Delhi District Court
Smt. Harpreet Kaur vs Harbhajan Singh on 5 February, 2020
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/611586/2016
1. Smt. Harpreet Kaur
W/o Late Sh. Ajeet Pal Singh
R/o J-13/23, B, Ground Floor,
Rajouri Garden, New Delhi-27.
2. Master Raminder Singh (above 5 years)
S/o Late Sh. Ajeet Pal Singh,
R/o J-13/23, B, Ground Floor,
Rajouri Garden, New Delhi-27.
3. Baby Neenu (above 3 years)
S/o Late Sh. Ajeet Pal Singh,
R/o J-13/23, B, Ground Floor,
Rajouri Garden, New Delhi-27.
..........Plaintiffs
Vs.
1. Harbhajan Singh
S/o Sh. Karam Singh
R/o B-286, Shivaji Vihar,
Janta Colony,
Near Raghubeer Nagar,
New Delhi-27.
2. Smt. Surender Kaur
W/o Sh. Harbhajan Singh
R/o B-286, Shivaji Vihar,
Janta Colony,
Near Raghubeer Nagar,
New Delhi-27.
3. Sh. Manender Singh
S/o Late Sh. Mangal Singh
R/o B-59, Shivaji Vihar,
Janta Colony,
Harpreet Kaur Vs Harbhajan Singh. . Page No. 1/31
Near Raghubeer Nagar,
New Delhi-27.
4. Jagjeet Singh @ Montoo
S/o Sh. Harbhajan Singh
R/o B-286, Shivaji Vihar,
Janta Colony,
Near Raghubeer Nagar,
New Delhi-27.
.....Defendants
Date of institution :-27.07.2009
Order Reserved On:-03.02.2020
Date of Decision:-05.02.2020
For the Plaintiff:- Sh. D. S. Paweriya, Advocate.
For the Defendants :- Sh. R. P. Kapoor, Advocate.
SUIT FOR POSSESSION, PERMANENT INJUNCTION,
DECLARATION AND FOR DAMAGES
JUDGMENT
1. Plaintiffs namely Smt. Harpreet Kaur (plaintiff no.1), Master Raminder Singh (plaintiff no.2) and Baby Neenu (plaintiff no.3) had filed present suit for possession, permanent injunction, declaration and for damages against defendants namely Harbhajan Singh (defendant no.1), Smt. Surender Kaur (defendant no.2), Sh. Manender Singh (defendant no.3) and Sh. Jagjeet Singh @ Montoo (defendant no.4), alleging following facts:-
"That defendant no.1 was owner of property bearing no. 286, Shivaji Vihar, falling in old area of Basaidara Pur now in Shivaji Vihar, Janta Colony, Near Raghubeer Nagar, New Delhi (hereinafter referred to as "suit property Harpreet Kaur Vs Harbhajan Singh. . Page No. 2/31 in question"). Defendant no.1 sold the said property comprising of first and second floor on 13.06.2005 in favour of Sh. Ajeet Pal Singh by executing registered GPA, receipt of Rs.40,000/- and agreement to sell. Sh. Ajeet Pal Singh was husband of plaintiff no.1 and father of plaintiff no.2 & 3. Possession of the said property with roof rights of 2nd floor was given to the Sh. Ajeet Pal Singh and Sh. Ajeet Pal Singh was in exclusive possession of the said property from 13.06.2005. Defendant no.1 had also handed over original GPA with affidavit alongwith agreement to sell to Sh.
Ajeet Pal Singh. The suit property is surrounded by property no. B-287 to North side, property no. B-285 to South side, service lane to East side and front road to West side. Sh. Ajeet Pal Singh expired on 10.10.2007 leaving behind plaintiffs no.1 to 3 as her legal heirs. Sh. Ajeet Pal Singh died intestate. During his lifetime Sh. Ajeet Pal Singh put locks on the doors of first and second floor of the suit property in question. Plaintiff no.1 became mentally disturbed and was not able to lead normal life after the death of Sh. Ajeet Pal Singh. Defendant made plan to grap the suit Harpreet Kaur Vs Harbhajan Singh. . Page No. 3/31 property in question in unauthorized way. Plaintiff no.1 visited first and second floor of the suit property in June, 2009 and found the locks intact. Sh. Ajeet Pal Singh had also put two chairs and one table in second floor of the house at the time of purchase of the suit property. Some body gave information to plaintiff no.1 on 07.07.2009 that the second floor has been sold by defendant no.2 to defendant no.3 on consideration. Plaintiff no.1 contacted advocate at Sub Registrar office at Janak Puri and on inspection of record of Sub Registrar it was found that wife of Harbhajan Singh who is defendant no.2 was appointed registered GPA by Sh. Harbhajan Singh and on the basis of that attorney defendant no.2 executed sale deed in favour of defendant no.3. Plaintiff claimed that defendant no.2 being wife of defendant no.1 must have known the fact that first and second floor of the suit property was already sold by defendant no.1 to husband of plaintiff no.1, but despite knowing that fact she executed sale deed in favour of defendant no.2. It was claimed that intention of defendant no.1 & 2 was to cheat the husband of plaintiff no.1 from very beginning from the time of sale Harpreet Kaur Vs Harbhajan Singh. . Page No. 4/31 of the property to him and they executed that intention by transferring the property of second floor to the defendant no.3. Plaintiffs claimed that after taking legal opinion, the plaintiffs are likely to file criminal complaints against defendants. Apart from that defendants no.1 to 3 also taken forcible possession of the first floor portion by putting their articles. As of now defendant no.3 is in possession of second floor of the suit property in question. Plaintiffs claimed that sale deed in favour of defendant no.3 was sham document as roof of first floor was not in existence on the day of execution of registered sale deed by defendant no.2 in favour of defendant no.3. The premises were built upto second floor when registered irrevocable attorney was executed by defendant no.1 in favour of Sh. Ajeet Pal Singh. So documents were executed by defendant no.1 in favour of defendant no.2 and subsequently, defendant no.2 in favour of defendant no.3 after execution of documents by defendant no.1 in favour of Sh. Ajeet Pal Singh which make those documents illegal in nature. It is was claimed the defendant no.3 was residing in the close vicinity and he was fully aware about the sale Harpreet Kaur Vs Harbhajan Singh. . Page No. 5/31 transaction between defendant no.1 and Sh. Ajeet Pal Singh. Despite knowing that fact he entered into an agreement which was not legal with respect to suit property in question. Plaintiff no.1 had approached police for registration of case against defendants on 07.07.2009 but police did not entertain her complaint. It was claimed that defendant has disposed off the properties of plaintiffs because they thought that plaintiffs may not must have courage to fight against them for their legal rights. Now, defendants no.1 to 4 want to further dispose off first and second floor of the suit property in question to third person and were seen with property dealers at the suit property on 12.07.2009. Further, defendants might have obtained some official documents in respect of electricity meter/water facilities etc. without the consent of Sh. Ajeet Pal Singh or plaintiffs with respect of first and second floor of the suit property was not used for residential purpose by plaintiffs. Coupled with the same, as per documents executed by defendant no.1, the area of the property mentioned is 50 sq. yards whereas in registered sale deed executed by defendant no.2 in favour of defendant no.3 Harpreet Kaur Vs Harbhajan Singh. . Page No. 6/31 the area mentioned is as 37 ½ sq. yards. The actual area was not measured at the time of execution of documents of first floor and second floor as it was constructed one and whatever area was mentioned by defendant no.1 was believed to be correct. The first floor of the property is now occupied by defendant no.4 at the instance of defendant no.1 & 2 without any authority. It is not clear since when defendant no.2 is occupying first floor of the suit property in question. Plaintiff no.1 was threatened by defendants on 12.07.2009 when she visited suit property. So defendant had taken unauthorized possession of first floor and second floor of the suit property in question and are using the same and therefore, they are liable to pay damages @Rs.4000/- per month calculated from July 2009. The suit was filed by plaintiff no.1 as next friend of plaintiff no.2 & 3 is not adverse against their interest in respect of suit property. Plaintiff no.1 being mother of plaintiff no.2 & 3 shall not take any steps against their interest and will act as per law of the land. Based on said averments, plaintiff prayed that a decree of possession be passed in favour of plaintiffs and against Harpreet Kaur Vs Harbhajan Singh. . Page No. 7/31 defendants on the basis of site plan annexed with the plaint. Further it was prayed that a decree of permanent injunction in favour of plaintiffs and against defendants restraining them from transferring, selling or creating third party interest in the suit property in question. Further it was prayed that a decree of declaration to declare the sale deed dated 30.12.2008 executed in favour of defendant no.3 by defendant no.2 as null and void be passed in favour of plaintiffs. Plaintiffs further prayed that a decree of damages of Rs.8000/- for unauthorised occupation of first floor by defendants no.1, 2 & 4 and of 2 nd floor of defendant no.3. "
2. After filing of the present suit, summons were issued against defendants.
3. Defendants no.1, 2 & 4 filed their written statement jointly. In their written statement, defendants took preliminary objections to the effect that pleas of plaintiffs in the plaint were not consistent, that plaintiff no.1 is not competent to institute suit on behalf of plaintiffs no.2 & 3, that suit was without any cause of action and was filed by plaintiff to extort money from defendants no.1, 2 & 4 illegally, that agreement to sell dated 13.06.2005 was not executed by notary in the ordinary course of business and that plaintiffs had Harpreet Kaur Vs Harbhajan Singh. . Page No. 8/31 not filed original documents.
4. On merits, defendants refuted the version of the plaintiff by referring to aforesaid preliminary objections. Same are not repeated here for the sake of brevity. Further it was stated that defendant no.1 never sold the suit property in question to husband of plaintiff no.1 and father of plaintiffs no.2 & 3 and that defendants no.1, 2 & 4 are not bound by the WS filed by defendant no.3. It was claimed that defendant no.1 and is still the owner and person in possession of ground floor and first floor of the suit property in question. The roof of first floor is under absolute ownership of defendant no.3, that defendant no.1 never sold the suit property in question to husband of plaintiff no.1. However, as per minimum rate of land, buyer had to pay Rs.16,100/ per sq. yard for the land located near to the suit property in question and so, it was not possible that its two floors were agreed to be sold to husband of plaintiff no.1 i.e. Ajeet Pal Singh for Rs.40,000/. Based on said reply, defendants prayed for dismissal of the suit of the plaintiff.
5. Defendant no.3 filed WS separately in which he took preliminary objections that plaintiffs have no right, title or interest over suit property in question. He denied that fact that plaintiffs had made any contract with defendant no.3 or husband of plaintiff no.1 had made any contract with defendant no.3. He denied the Harpreet Kaur Vs Harbhajan Singh. . Page No. 9/31 due execution of documents relied by plaintiffs. It was claimed that defendant no.3 is concerned with the roof of first floor above with construction rights. On 23.07.2009 one Sh. Dr. Abhijit Parijat had duly entered into rent agreement with defendant no.3 for a period of 11 months. The police verification was duly done by the Delhi police. The said Dr. Abhijit Parijat is not arrayed as one of the defendant in this case and that is why suit was bad for nonjoinder of necessary parties. It was claimed that the plaint was not properly drafted and plaintiffs have concealed material facts from the Court. Further, it was claimed that plaintiff had not sought declaration of nullity of sale deed dated 30.12.2008 which make their suit illegal. He denied the identity of plaintiffs no.2 & 3 and claimed that suit was not properly valued for the purpose of reliefs claimed by plaintiffs. On merits the case of the plaintiff was refuted.
6. Plaintiff filed separate replications to written statement of defendants no.1, 2 & 4 and defendant no.3 respectively wherein contents of plaint were reiterated and version of defendants was denied.
7. After completion of pleadings, following issues were settled on 03.09.2013.:
(i) Whether the plaintiff is entitled to the decree of possession, permanent injunction and declaration as prayed for?OPP Harpreet Kaur Vs Harbhajan Singh. . Page No. 10/31
(ii) Whether the plaintiff is entitled to recover damages as claimed?OPP
(iii) Relief.
8. Consequently, matter was fixed for plaintiff's evidence.
9. Plaintiff no.1 has examined her self as PW1 and tendered his evidence by way of affidavit as Ex.PW-1/A in which she reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
(1) Ex PW1/1 is the site plan.
(2) Ex PW1/2 is the GPA dated 13.06.2005. (3) Ex PW1/3 is the Deed of Will.
(4) Ex PW1/4 is the receipt.
(5) Ex PW1/5 is the agreement to sell.
(6) Ex PW1/6 is the affidavit of defendant no.1. (7) Ex PW1/7 is the possession slip.
(8) Ex PW1/8 is the GPA dated 01.09.1986. (9) Ex PW1/9 is the agreement between Kartar Kaur and Harbhajan Singh i.e. defendant no.1.
(10) Ex PW1/10 is the original birth certificate of plaintiff no.3. (11) Ex PW1/11 is the original death certificate of husband of plaintiff no.1.
(12) Ex PW1/12 is the certified copy of the sale deed dated 30.12.2008 in favour of the defendant no.3 by the defendant no.2. (13) Ex PW1/13 is the photocopy of birth certificate of plaintiff no.2.Harpreet Kaur Vs Harbhajan Singh. . Page No. 11/31
10. After examining the said witness, plaintiffs closed their evidence.
11. Matter was then fixed for defendant's evidence.
12. In their defence, defendants have examined four witnesses.
13. Defendant no.1 examined himself as D1W1 and deposed facts in tune with the contents of written statement. Same are not repeated here for the sake of brevity. He relied upon the document i.e. letter dated 08.09.2009 as Ex D1W1/1.
14. Defendant no.2/ Smt. Surinder Kaur i.e. wife of defendant no.1 examined herself as D2W1 and defendant no.4/Jagjeet Singh @ Montoo as D4W1. Both these witnesses tendered their evidence by way of affidavit as Ex.D2W1/A and Ex D4W1/A respectively in which they reiterated the contents of written statement which are not repeated here for the sake of brevity.
15. Defendant no.3/ Sh. Maninder Singh examined himself as D3W1 and tendered his evidence by way of affidavit as Ex.D3/A in which she reiterated the contents of written statement which are not repeated here for the sake of brevity. He relied upon following documents:-
(1) Ex DW-1/PW1 is the sale deed in his favour. (2) Ex DW1/W1/P1 is the GPA.
(3) Mark A is the copy of BSES bill dated 09.02.2009.Harpreet Kaur Vs Harbhajan Singh. . Page No. 12/31
16. All the defendants were cross-examined by counsel for plaintiff at length.
17. After examining said witnesses, defendants closed their defence evidence.
18. Consequently, matter was fixed for final arguments.
19. After hearing final arguments, matter was fixed for judgment.
20. In subsequent paragraphs issues are decided.
ISSUE NO.1 Whether the plaintiff is entitled to the decree of possession, permanent injunction and declaration as prayed for?OPP and ISSUE NO.2 Whether the plaintiff is entitled to recover damages as claimed?OPP
21. Both the aforesaid issues were interrelated and therefore, I am deciding both issues, jointly, in my subsequent paragraphs.
22. Plaint forms the backdrop of this litigation. In the wake of equitable reliefs sought by plaintiff, it is relevant to appreciate the contents of the plaint.
23. In the plaint, plaintiffs claimed that first and second floor Harpreet Kaur Vs Harbhajan Singh. . Page No. 13/31 without roof rights were sold by defendant no.1 to Ajeet Pal Singh and consequently possession of the said property was taken over by Ajeet Pal Singh, during his lifetime. Plaintiffs did not explain as to how Ajeet Pal Singh during his lifetime started using the said property after taking its possession. Infact plaintiffs did not explain as to how Ajeet Pal Singh used the suit property in question. It was not the case of the plaintiffs that they alongwith Ajeet Pal Singh had resided in the suit property in question at any point of time. Therefore, usage of suit property in question by Ajeet Pal Singh or by plaintiffs was neither asserted nor explained by them in the plaint.
24. Plaintiffs claimed that "somebody" had given information to plaintiff no.1 on 07.07.2009 that second floor was sold by defendant no.2 to defendant no.2 on consideration. Plaintiff did not explain as to who was the said person who had informed plaintiff no.1 on 07.07.2009 as mentioned in para no.7 of the plaint.
25. Plaintiffs in para no.8 of the plaint claimed that they were likely to file criminal complaints against defendants after getting legal opinion but they failed to explain as to why they did not file any legal complaint against defendants once they alleged that defendants had acted malafidely with conspiracy with each other to grab suit property in question.
26. The said criminal complaints were all the more required in Harpreet Kaur Vs Harbhajan Singh. . Page No. 14/31 this case as plaintiffs had claimed that defendants had forged the title document of the suit property in question. No explanation on behalf of plaintiffs was given in this regard which made their case improbable and unbelievable.
27. Plaintiffs claimed in para no.9 of the complaint that defendants no.1 to 3 had taken forcible possession of the first floor of the portion of the suit property by putting "their articles". They did not explain as to what they meant by "their articles". In addition to that plaintiffs did not explain as to when said defendants had taken forcible possession of the first floor of the suit property in question or whether said possession was taken by defendants in the presence or absence of the plaintiffs.
28. In para 11 of the plaint plaintiffs claimed that plaintiff no.1 had approached police for registration of case against defendants on 07.07.2009 but police did not entertain the said plea of plaintiff no.1. Plaintiffs did not refer to any written complaint which they made to the police. Moreover, they did not explain the contents of the complaint which plaintiff no.1 made to the police. Therefore, their said claims were vague in nature.
29. Lastly, plaintiff had claimed that Ajeet Pal Singh during his lifetime had purchased first and second floor without roof rights of the suit property in question on 13.06.2005 but they did not claim as to how defendant no.1 become owner of the suit property in question.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 15/3130. The net result is that contents of the plaint did not inspire confidence and were not believable by me.
31. Plaintiffs had the occasion to remove said shortcomings in their case when matter was fixed for plaintiff's evidence.
32. Plaintiff no.1 examined himself as PW1. In her examination-in-chief PW1 Harpreet Kaur had deposed facts in sync with the contents of the plaint. Her examination-in-chief as such was of not help to her as she did not explain aforesaid lacunas in the case of the plaintiffs.
33. In her testimony, PW1 relied upon certain document which are appreciated by me in my subsequent paragraphs.
34. In her testimony she relied upon site plan Ex PW1/1. The said site plan is of no consequence as it has been made without any measurement. No executable decree can be passed based on said site plan. Plaintiff never sought permission of the Court to get the site plan properly measured with the help of local commissioner. In such circumstances, said site plan was inconsequential in nature, therefore, I discarded the same.
35. PW1 relied upon GPA Ex PW1/2 dated 13.06.2005 allegedly executed by defendant no.1 in favour of late Sh. Ajeet Pal Singh. The said attorney as such contained following terms Harpreet Kaur Vs Harbhajan Singh. . Page No. 16/31 and conditions:-
"Whereas the Executant(s) is/are the exclusive owner and in possession of free hold reight with structure thereon in respect of ENTIRE FIRST & SECOND FLOOR, WITHOUT ROOF RIGHTS, OUT OF PROPERTY BEARING NO. B- 286, LAND MEAS 50 SQ. YDS SITUATED IN THE AREA OF VILLAGE BASAI DARAPUR IN THE ABADI OF JANTA COLONY SHIVAJI VIHAR, NEW DELHI. Whereas for management and control of the above mentioned property I/We do hereby nominate constitute and appoint the above named general attorney and authorise to do act and perform the following in my name and on my/our behalf.
To manage control, supervise and to sell, gift, release, lease, exchange or transfer etc. of the above mentioned property to execute the sale deed and documents, and get them duly regd. at the office of S.R. concerned to receive the consideration or admit the prior receipt if any any to admit its execution and get the mutation duly sanctioned in the name of purchaser or purchasers or morgagee and to construct the above mentioned property. That the executant has received a consideration amount of Rs.40,000/- (Rs. Forty thousand only) from the said attorney in respect of abovesaid property, before the S.R. II Janak Puri, New Delhi, at the time of execution and presentation of this general power of attorney. The executant hereby appoint, authorise, nominate and constitute above named attorney to manage, control, look after and supervise the abovesaid property as my/our said attorney deems fit and proper.
To give on rent the above mentioned property to any tenant or tenants and get the same vacated and to realise the rent from the tenant or tenants according to law. To receive the compensation if the said property is acquired by the Govt. to sign, verify, present, pursue all kinds of applications, affidavits, suits appeals, reviews and revisions in all court and departments concerned and to deal with all matters of this property with DDA Corporation etc. sanction of plan raising the construction from the original jurisdiction to the appellate jurisdiction. To appoint further attorney, vakil, advocate and other special or general attorney for the above purpose or purposes and to compromise with draw them such proceedings, suits, applications, appeals, refer the matter to the commission arbitrator for decision to deposit diet Harpreet Kaur Vs Harbhajan Singh. . Page No. 17/31 money and get it back and to give statements. To receive realise and tender receipt thereafter of any due demand tome/us in respect of the abovementioned property and to get the deposit from the Govt. treasury and tender receipt thereof of any due demand to me/us in respect of the above mentioned property and to get the deposit from the Govt. treasury and tender receipt thereof and also to get the refund voucher of stamps from the Govt. treasury and to get the voucher of compensation encased. To apply for house tax, water and electricity connection and to deposit security money and get it back when it may be required and to apply for quota of cement, bricks and other building material etc. To enter into an agreement for sale of the above mentioned property with any person or persons.
To apply for sale permission from the proper authority and to obtain no objection certificate from the proper authorities.
Generally to do act and perform all such acts, deeds and things thought fit and proper by the attorney for management, sale mortgage etc. of the above mentioned property which are not even specifically mentioned in this deed."
36. PW1 during her cross-examination admitted that Late Sh.
Ajeet Pal Singh never exercise any right under said GPA by transferring or rent out or obtaining any connection (water or electricity) with respect to first and second floor without roof rights of the suit property in question. Therefore, husband of PW1 did not act upon the said GPA.
37. Further, the said GPA as such cannot be legally upheld as an instrument of transfer with regard to right, title or interest in the suit property in question as it is a creation of an agency whereby the grantor authorizes the grantee to do acts, specified therein on behalf of grantor, which when executed will be binding on the Harpreet Kaur Vs Harbhajan Singh. . Page No. 18/31 grantor. Reliance in this regard placed upon case law titled as Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana and Ors; (2012) 1 SCC 656.
38. The net result is that said GPA did not create any right, title or interest in favour of Late Sh. Ajeet Pal Singh. Even otherwise, Late Sh. Ajeet Pal Singh during his lifetime did not act upon the said attorney which indicated that he never recognized the significance of said documents. In such circumstances, Late Sh. Ajeet Pal Singh did not become owner of the suit property in question by way of said attorney. Therefore, I discarded the said document being inconsequential in nature.
39. PW1 also relied upon Will Ex PW1/3 allegedly executed by defendant no.1. PW1 in his cross-examination categorically deposed that she was not relying upon the said Will as defendant was alive. It means that PW1 herself did not want this Court to appreciate her case based on said Will. Therefore, I discarded the said Will being irrelevant in nature.
40. PW1 next relied upon receipt Ex PW1/4 which did not create any right, title or interest in favour of Late Sh. Ajeet Pal Singh in the wake of judgment titled as Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana and Ors (supra). Therefore, I discarded the said documents.
41. PW1 also relied upon agreement to sell & purchase Ex Harpreet Kaur Vs Harbhajan Singh. . Page No. 19/31 PW1/5. The said document was not complete as per record. PW1 in her cross-examination testified that her husband had not signed the agreement to sell & purchase. She also deposed that she had filed all the documents which were given to her by her husband. She did not answer as to where were remaining pages of the agreement to sell and purchase. She deposed that she had made efforts to trace out the remaining pages but fact of the matter remained that she did not file complete pages of agreement to sell and purchase. The said document therefore was incomplete in nature. Legally no credence can be placed upon said document. The said document as such did not give any right, title or interest to Late Ajeet Pal Singh with respect to the first and second floor without roof rights of the suit property in question. Therefore, I discarded the same being inconsequential in nature.
42. PW1 also relief upon affidavit of defendant no.1 Ex PW1/6 and possession slip Ex PW1/7 executed by defendant no.1. Those documents did not create any right, title or interest in favour of Late Ajeet Pal Singh with respect to first and second floor without roof rights of the suit property in question in the wake of Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana and Ors (supra). Infact possession slip was only signed by defendant no.1 and was not signed by any person below the column of "purchaser". Therefore, said possession slip was incomplete and no reliance can be placed on the said document.
43. Net result is that alleged title documents Ex PW1/2 to Ex Harpreet Kaur Vs Harbhajan Singh. . Page No. 20/31 PW1/7 as relied by PW1 for claiming right of Late Ajeet Pal Singh over first and second floor without roof rights of the suit property in question did not give any right, title or interest to Late Ajeet Pal Singh in respect of said property. If that is so the whole case of the plaintiffs crumbled down as it was based on their claim that Late Ajeet Pal Singh during his lifetime had purchased first and second floor without roof rights of the suit property in question from defendant no.1.
44. Once aforesaid conclusion is drawn, rest of the allegation of the plaintiffs regarding illegal transfer of suit property in question by defendant no.1 in favour of defendant no.2 and subsequently, defendant no.2 transferred it to defendant no.3 and defendant no.3 transferred it to defendant no.4, became immaterial for the purpose of adjudication of this case. So placing on record documents viz. GPA dated 01.09.1986, agreement between Kartar Kaur in favour of Harbhajan Singh, defendant no.1 are Ex PW1/8 & 9, Birth Certificate of plaintiff no.3 Ex PW1/10, Death certificate of husband of plaintiff no.1 Ex PW1/11, Certified copy of the sale deed dated 30.12.2008 in favour of defendant no.3 by defendant no.2 Ex PW1/12 and copy of birth certificate of plaintiff no.2 Ex PW1/13 became inconsequential for the purpose adjudication of this case. Therefore, I discarded the same.
45. Coming to the oral testimony of PW1, I find that she did not place on record any registered sale deed with respect to suit property in question in the name of Late Ajeet Pal Singh. So her Harpreet Kaur Vs Harbhajan Singh. . Page No. 21/31 claim that Late Ajeet Pal singh during his lifetime had purchased first and second floor without roof rights of the suit property in question from defendant no.1 remained bald claim. It was not proved by her.
46. PW1 in her cross-examination deposed that she had not filed any criminal complaint with respect to the threats given to her by defendants which improbablized her case. Reason being that any person in the situation of PW1 would definitely have approached to the police and would have filed criminal complaint. PW1 did not do so. Therefore, claim of the plaintiff did not appear to be probable.
47. PW1 as such failed to explain as to why she did not file complete pages of Ex PW1/5. It was not her case that said pages were stolen and missing. It was not her case that her husband had given incomplete agreement to sell to her. Therefore, her non- filing of complete agreement to sell & purchase Ex PW1/5 was not reasonably explained by her. This improbablized her case. More so, where she testified that whatever documents given to her by her husband were filed by her in the present case. It means that incomplete agreement to sell was executed and legally said incomplete document had no consequence.
48. PW1 further testified that after purchasing the suit property, she had visited the suit property but she did not remember the date of said visit. She was not sure about the changes which she found Harpreet Kaur Vs Harbhajan Singh. . Page No. 22/31 in the suit property in question when she visited the same in the year July, 2009. She had claimed that her husband had put locks on the the outer doors of both floors in her presence but she did not place on record any proof regarding those keys. Even she testified that she cannot bring those keys as those keys are not in her possession. So her claim that her husband Late Ajeet Pal Singh had put locks on the outer doors of both floors of the suit property remained bald averment which was not probablized by her.
49. Case of the plaintiffs become all the more improbablized once PW1 testified that she was living with her husband in Rajouri Garden which was at walking distance of 15 minutes from suit property. In the wake of said deposition, it is clear that distance between suit property in question and residence of plaintiffs was not far and if that is so then I failed to understand as to why plaintiffs did not visit suit property between 2005 to June, 2009. PW1 did not explain the same in her testimony. She also did not place on record any documentary proof that her husband had put any articles in the second floor of the suit property in question after purchasing it. She had claimed that her husband had put two chairs and one table in the second floor of the suit property in question but the said claim remained bald claim only.
50. PW1 further testified that no municipal taxes whatsoever were paid by her husband or herself in the suit property in question. She was not sure as to how many times her husband Harpreet Kaur Vs Harbhajan Singh. . Page No. 23/31 visited the suit property in question in his life time. She did not know as to when she had discussed with her husband about the suit property in question during his lifetime. She testified that she had noted that agreement to sell and purchase was not signed by her husband but she did not tell the same to her husband. I failed to understand as to why she did not tell her husband about the said short coming in the agreement to sell and purchase. So, her conduct improbablized her case also.
51. Further, PW1 was unable to tell as to when the defendant no.4 actually occupied the first floor of the suit property and why she had not file any case of eviction or any complaint case for tresspass against defendant no.4.
52. The net result is that PW1 failed to explain her own improbable conduct. She did not prove documents she had relied. She was not sure about relevant aspects of the case. Her testimony was therefore, untrustworthy and unreliable one. I discarded the same.
53. Per contra, defendants had examined themselves also, in order to probablize their case.
54. In my subsequent paragraphs, I will be appreciating the testimonies of defendants.
Testimony of Defendant No. 1.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 24/3155. Defendant no. 1 had examined himself as D1W1. He tendered in evidence his affidavit Ex.D-1, in which he reiterated the contents of his written statement. In his cross-examination, he deposed that he had no knowledge about the reliefs sought by plaintiff and had no knowledge as to why allegations were made in 'para 1' of his affidavit, against Sh. D.S. Paweriya, Ld. Counsel for plaintiffs. He also deposed that he had no knowledge about the allegations made against Sh. D.S. Paweriya, Ld. Counsel for plaintiffs in his affidavit. The said deposition indicated that he had no knowledge of the contents of his affidavit and that he had filed his written statement, without knowing the case of plaintiffs. So, his examination-in-chief is not found by me to be reliable and trustworthy.
56. In his cross-examination, defendant no. 1, categorically deposed that no agreement was executed between him and husband of plaintiff no. 1. He categorically denied the execution of documents Ex.PW1/1 to Ex.PW1/9. The said denial as such improbablized the case of plaintiffs. He did not admit the fact that he had ever sold first and second floor portion except roof rights of suit property in question to Late Sh. Ajeet Pal Singh, husband of plaintiff no. 1. He refuted the suggestions of plaintiffs regarding illegal execution of agreement dated 30.12.2008 between defendant no. 2 and defendant no. 3. Plaintiffs could not cull out any relevant fact regarding illegality in execution of sale deed dated 30.12.2008 executed by defendant no. 2 in favour of defendant no. 3 with respect to suit property in question. Therefore, his testimony did not help the cause of plaintiffs with regard to the illegality of sale deed dated 30.12.2008.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 25/3157. He refuted the suggestion that suit property in question, can fetch Rs. 15,000/- per month as was claimed by plaintiffs, while seeking relief of damages.
58. He deposed that all the title documents were taken away by Late Sh. Ajeet Pal Singh, from his residence. That deposition, coupled with the deposition of plaintiff no. 1 to the effect that she had filed all the title documents of suit property in question, which were handed over to her by Late Sh. Ajeet Pal Singh, probablized the situation that plaintiff no. 1 had filed complete set of documents allegedly executed by defendant no. 1 in favour of Late Sh. Ajeet Pal Singh. If that is so, then agreement to sell Ex.PW1/5, which was a single page and incomplete document, lost its credence. The said conclusion did not help the cause of plaintiffs.
59. So, from the testimony of defendant no. 1, plaintiffs failed to probalized the reliefs, sought by them in the suit. I believed the testimony of defendant no. 1, to said extent.
Testimony of Defendant No. 2 (Smt. Surinder Kaur)
60. Defendant no. 2 had examined herself as DW2. She tendered in evidence her affidavit Ex.DW2W-1/A, in which she reiterated the contents of her written statement.
61. In her cross-examination, she deposed that defendant no.1 never told her that suit property in question was sold by him to late Sh. Ajeet Pal Singh in the year 2005 which improbablized the case of plaintiffs.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 26/31She categorically deposed that she was explained about the contents of her written statement and plaint which probablized the situation that she knew the facts of this case. She was asked questions with regard to legal provisions which she did not answer and as such those questions were irrelevant as those questions did not affect the prayers, sought by the plaintiffs in the suit. She was put documents Ex.PW1/2 to Ex.PW1/7, for the purpose of identification of signature of her husband i.e. defendant no. 1, which she did not identify. The said response of this witness did not help the cause of plaintiffs, as she was neither executant of those documents nor she had witnessed the execution of those documents. Objection of Ld. Counsel for defendants, taken, while recording of her evidence, stands sustained and is decided accordingly.
62. Defendant no. 2 categorically admitted that she had executed sale deed Ex.DW1/PW1, which was dated 30.12.2008. She identified her signatures on the said sale deed. She was asked about the interpretation of 'para 7' of the said sale deed, which she could not reply. Being a lady, who had studied upto 5 th class as replied by her in her cross-examination, the aforesaid non-reply by her did not make her testimony doubtful. It was but expected from such a lady who had much studied, to reply in said manner. She identified that General Power of Attorney Ex.DW2W1/P1 was executed by her husband in her favour. She refuted the suggestions that said General Power of Attorney and sale deed were illegally executed. As such she stood the acid test of cross-examination. The sale deed dated 30.12.2008, cannot be declared as null and void, based on her testimony. I therefore believed her testimony to be trustworthy and reliable.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 27/31Testimony of Defendant No. 3 (Maninder Singh)
63. Defendant no. 3 examined himself as D3W1. He tendered in evidence his affidavit Ex.D3/A. In his cross-examination, he deposed that he studied upto 5th/6th standard and that whatever he had deposed in his affidavit, was at his instance.
64. In his cross-examination, defendant no. 3 admitted his signatures in Ex.DW3/P-2 which was mutual agreement dated 30.12.2008 between him and defendant no. 2. He also admitted that sale deed Ex.DW1/PW1 dated 30.12.2008 was executed by defendant no. 2 in his favour.
65. Defendant no. 3 was questioned various aspects, relating to construction in suit property in question and connections of basic supply to suit property in question. Those questions were irrelevant for the purpose of adjudication of this case. He refuted the suggestions regarding illegal execution of sale deed Ex.DW1/PW1. He was put documents Ex.PW1/3 to Ex.PW1/5 which was not relevant for the purpose of adjudication of this case as he was neither executant nor witness to those documents. He was asked questions with regard to consideration amount in the said sale deed which again was not relevant as plaintiffs had not witnessed the execution of the said sale deed.
66. The net result is that testimony of defendant no. 3 did not help the cause of plaintiffs. His testimony did not probablize the situation that plaintiffs are entitled to the reliefs, sought by them.
Harpreet Kaur Vs Harbhajan Singh. . Page No. 28/31Testimony of Defendant No. 4 (Jagjit Singh)
67. Defendant no. 4 had examined himself as D4W1. He tendered in evidence his affidavit Ex.D4W1/A, in which he reiterated the contents of his written statement.
68. In his cross-examination, defendant no. 4 admitted that written statement was signed by him. He was asked question viz. "in para 10- 20' of written statement, it was mentioned that defendant no. 1, 2 & 4 were not aware of any sale of 1st and 2nd floor in favour of husband of plaintiff no. 1. If you were not aware then who is aware about such transaction?" That question was objected by defendants as it was not part of pleadings. The said objections stands sustained as said question was beyond pleadings.
69. Similarly, defendant no. 4 was asked following questions by plaintiffs :-
"Q. In para no.10-20 of written statement, it is mentioned that defendant no. 1, 2 & 4 were not aware of any sale of first floor and second floor in favour of husband of plaintiff no.
1. If you were not aware then who is aware about such transaction ?
Q. In para no. 10-20 of written statement, it is mentioned that the stale and settled matter are unnecessarily being brought by the plaintiffs to disturb without any just cause occasion or excuse. What you have to say ?
Q. You have mentioned in para no. 10-20 that defendant no. 3 had made requisite inquiries. What you have to say ? Q. You have also mentioned in para no. 10-20 of the written statement at page no. 19 that inchoate documents were not given effect to as the plaintiff no. 1's husband failed to pay the consideration."Harpreet Kaur Vs Harbhajan Singh. . Page No. 29/31
70. All the aforesaid questions were irrelevant and therefore, objection raised by defendants stands sustained.
71. This witness categorically deposed that he was in possession of first floor of suit property in question since 2008-2009 when defendant no. 3 had constructed it. No suggestion was given by plaintiffs, countering the said deposition by this witness.
72. Defendant no. 4 as such did not depose in favour of plaintiffs regarding documents allegedly executed by defendant no. 1 in favour of husband of plaintiff no. 1 i.e. Late Sh. Ajeet Pal Singh. He did not depose that documents executed by defendants were forged and fabricated. Therefore, his testimony did not help the cause of plaintiffs.
73. The net result is that, plaintiffs failed to prove their case. Both the aforesaid issues are decided against plaintiffs.
RELIEF
74. The case of plaintiffs, was based on vague pleadings. The contents of the pleadings were improbable in nature. Plaintiffs did not remove the said vagueness in their pleadings by way of evidence, led by them. They did not probablize their case by cross-examining defendants' witnesses.
75. The whole crux of the case of plaintiffs was that defendant no. 1 had sold first and second floor except roof rights in suit property in question to husband of plaintiff no. 1. That claim of plaintiffs was never Harpreet Kaur Vs Harbhajan Singh. . Page No. 30/31 proved by them during trial.
76. Plaintiffs also had claimed that sale deed dated 30.12.2008, executed by defendant no. 2 in favour of defendant no. 3 was null and void. They failed to prove their said claim. Infact, plaintiffs had stated in the plaint that husband of plaintiff no. 1 had put some articles on second floor of suit property in question which was never proved by them. Infact, plaintiffs did not place on record any documentary proof regarding possession of any portion of suit property in question by Late Sh. Ajeet Pal Singh during his lifetime and after his death by plaintiffs.
77. Plaintiffs failed to prove their right, title and interest over suit property in question. Therefore, they are not entitled to any reliefs, sought by them in the plaint.
78. Suit stands accordingly, dismissed.
79. Decree-sheet be prepared accordingly.
80. File be consigned to Record Room, after necessary compliance.
Announced in the open Court (PRASHANT SHARMA) Dated: 5th February, 2020 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Harpreet Kaur Vs Harbhajan Singh. . Page No. 31/31