating about my having no information about it.
....
It is correct that my sister Shashi Bhargava/defendant No.3 is a permanent resident of USA. I can not show any document indicating that Mrs. Shashi Bhargava/defendant No.3 had taken over possession of a part of the ground floor and Barsati floor of the suit property. It is incorrect to say that neither my mother nor my sister ever remained in possession of any part of the suit property.
56. During cross examination, it was put to this witness also that defendant no.3 was the permanent resident of United States. It was being suggested that defendant no.3 had not taken possession of the ground floor after the death of the original defendant no.3. Why the plaintiffs would be doing that? It is the plaintiffs who were filing the suit claiming possession against CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 65 of 72 defendant no.3 and surprisingly, the plaintiff admits that the original defendant no.3 was in the suit property in the ground floor, but as a dependent of defendant no.1. The plaintiffs have claimed that the said defendant no.3, the mother was invalid and completely dependent on defendant no.1. It was being suggested that all her pleadings were signed by Sh. Div Bhargava as an Attorney and therefore, that she was not in control, yet no application was moved under Order 32 Rule 15 of CPC for appointment of next friend of "an invalid defendant no.3". If the defendant no.3 was incapable of taking possession and of unsound mind due to illness or whatsoever reason, it was for the plaintiffs to move appropriate application under Order 32 Rule 15 of CPC for appointment of guardian ad litem. That was not done, but the evidence suggested that the plaintiffs were trying to built a case that Sh. Div Bhargava was running the show from behind.
57. Next why was only defendant no.3 Ms. Shashi Bhargava only made the legal heir by the plaintiff and the decree of possession sought against her. Why the plaintiffs who were also legal heirs of the said original defendant no.3 did not enter the suit property on the death of the mother, considering that she never left any Will bequeathing her possessory rights to any of her heirs. The defendant no.1 and 2 were not claiming any right in the ground floor and barsati floor. The defendant no.3, was a permanent resident of United States and plaintiffs own claim in the examination-in-chief already reproduced hereinabove was that defendant no.3 cannot be and is not in possession of any part CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 66 of 72 of the ground floor or barsati floor. Why insistence on a decree against the defendant no.3 despite a statement on oath by the plaintiff no.1 himself that defendant no.3 was not in possession of ground floor and barsati floor?
58. The manner in which the suit has proceeded and trial conducted is beyond my understanding. However, it is note worthy that defendant no.3 never stepped into the witness box and the presence of original defendant no.3 on the ground floor is established, rather by the testimony on behalf of defendant no.1 and 2 and the plaintiffs cross examination itself. However, the claim that the mother was also in possession of the barsati floor merely because some servant was residing there, but have not even been named, is neither here nor there. All the defendants have admitted that the mother was unable to move on her own, which shows her physical dependence. Therefore, to my mind, the possession of the mother on the ground floor alone was established. Simultaneously, the possession of M/s OMB Perfect Lens/Sh. Div Bhargava on the ground floor is established on record.
59. Witness DW-3 Sh. Anant Kumar Jha, LDC from the Department of Trade & Tax, GNCTD, also produced the record of registration of M/s OMB Perfect Lens, which shows Sh. Div Bhargava, as the proprietor of the M/s OMB Perfect Lens.
60. From the cross examination of DW-1, it is evident that plaintiffs are themselves confused about the case which is to be put to the witness. Plaintiffs are putting it to the said witness that the front portion of the ground floor of the suit property is CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 67 of 72 with M/s OMB Perfect Lens and back portion and barsati floor with defendant no.3 and, at the same time, a suggestion that Ms. Shashi Bhargava was a permanent resident of USA and that she was never in possession of any part of the suit property. If it is the claim of the plaintiffs that Ms. Shashi Bhargava had taken possession of the suit property and she never remained in possession of the suit property, why a decree is being sought against her. When the plaintiffs have admitted the existence of M/s OMB Perfect Lens in the suit property, as also, the fact that plaintiffs have supplied machinery to the said M/s OMB Perfect Lens in plaintiff's own cross examination, how the plaintiffs are feigning ignorance to the occupation and existence of M/s OMB Perfect Lens on the ground floor of the property, all through out but during cross examination of DW-1. Plaintiffs are contradicting their own case during the evidence.
61. In my view, possession of M/s OMB Perfect Lens and the mother of the parties i.e., the original defendant no.3 on the ground floor stands established. Such possession, from the evidence, seems to be from the year 1996.
62. The plaintiffs claim that defendants had trespassed without indicating the year of trespass has to be construed in the light of the evidence led by the parties. I am constrained to conclude that since the year 1996, the original defendant no.3 and M/s OMB Perfect Lens/Sh. Div Bhargava had been in possession of ground floor. However, the possession of mother of the parties on the barsati floor, to my mind, is not established on record.
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 68 of 7263. In these circumstances, the claim qua possession of the ground floor is clearly beyond the period of 12 years, the date of the institution of suit being 13.04.2009. The claim would be time barred. Although, no issue was framed in this regard, it is noticed that the said defence was taken by the defendant no.3 in the written statement. Further the language of Section 3 of Limitation Act is clear and the same is quoted for ease of reference:
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act --
(a) a suit is instituted --
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted --
(i)in the case of a set off, on the same date as the suit in which the set off is pleaded;CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 69 of 72
(ii)in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
64. The mandate is clear that the court is bound to dismiss the suit as barred by time if it so finds, regardless of whether such a defence was taken or not. Therefore, to that extent, the suit of the plaintiffs must fail. The plaintiffs cannot be granted any decree of possession qua any portion of the ground floor in these circumstances.
65. That leaves me with the possession of the barsati floor.
66. Defendant no.1 and 2 have not claimed any interest in the barsati floor and defendant no.3 has claimed possession. I have concluded that I am unable to hold that the mother of the parties i.e. original defendant no.3 was ever in possession of the barsati floor. Merely because the rooms were locked, is a statement which is neither here or there. Admittedly, the mother of the parties could not move on her own and therefore, restricted to the ground floor. Therefore, she was never in possession of the barsati floor. No evidence has been led on her behalf to that aspect as well. Therefore, upon the death of original defendant no.3, even if it is assumed that her daughter and LR came in possession of the barsati floor as is being alleged by her, she has failed to show any right to remain therein.
CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 70 of 7267. A peculiar situation has arisen, since, the plaintiffs are claiming that the said Shashi Bhargava Defendant no.3 is a permanent resident of United States and cannot be and is not in possession of any portion of the suit property. Plaintiffs cannot blow hot and cold in the same breath. They cannot seek decree of possession and damages against defendant no.3 as well, simultaneously, claim that defendant no.3 cannot be and is not in possession of the portion in dispute. However, considering that defendant no.3 has claimed that she was in possession, in order to balance the equities, the court is granting a decree of possession against defendant no.3 as far as barsati floor is concerned, but there cannot be any order as to damages for occupation in these circumstances.
68. In these circumstances, the present suit is partly decreed only qua possession of barsati floor and the prayer qua the ground floor is being rejected. The issue no.2 so far as it pertains to prayer (b) is decided accordingly.
69. As far as the issue no.3 i.e., Whether plaintiffs are entitled to a decree of Rs.1,75,000/- as damages?, issue no. 4 i.e.,Whether the plaintiffs are entitled to a decree of mesne profits/damages @ Rs.1,00,000/- per month from the date of the suit till the date of handing over of vacant possession of the suit premises? and issue no.5 i.e., Whether the plaintiffs are entitled to interest? If so, at what rate and for what period? are concerned, they only pertain to damages/mesne profit.
70. In view of the findings on the other issues hereinabove, there can be no orders on the aspect of CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 71 of 72 damages/mesne profit. The said issues are accordingly decided against the plaintiffs and in favour of the defendants.
71. As far as issue no.1 i.e.Whether Smt. Shyama Bhargava (deceased defendant No.3) had purchased the portion in dispute of the ground floor of the suit premises in question in the year 1984, after paying a consideration amount of Rs.8,00,000/- to the plaintiff? is concerned, the onus to prove this issue was on defendant no.3. No affirmative evidence was led on behalf of defendant no.3 on this aspect. The cross examination conducted is not sufficient to prove that such transaction took place between deceased defendant no.3 and the plaintiffs, as all such suggestions were denied by the plaintiff, who stepped in the witness box. This issue is accordingly decided against the defendant no.3 and in favour of the plaintiffs.
72. Issue no.8 i.e., Relief. The plaintiff is entitled to decree of possession qua the barsati floor. The defendant no.2 is entitled to decree of specific performance in the counter claim. The amount unpaid be tendered/deposited in court within 15 days.
73. Parties are left to bear their own costs.
74. Decree sheet be drawn accordingly. File be consigned to Record Room.
Harjyot Digitally by Harjyot signed Singh Bhalla Singh Date:
Pronounced in the open court Bhalla 2024.09.07 17:57:07 +0530 on 07.09.2024 HARJYOT SINGH BHALLA DJ-05, SOUTH SAKET COURTS NEW DELHI CS DJ No. 7363/2016 & CS DJ No. 3947/24 Page 72 of 72