Delhi District Court
Rekha vs Dhir Singh on 31 May, 2024
IN THE COURT OF SH. AJEET NARAYAN: CIVIL JUDGE -02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 93933/16
In the matter of: -
Ms. Rekha
D/o Sh. Om Prakash
R/o House No. 902-E,
Rana Pratap, Gali No. 2,
Babarpur, Shahdara,
Delhi. .... Plaintiff
VERSUS
1. Sh. Dhir Singh
S/o Sh. Suraj Mal
2. Smt. Santosh
W/o Sh. Dhir Singh
3. Sh. Pradeep
S/o Sh. Dhir Singh
4. Sh. Kuldip
S/o Sh. Dhir Singh
5. Sh. Mukesh
S/o Sh. Suraj Mal
All R/o House No. 902-E,
First Floor, Rana Pratap,
Gali No. 2, Babarpur,
Shahdara, Delhi. ....Defendants
Date of Institution: 02.12.2002
Date of reserving the judgment: 20.03.2024
Date of Judgment: 31.05.2024
Final Judgment: Suit Dismissed.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 1 of 35
JUDGMENT
(Suit for Possession, Permanent Injunction, Declaration and for Damages, Mesne Profits for use and occupation)
1. This suit has been filed by the plaintiff, Smt. Rekha, against defendants, namely Sh. Dhir Singh (Defendant No. 1), Smt. Santosh (Defendant No. 2), Pardeep (Defendant No. 3), Kuldeep (Defendant No. 4) and Mukesh (Defendant No. 5). Defendant No. 2, Defendant No. 3 and Defendant No. 4 are respectively wife and sons of Defendant No. 1 and Defendant No. 5, Mukesh, is brother of Defendant No. 1. The present suit has been filed by plaintiff seeking declaration of title, recovery of possession of suit property; seeking a decree of permanent injunction against defendants thereby restraining them not to create third party interest or part with possession of suit property; along with recovery of damages and mesne profits for the use and occupation of the suit property and the costs of the suit.
PLAINTIFF'S VERSION
2. The brief facts of the case are that the plaintiff is the owner of the House bearing No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi, ad-measuring 30 sq. yards consisting of the Ground Floor and First Floor. That the plaintiff is in possession of the ground floor with respect to one room and one room of the ground floor is in the tenancy of Sh. Kapil on a monthly rent of Rs.1500/-, who is regularly paying the rent to the plaintiff. The accommodation of the plaintiff on the ground floor is CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 2 of 35 shown as marked "ABCD" and the accommodation in the occupation of the defendants on the second floor shown in red and marked "EFGH" in the site plan.
2.1 It is further submitted that the house in question was purchased by the plaintiff from Smt. Siri Wati for consideration for a sum of Rs.50,000/- and the General Power of Attorney, Will, Agreement to Sell and the receipt, all dated 24.07.2002 were executed by the said Smt. Siri Wati. That the plaintiff is handicapped and the plaintiff is residing in the disputed house alone. Defendant No.1 is the real Phoopha (husband of the real sister of the plaintiff's father). Defendant No. 2 is the real Bua of the plaintiff, Defendant No. 3 and 4 are the sons of defendant No.1 and 2 and defendant No. 5 is the real brother of defendant No.1 and defendant No. 5 is the Phoopha of the plaintiff.
2.2 It is further submitted that defendant Nos. 1 to 5 are known to the plaintiff and to the family members of the plaintiff, and therefore, defendant Nos. 1 to 5, sometime in January, 2002, approached the plaintiff and the parents of the plaintiff that defendant Nos. 1 to 5 are not having any accommodation in Delhi for residence and therefore, defendant Nos. 1 to 5 may be allowed to use and occupy the first floor of the House No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi consisting of two rooms, gallery W.C. bathroom and balcony (hereinafter the Suit Property). The accommodation in the use and occupation of defendant Nos. 1 to 5 is more fully shown in color red in the site plan filed with the plaint. That defendant Nos. 1 to 5 being the relatives of the plaintiff, were allowed to CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 3 of 35 use and occupy the first floor of the aforesaid house, free of costs, without charging any amount of rent etc. from defendant Nos. 1 to 5.
2.3 It is further submitted that defendant Nos. 1 to 5, in the month of September, 2002 were asked to vacate the first-floor accommodation and to hand over the vacate and peaceful possession of the first-floor accommodation to the plaintiff, but the defendant Nos. 1 to 5 started harassing, and threatening the plaintiff and flatly refused to vacate the first floor of the house in dispute.
2.4 It is further submitted that defendant Nos. 1 to 5 started alleging that the entire House No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi has been purchased by defendant Nos. 1 to 5 from previous owner and the previous owner has executed the documents of title in their favour and they are likely to mutate the property in their names in the record of MCD.
2.5 It is further submitted that, since defendant Nos. 1 to 5 failed to vacate the house and to hand over the peaceful possession of the first floor of the disputed house to the plaintiff, therefore, the quarrel also took place between defendant Nos. 1 to 5 and with Sh. Om Prakash, the father of the plaintiff and a case U/s 107/150 Cr.P.C. was also registered by the police against the defendant Nos. 1 to 5 with P.S. Welcome, Delhi on 26.10.2002.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 4 of 352.6 It is further submitted that the possession of the defendants No. 1 to 5 on the first floor of the house in dispute is that of trespasser and unauthorized occupant, therefore have no right or title to remain any more in possession of the first floor and are liable to be dispossessed from the first floor of the property, hence, suit for possession is being filed against the defendants. It is further submitted that defendant Nos. 1 to 5 without any right, title or authority of any kind whatsoever, are trying to grab the entire house and as such the defendants are liable to be restrained from transferring, mortgaging or creating third party interest with respect to the house in dispute and as such the defendants are liable to be restrained from handing over the possession of the first floor to anyone else except to the plaintiff, hence the suit for permanent injunction is also being file against the defendants.
2.7 It is further submitted that on the basis of the documents mentioned in para-No. 3 of the plaint, and executed by Smt. Siri Wati in favour of the plaintiff, the plaintiff is liable to be declared the owner of House No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi, hence the suit for declaration is being filed.
2.8 It is further submitted that in case the defendants vacate the first floor of the house in question, the first floor of the house can fetch, the monthly rent of Rs.1000/- and as such the defendants are liable to pay the damages/mesne profits to the plaintiff for the use and occupation of the first floor @ Rs.1000/- p.m. w.e.f. January, 2022 till November, 2022, CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 5 of 35 hence the suit for damages/mesne profits for use and occupation is also being file against the defendants. Hence, the present suit with the following reliefs: -
a) A decree of possession may kindly be passed in favour of the plaintiff and against the defendants thereby directing the defendants to hand over the possession of the first floor of the House No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi to the plaintiff as shown in colour red in the site plan filed with the plaint.
b) A decree of Permanent Injunction may kindly be passed in favour of the plaintiff and against the defendants thereby restraining the defendants not to create third party interest of the first floor in favour of anyone else with respect to the portion shown red in the site plan, and not to sub-let, assign or part with possession of the first floor of the house in any manner whatsoever as show red in the site plan filed with the plaint.
c) A decree of damages and mesne profits may also be passed in favour of the plaintiff and against defendant Nos. 1 to 5 thereby directing them to pay damages to the plaintiff for the use and occupation of the first floor @ Rs. 1000/- per month.
d) Cost of the suit.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 6 of 35
DEFENDANT'S VERSION
3. Summons of the suit for settlement of issues were issued and served upon the defendant, in pursuance of which, they filed their joint written statement. It is averred in the written statement that the plaintiff has not come to this Court with clean hands and has suppressed the material facts from this Hon'ble Court willfully and intentionally, whereas the plaintiff is very much familiar to the facts of the case and also to the dispute between the father of the plaintiff and the defendants.
3.1 It is further averred that the plaintiff is very much aware of the very fact that the father of the plaintiff had file suit against defendant No.2 for the eviction U/s 14(1)(a) of D.R.C. Act, which is pending before the court of Sh. S.K. Jain, the then ARC, Shahdara, Delhi. According to the contents of the above eviction petition, the father of the plaintiff is the landlord of the suit property and the father of the plaintiff has alleged respondent No. 2 as his tenant @ Rs.900/- per month since the year 1997. Hence the case is not maintainable and is liable to be rejected.
3.2 It is further averred that defendant Nos. 1 to 4 are residing in the premises No. 900-E, Rana Pratap Gali No. 2 and other No. E-893, Rana Pratap Gali No.1, Babarpur, Shahdara, Delhi-110032, measuring area 150 sq. yards and the same was given to defendant No. 2 by the father of defendant no. 2 in oral partition in the year 1981. Since then, defendant No. 2 with her family members is residing in the premises number 900-E, CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 7 of 35 Rana Pratap Gali No. 2 and other number E-893, Rana Pratap Gali No.1, Babarpur, Shahdara, Delhi-110032 respectively. That the defendants have no concern with the suit property No. 902-E, Rana Pratap Gali No. 2, Babarpur, Delhi, nor the plaintiff is the owner of the suit property nor she is in possession of the suit property nor residing there. The plaintiff is residing in House (Old No. 68) and New No. 314, Tagore Wali Gali Babarpur, Delhi with her parents after getting the divorce from her husband. Therefore, the suit is not maintainable and is liable to be dismissed on this very ground alone.
3.3 It is further submitted that the plaintiff had got the false documents prepared from her mother in her favour with intent to file the present false suit against the defendants in order to cause mental tortures and harassment to the defendants. While the mother of the plaintiff is not the owner of the suit property nor she has any right to transfer the suit property nor she is in possession of the same. So, the case is not maintainable and is liable to be dismissed on this very ground alone.
3.4 It is further submitted that in fact Sh. Ashok Kumar and Sh. Anil Kumar are residing as the tenant in the suit premises no. 902-E, Rana Pratap Gali, Babarpur, Delhi, under the landlord ship of the father of the plaintiff. The defendants are not residing in the suit property but the wrong site plan is submitted by the plaintiff before this Court. Hence, the suit is not maintainable and is liable to be dismissed on this very ground alone.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 8 of 353.5 It is further submitted that the plaintiff is the daughter of brother of defendant No. 2 and the plaintiff is well known to each and every defendant and defendant No. 1 is the "Phoopha", defendant No. 2 is the "Bua", defendant Nos. 3 & 4 are cousin brothers (sons of Bua Smt. Santosh, defendant No.2) and defendant No. 5 is the brother of "Phoopha" defendant No.1. That defendant No. 5 is neither residing in the suit property No.902-E, Rana Pratap Gali No. 2, nor residing with defendant Nos. 1 to 4 in the property No. 900-E, Rana Pratap Gali No. 2 and other No. 893-E, Rana Pratap Gali No.1, Babarpur, Delhi. The said property is two sides open in this premise, defendant Nos. 1 to 4 in possession of four rooms, two ground floors and two first floors with latrine bathroom. That on ground floor in the portion of Gali No.1, in one room, brother of defendant No.1 namely, Vir Singh is residing since 1990. This fact is also well-known to the plaintiff and three rooms are also let out to and one tin- shed on ground floor to Sh. Rajesh and Kapil, at the rate of Rs.1500/- per month in the year and since 1995, the rate of rent has been increased from Rs.1500/- per month to Rs. 2000/- per month, excluding water and electricity charges.
3.6 It is further submitted that the property of the defendants bearing Municipal No. 900-E, Rana Pratap Gali No. 2, number of one side and other side number is 893-E, Rana Pratap Gali No.1, Babarpur, Delhi, all the defendants are residing and are in possession of the property. That the above property bearing No. 900-E (and 893-E on the other side), consists four rooms at the time when the same was given to defendant No. CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 9 of 35 2 by the father of defendant No. 2, during his lifetime and thereafter two rooms of the defendant's property has gone much below from the original level of the road and the defendant Nos. 1 & 2 had got two rooms reconstructed on the ground floor and two rooms constructed on the first floor with latrine bathroom in the year 1994. This fact is also well-known to the plaintiff and her family members. Rests of the contentions are denied by the defendants.
4. In the replication, the plaintiff has denied all the averments made by the defendants in the written statement, and reiterated those made in the plaint.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 11.04.2005: -
i) Whether the plaintiff is entitled for a decree of declaration to the effect that she is the owner of the suit property? OPP
ii) Whether the plaintiff is entitled for a decree of possession of the suit property? OPP
iii) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP
iv) Whether the plaintiff is entitled for decree of damages and mesne profits, as prayed for? OPP
v) Relief.CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 10 of 35
PLAINTIFF'S EVIDENCE
6. In support of her case, the plaintiff got herself examined as PW-1 by tendering her evidence by way of affidavit Ex. P-1. She relied upon the following documents: -
i) Ex.PW1/1 is the site plan of the suit property.
ii) Ex.PW1/2 (Colly.) is the GPA, Will, Receipt and Agreement
to sell all dated 24-07-2002.
iii) Ex.PW1/3 (colly.) is the receipts of House Tax, electricity
connection and water connection.
PW-1 was cross-examined at length by Ld. Counsel for the defendants. During cross examination of PW-1, documents already on record including GPA, Agreement to sell, Affidavit and Receipt all dated 15-04-1996, which are Ex. PW1/D1 (Colly), are shown to witness, to which witness has replied that the said documents are filed by PW-1 and were executed by her father, Om Prakash S/o- Sh. Sohan Lal in favour of her mother Smt. Siriwati.
7. PW-2 is Sh. Imamuddin S/o Mohd. Shafi, who tendered his evidence by way of affidavit Ex.PW2/A. PW-2 has deposed that he has done wood work in the suit premises and plaintiff Smt. Rekha is his neighbor and she is the owner of suit property and all the expenses for the work has been spent by plaintiff. PW-2 has further deposed that premises CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 11 of 35 were let out to defendants in his presence without rent. PW-2 was cross- examined at length by Ld. Counsel for the defendants.
8. PW-3 is Sh. Om Prakash S/o Sh. Ram Chand, who tendered his evidence by way of affidavit Ex.PW3/A. PW-3 has deposed that he has constructed the suit premises and plaintiff Smt. Rekha is his neighbor and she is the owner of suit property and all the expenses for the work has been spent by plaintiff. PW-3 has further deposed that premised were let out to defendants in his presence without rent. PW-3 was cross-examined at length by Ld. Counsel for the defendants.
9. PW-4 is Sh. Om Prakash S/o Sh. Sohan Lal, who tendered his evidence by way of affidavit Ex.PW4/A. PW-4 has deposed that he is the father of plaintiff and he was the lawful recorded owner of the suit property and he has sold the suit property to his wife Smt. Siriwati and his wife has further sold the said property to the plaintiff. He has further deposed that plaintiff has given the first-floor portion of the suit property to the defendants without rent in his presence. PW-4 was cross-examined at length by Ld. Counsel for the defendants.
10. PW-5 is Smt. Siriwati, W/o Sh. Om Prakash, who tendered her evidence by way of affidavit Ex.PW5/A. PW-5 has deposed that she was the owner of suit property and have sold the suit premises to plaintiff through GPA, will, agreement to sell and receipt for the sum of Rs.50,000/- on 24-07-2002. PW-5 was cross-examined at length by Ld. Counsel for the defendants.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 12 of 3511. PW-6 is Sh. Bal Kishan S/o Sh. Sohan Lal, who tendered his evidence by way of affidavit Ex.PW6/A. PW-6 has deposed that plaintiff is his neighbour and is the owner of suit property and defendants are relatives of plaintiff and her mother and father and defendants are illegally occupying the suit premises. PW-6 has further deposed that premised were let out to defendants in his presence without rent for living purpose for some period. PW-6 was cross-examined at length by Ld. Counsel for the defendants.
12. PW-7 is Smt. Urmila S/o Sh. Mool Chand, who tendered her evidence by way of affidavit Ex.PW7/A. PW-7 has deposed that she is living in the vicinity of premises and as per her knowledge, plaintiff is the owner of suit premises and as per her knowledge, the defendants are close relatives of plaintiff and they are illegally occupying the suit premises. PW-7 was cross-examined at length by Ld. Counsel for the defendants.
13. PW-8 is Sh. Satyapal Bhaduri, Head Clerk, from House Tax Department, EDMC, Shahdara, North Zone, Delhi. He deposed that he brought the summoned record of property No. 902-E, Rana Pratap Gali No. 2, Babarpur, Delhi. He further deposed that the aforesaid property is assessed in the name of Sh. Om Prakash from 01.04.1983 at the rateable value 1080/- w.e.f. 01.04.1983. As per record, the property is exempted for assessment of house tax, therefore, there exists no record for the payment of any house tax of this property and the property is not mutated thereafter in the name of any person. PW-8 was cross-examined at length by Ld. Counsel for the defendants.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 13 of 35Thereafter, vide order dated 08.07.2015, my Ld. Predecessor closed the P.E. DEFENDANT'S EVIDENCE
14. On the other hand, defendant No.1 got himself examined as DW-1 by filing his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents: -
i) Ex. DW1/1 is the certified copy of the Eviction Petition dated 18.09.2001.
ii) Ex.DW1/2 is the certified copy of the order-sheet dated 05.05.2005.
iii) Ex.DW1/3 is the copy of ration card of his family, which is de-
exhibited from the affidavit and is marked as Mark 'A'.
iv) Ex.DW1/4 is copy of election I Card of the real brother of deponent, cash receipt, ESI card, Ration Card of the family along with election I card of the wife of brother of deponent, which is de-exhibited from the affidavit and is marked as Mark 'B' (Colly.)
v) Ex.DW1/5 is the copy of the Progress Report for the year 1990-91 of son of the deponent namely, Kuldeep.
iv) Ex.DW1/6 is the copy of the summon/notice issued by the Special Executive Magistrate, Seelampur, North East, Delhi U/s 107/150 Cr.P.C. which is now de-exhibited and marked as Mark 'C'.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 14 of 35DW-1 was cross-examined at length by Ld. Counsel for the plaintiff.
15. DW-2 is Sh. Monu S/o Sh. Dhir Singh. He tendered his evidence by way of affidavit Ex.DW2/A. DW-2 is the son of the defendant No. 1 and has reiterated the contents of written statement. He relied upon the documents already exhibited in the evidence of DW-1 Sh. Dheer Singh.
DW-2 was cross-examined at length by Ld. Counsel for the plaintiff.
16. DW-3 is Sh. Kuldeep S/o Sh. Dheer Singh. He tendered his evidence by way of affidavit Ex.DW3/A. DW-3 is also the son of the defendant No. 1 and has reiterated the contents of written statement. He relied upon the documents already exhibited in the evidence of DW-1 Sh. Dheer Singh.
DW-3 was cross-examined at length by Ld. Counsel for the plaintiff.
17. Thereafter, Ld. Counsel for the defendants closed his D.E. on 31.08.2022.
FINDINGS
18. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issue-wise findings are as CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 15 of 35 under: -
Both the issues, Issue Nos. 1 and 2 shall be taken together and decided at the same time as they are inter-connected and same appreciation of evidence is required to decide both the issues:-Issue Nos. 1 & 2
i) Whether the plaintiff is entitled for a decree of declaration to the effect that she is the owner of the suit property? OPP
ii) Whether the plaintiff is entitled for a decree of possession of the suit property? OPP
19. The burden of proving both the issues is on the plaintiff. It is the claim of the plaintiff that she is the owner of the House bearing No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi, ad-measuring 30 sq. yards consisting of the Ground Floor and First Floor and she is in possession of the ground floor with respect to one room and one room of the ground floor is in the tenancy of Sh. Kapil who gives rent to plaintiff and the suit property in question was purchased by the plaintiff from Smt. Siri Wati (her mother) for consideration for a sum of Rs.50,000/- vide General Power of Attorney, Will, Agreement to Sell and the receipt, all dated 24.07.2002. It is further submitted that defendant No. 2 is the real Bua of the plaintiff, defendant No.1 is the real Phoopha (husband of the real sister of the plaintiff's father), defendant No. 3 and 4 are the sons of defendant No.1 and 2 and defendant No. 5 is the real brother of defendant No.1 and defendant Nos. 1 to 5, sometime in January, 2002, approached the CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 16 of 35 plaintiff and the parents of the plaintiff that defendant Nos. 1 to 5 are not having any accommodation in Delhi for residence and therefore, defendant Nos. 1 to 5 may be allowed to use and occupy the first floor of the House No. 902-E, Rana Pratap, Gali No. 2, Babarpur, Shahdara, Delhi consisting of two rooms, gallery W.C. bathroom and balcony ( the suit property). It is further submitted that defendant Nos. 1 to 5, in the month of September, 2002, were asked to vacate the first-floor accommodation and to hand over the vacate and peaceful possession of the first-floor accommodation to the plaintiff, but the defendant Nos. 1 to 5 refused to vacate the first floor of the house in dispute. Hence, it is the case of plaintiff that defendants are unauthorized occupants and the trespassers in the suit property and defendants have no right, title or interest in the suit property and are liable to be dispossessed from the suit property.
Per contra it is the case of the defendants that the defendants are residing in premises No. 900-B, Rana Pratap Gali No. 2, and premises No. 893-E, Rana Pratap Gali No.1, Babarpur Shahdara, Delhi measuring area 150 sq. yards which was given to defendant No.2 (Bua of the plaintiff) by the father of defendant No.2 (i.e. Grand-father of the plaintiff and father of defendant No. 2) in oral partition in the year 1981 and since then defendants are residing in the above said premises. The defendants have no concern with the suit property bearing No. 902-E, Rana Pratap Gali No. 2, Babarpur, Delhi. Further, it is submitted that the plaintiff is neither the owner of the suit property nor she is in possession of the suit property and she is residing in a separate property with her parents. It is further submitted that Kapil and Rajesh are the tenants of defendant No.2 in one CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 17 of 35 portion on the ground floor of the property bearing No. 900-E, Rana Pratap Gali No. 2, and premises No. 893-E, Rana Pratap Gali No.1, Babarpur Shahdara, Delhi.
20. Therefore, the plaintiff is seeking decree of declaration that she be declared as the owner of the suit property and on the basis of title of the suit property she is seeking the relief of possession; and the consequential relief of injunction and relief of damages and mesne profit is also based on the relief of possession.
Plaintiff has relied upon the documents i.e. General Power of Attorney, Will, Agreement to Sell and the Receipt, all dated 24.07.2002 which is Ex.PW1/2 (Colly.), further relied on the GPA, Agreement to Sell, Affidavit and the Receipt, all dated 15.04.1996 which is Ex.PW1/D-1 (Colly.), further relied on the House Tax Receipts and Electricity Receipts which are Ex.PW1/3 (Colly.). The property in question has been alleged to be transferred from Om Prakash S/o Sh. Sohan Lal (father of the plaintiff) in favour of Smt. Siri Wati W/o Sh. Om Prakash (mother of the plaintiff) by way of notarized GPA, Agreement to Sell, Affidavit and receipt, all dated 15.04.1996 for the sum of Rs. 45,000/-. And further, the property in question has been alleged to be transferred from Smt. Siri Wati to the plaintiff, vide GPA, Will, Agreement to Sell, and receipt, all dated 24.07.2002 for a sum of Rs. 50,000/-. Now, the documents dated 24.07.2002 Ex.PW1/2 (Colly.) is registered but the documents which are Ex.PW1/D-1 are not registered. Perusal of both these set of Agreements to sell shows that the area of the suit property is 30 sq. yards and the suit CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 18 of 35 property is part of Khasra No. 148, situated at Village Babarpur, Shahdara, Delhi. It is also clear that by way of the documents dated 24.07.2002, the possession has been given to the plaintiff.
It is not res-integra that the title in the property cannot be transferred by way of Agreement to Sell. As per Sec. 54 of Transfer of Property Act (TPA), a contract of sale i.e. an agreement to Sell does not of itself, create any interest in or charge on such property and a transfer of immovable property by way of sale can only be by a Deed of Conveyance (Sale Deed). In the absence of a Sale Deed, duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred. Hon'ble Apex Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656, in considering the scope of an agreement to sell has observed that:
"18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title, or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the T.P. Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the T.P. Act). According to the T.P. Act, an agreement of sale, whether with possession or CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 19 of 35 without possession, is not a conveyance. Section 54 of the T.P. Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
Hon'ble Supreme Court of India has reiterated the above said law in G.T. Girish v. Y. Subba Raju, (2022) 12 SCC 321 , and Ghanshyam Sarda v. J.K. Jute Mills Co. Ltd. (2017) 1 SCC 599, and recently restated in Munishamappa v M.Rama Reddy & Ors, 2023 SCC OnLine SC 640.
Hence, as per Suraj Lamps Judgment (Supra), only in the case of law of part performance as provided in Section 53-A of TP Act, the party claiming rights and protection of possession on the basis of agreement to sell can be considered subject to conditions mentioned therein. Hence, by the combined reading of the provisions, it is clear that as per Sec. 53-A of TPA, it is the doctrine of part performance that the possession of a party (defendants herein) is protected in case any person contracts to transfer for consideration, any immovable property by writing signed by him and the transferee has in part performance of the contract has taken possession of the property, then despite the fact that the sale deed has not been executed, the possession of transferee has to be protected. But the only condition which is required to be fulfilled in this case is that the Agreement to Sell should be registered. By the amendment of 2001 in TPA, the words "the Contract though required to be registered, has not been registered or" have been omitted from the provision. The effect of the amendment is that now if any person takes possession in pursuance to a contract which is required to be registered but has not been registered; the transferee has no right to CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 20 of 35 remain in possession of the property.
In the present case, since the suit has been filed by the plaintiff on the basis of registered agreement to sell dated 24-07-2002 and also possession has been transferred to plaintiff, but doctrine of part performance cannot be invoked to file suit, only possession can be protected/defended on the basis of part performance. Additionally, since prior agreement to sell dated 15-04-1996 is unregistered, title cannot be said to be validly passed through it.
In the present case, the plaintiff is claiming title of the suit property through her mother and finally through her father by way of Agreement to Sell etc. dated 24.07.2002 and 15.04.1996; and the Agreement to Sell etc. dated 15.04.1996 from which the mother of the plaintiff is claiming title from the father of the plaintiff is unregistered. Now, most importantly, the plaintiff has failed to show that from where the father of the plaintiff Om Prakash is claiming the title of the suit property.
Father of the plaintiff, Sh. Om Prakash has been called as PW- 4, and he has deposed in his affidavit of evidence that he is the lawful recorded owner of the suit property and he had sold the said suit property to his wife and his wife has further sold to her daughter i.e. the plaintiff. Coming to the cross-examination of PW-4, he has deposed that he does not remember the Khasra numbers which has devolved to him as per his ancestral right from his father. He has further deposed in his cross- examination that the suit property bearing No. 902-E is part of Khasra No. 148, Village Babarpur, Delhi. PW-4 has deposed that the right on Khasra No. 148, Village Babarpur, Delhi were inherited by him and he is in CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 21 of 35 possession of around 500 sq. yards of Khasra No. 148, village Babarpur, Delhi. But further in his cross-examination, he has also deposed that Khasra No. 148, situated at Revenue Estate Babarpur, Delhi is not the ancestral property but the same was purchased by his father. PW-4 has further deposed that his father expired on 10.01.1985 and he has also admitted in the cross-examination that Khasra No. 148 did not belong to his family, but is the property of Gram Sabha and previously it was property of his father. PW-4 has also admitted that entire area of Khasra No. 148 now belongs to Gram Sabha, Village Babarpur, Delhi. Further, PW-4 has denied the suggestion that he was having no right to sell or transfer the property which is part of Khasra No. 148 in village Babarpur after the acquisition by the authority in the year 1988. Although, he has himself admitted that he did not remember the exact date of Notification regarding the acquisition by the DDA, but it may be in the year 1988. Hence, from the cross-examination of PW-4, it is clear that there are material contradictions in the testimony of PW-4. Firstly, he has deposed that the Khasra No. 148 of which the suit property is a part is his ancestral property and further he has also said that the said Khasra No. is not the ancestral property but was the property purchased by his father. Further, he has also admitted that presently Khasra No. 148 vests in the Gram Sabha. Therefore, the title of the father of the plaintiff to the suit property is not clear and is also not proved that whether he has inherited the suit property from his father as ancestral property or whether he has received the suit property from his father being his separately purchased property. Hence, the title of the father of the plaintiff to the suit property is under cloud and CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 22 of 35 is not proved by the plaintiff as there is no document on record to show whether the father of the plaintiff had received the suit property by way of partition or by way of Will or by way of any Conveyance Deed.
It is established principle that no one can transfer a better title than what he himself possesses. In this case, since there was no clear title of the suit property with the father of the plaintiff, then the title in the suit property cannot be transferred firstly to the mother of the plaintiff and then finally to the plaintiff herself. Also, a reference to the aforesaid discussion shows that unless there is a proper registered sale deed, title of an immovable property does not pass.
21. There are other contradictions and inadequacies in the version and case of the plaintiff. In the present case, when the defendants have deposed that they are living in property bearing No.900-E and 893-E and not in the suit property i.e. 902-E, then it was the responsibility of the plaintiff to prove the identification of the suit property by calling the Municipal Record of the suit property or should have sought the appointment of Local Commissioner in this regard, but no such steps have been taken by the plaintiff to establish the exact identification of the suit property whether the defendants are occupying 902-E or 900-E and 893-E. Also, the plaintiff has claimed that the defendants have been allowed to reside in the suit property by the family of the plaintiff as a licensee and they are unauthorized occupants, but on the other hand, defendants have brought on the record the certified copy of the Eviction Petition bearing U/s 14(1) (a) DRC Act filed by the father of the plaintiff Sh. Om Prakash against defendant No.2 in the year 2001 and which was CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 23 of 35 withdrawn in the year 2005 by the father of the plaintiff. It shows that the version of the plaintiff that the defendants are unauthorized occupants is incorrect as the PW-4, father of the plaintiff has himself admitted in his cross-examination that he had filed a suit for eviction against defendant No. 2 regarding the suit property under the DRC Act.
Also, coming to the other contradictions in the version of the plaintiff, mother of the plaintiff has been examined as PW-5 who has deposed that the property No. 902-E is not mentioned in the GPA and Agreement to Sell dated 15.04.1996 and only Khasra No. 148 is mentioned. Also, perusal of the GPA, Agreement to Sell etc., dated 15.04.1996, shows that there is whitener on the paper where 902-E is written and there are no signatures on the corrections which show that there might be tampering on the said document.
Now, coming to the cross-examination of PW-6, Sh. Bal Kishan, who is brother of father of the plaintiff and of defendant no. 2. He has deposed in his cross-examination that they are 4 brothers and sisters namely, Om Prakash (father of the plaintiff), Bal Kishan, (PW-6 himself), Late Sh. Babu Ram and Smt. Santosh (defendant No. 2), who are the legal heirs of Late Sh. Sohan Lal. PW-6 has deposed that his father has partitioned the property during his lifetime and the said partition was partly in oral in partly in written. Most importantly, PW-6 has deposed that names of all the share holders did not get mutated in their names or there is no partition of shares in Revenue Records. PW-6 has further deposed that he is having no knowledge of Khasra No. of the properties regarding which the GPA was executed by his father in his name and he is also having no CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 24 of 35 personal knowledge of the Khasra Nos. of the properties portioned to all the Lrs of Sh. Sohan Lal through GPA. He has further deposed that out of Khasra No. 148, his father gave him 150 sq. Yards. He has further deposed that at present there are six houses of their family members in Khasra No. 148 and the remaining portion was sold out by the family members. The testimony of PW-6 shows that there is no clarity over the respective shares of the father of the plaintiff, Defendant No.2 or other brothers and it cannot be conclusively said that whether and which portion of the title of Khasra No. 148 lies with the father of the plantiff. Another important document, which needs to be discussed here, is Mark DW1/P2, which was shown during the cross examination of DW-1, which is the copy of suit No. CS No. 152/17 as Smt. Santosh v Om Prakash, a partition suit filed by the defendant No. 2 here, against father of plaintiff, i.e., her brother and also against other brothers, which was dismissed by the court on 22-11-2018. The said suit is filed by defendant No. 2, qua property No. 902-E, 900-E out of Khasra No. 148 and other properties of other Khasra numbers of Sohan Lal, which was dismissed on the ground that other co-owners of properties in question, i.e., brothers of Sohan Lal. In that case, father of plaintiff herein, Om Prakash and other brothers have taken the stand that Khasra No. 148 has already vested in Gaon Sabha, which fact has also come in the testimony of PW-4. Also, father of plaintiff has admitted that property in question in that suit was jointly held by the brothers of Sohan Lal, and till date the property remains undivided. Therefore, suit was held bad for non-joinder of necessary parties. So, it is obvious that clear title of suit property in the present case, has not vested into the father of plaintiff, CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 25 of 35 so it is doubtful, how the father of plaintiff can transfer the same to plaintiff.
Coming to the other witnesses which have been examined by the plaintiff in P.E., they are not important witnesses for the case of plaintiff and they cannot prove the title of the plaintiff.
PW-1 has further relied upon the house tax receipts and electricity receipts which are Ex.PW1/3(Colly.); the house tax receipt depicts the name of Sh. Om Prakash, father of the plaintiff and the property No. 902-E, East Babarpur, Delhi, the other documents are electricity receipts but they do not depict the property number in respect to which house number the bills pertains to. The plaintiff has also summoned the official witness from the House Tax Department, EDMC, Shahdara, Delhi as PW-8, who has deposed that the property bearing No. 902-E, Rana Pratap Gali No. 2, Babarpur, Delhi is assessed in the name of Sh. Om Prakash from 01.04.1983 and since the property is exempted for assessment of House Tax, therefore, there exists no record for payment of any House Tax of this property. In the cross-examination of PW-8, he has deposed that at the time of assessment there is no mutation in the name of Om Prakash as no document like Sale Deed, Khasra Khatauni etc. were provided by him. Even otherwise, the House Tax receipt does not establish the title of any property; hence plaintiff has failed to prove the title in his favour.
22. The present suit for decree of declaration of ownership and for decree of possession is filed on the basis of title documents. The relief of CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 26 of 35 possession is being sought by the plaintiff on the basis of title. In case, the plaintiff has failed to establish clear title to the suit property, the relief of possession also cannot be granted as the relief of possession is sought on the basis of title only.
In Chander Dutt Sharma v. Prem Chand 2018 SCC OnLine Del 9903, the Hon'ble High Court of Delhi held as under with respect to a suit for possession:-
"20.....
(A) A suit for recovery of possession of immovable property can be filed either under Section 5 or under Section 6 of the Specific Relief Act, 1963.
(B) A suit under Section 5 can be filed, either:
(i) on the basis of prior possession and not on title, when the plaintiff while in possession of the property has been dispossessed, under Article 64 of the Schedule to the Limitation Act, 1963, within twelve years from the date of dispossession; or,
(ii) based on title, under Article 65 of the Schedule to the Limitation Act, within twelve year from the date when the possession of the defendant becomes adverse to the plaintiff.
(C) A suit under Section 6 can be filed if any person is dispossessed from immovable property without his consent, otherwise than in due process of law, but within six months of the date of dispossession.
(D) The suit is admittedly not under Section 6 of the Specific Relief Act and is under Section 5 of the Specific Relief Act.
(E) A mere possession of immovable property, even if accompanied with GPA, Agreement to Sell, Affidavit etc., does CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 27 of 35 not constitute title to the immovable property. Reference, if any required in this regard can be made to the dicta of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana (2009) 7 SCC 363 and (2012) 1 SCC 656 setting aside the dicta of the Division Bench of this Court in Asha M Jain Vs. Canara Bank (2001) 94 DLT 841.
(F) The appellant/plaintiff, claiming only GPA, Agreement to Sell, Affidavit etc. from respondents No.4&5 in his favour, thus had / has no title to the property.
(G) An agreement purchaser has no right, title, interest in immovable property and has only a right to seek specific performance of such agreement. Reference if any required can be made to (i) Jiwan Dass Rawal Vs. Narain Dass AIR 1981 Del 291; (ii) Deewan Arora Vs. Tara Devi Sen (2009) 163 DLT 520; (iii) Sunil Kapoor Vs. Himmat Singh (2010) 167 DLT 806; and, (iv) Samarjeet Chakravarty Vs. Tej Properties Private Limited 2014 SCC OnLine Del 3809.
(H) From the cancellation of Agreement to Sell, GPA etc. by the respondents No.4&5, on the basis whereof the first Appellate Court has held the Agreement to Sell, GPA etc. to have stood proved, it appears that the respondents no.4&5 also were reneging there from. A cause of action for the appellant/plaintiff to sue for specific performance had thus accrued. The appellant / plaintiff however till date has not sued therefore.
(I) Though the appellant/plaintiff, under Section 5, had a choice to sue either on the basis of prior possession or on the basis of title but the appellant/plaintiff, in-spite of having no title to the property, filed the suit by drafting the plaint not on the basis of prior possession but on the basis of title. The CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 28 of 35 appellant/plaintiff, throughout the plaint has described himself as purchaser of the property from respondents No.4&5. Owing thereto only, issue also framed in the suit was qua ownership of appellant/plaintiff and not qua possession of the appellant/plaintiff. Rather, the counsel for the appellant/plaintiff today also, upon it being put to him as to why the appellant/plaintiff did not sue for specific performance of the Agreement to Sell, states that there was/is no need to sue for specific performance since the appellant/plaintiff was already owner in possession of the immovable property.
(J) Owing to the appellant/plaintiff having sued on the basis of title which the appellant/plaintiff did not possess, and not on the basis of prior possession, Issue No.1 got framed in the suit, was decided against the appellant/plaintiff.
(K) Though issues are to be framed by the Court but with the assistance of the counsels. If the appellant/plaintiff had sued for possession on the basis of prior possession and the Court had wrongly framed the issue treating the suit as on the basis of title, it was incumbent upon the appellant/plaintiff to apply for amendment of issues and which was not done by appellant/plaintiff.
(L) However, even if the appellant/plaintiff is treated as having sued for possession on the basis of prior possession and even if non seeking of an issue qua prior possession is ignored, the recovery of possession was sought not from respondents No.4&5 but from respondents No.1 to 3 and their mother Bhagwati and it was against respondents no.1 to 3 and their mother that the appellant/plaintiff was required to prove prior possession. For proving such prior possession against respondents No.1 to 3, admission of the respondents no.4&5, in their written statement or in the Agreement to Sell or in their CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 29 of 35 evidence, could not be relied by the appellant/plaintiff. The respondents No.4&5 were not contesting the claim of appellant/plaintiff and rather filed a written statement admitting the material pleas in the plaint. A plaintiff, to prove case against defendant, cannot rely upon admission of another defendant who is not in contest with the plaintiff.
(M) The appellant/plaintiff was thus required to prove prior possession by some independent evidence.
(N) The counsel for the appellant/plaintiff, on enquiry, admits that save for the recital in the Agreement to Sell of being delivered possession, there is no other evidence led by the appellant/plaintiff of being in possession of the property, to be able to sue for recovery of possession thereof on the basis of prior possession."
So, as per the said judgment, the plaintiff, under Section 5, had a choice to sue either on the basis of prior possession or on the basis of title and in the present case, plaintiff has filed the suit on the basis of title.
But, even if we presume otherwise that plaintiff has sought relief of possession on the basis of possessory rights/prior possession, the plaintiff has failed to prove the possession by way of any document; also, he has failed to prove that he is in possession of the suit property by adverse possession, if any. If the plaintiff or father of the plaintiff were in possession of the suit property at the time of filing of the suit, they could have easily filed the current electricity, water bills etc., but they have failed to file any such documents. The electricity bills filed by plaintiff are very old and does not depict the premises for which bills pertains to. Besides, to seek relief of possession on basis of prior possession, plaintiff has first to CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 30 of 35 prove her prior possession and the fact that she was dispossessed, which is not the case here. It is the case of plaintiff that she has been claiming the possession of suit property on the basis of title and title documents in her favour. Also, plaintiff has claiming the possession of house bearing No. 902-E, and as per defendant he is not in possession of 902-E, but 900-E, which fact could not be disproved by plaintiff. Even otherwise, the plaintiff and her father has admitted that Khasra No. 148 has already been vested in Gram Sabha, then father of the plaintiff was not having any right to transfer the suit property further or even possession of property of Gram Sabha cannot be given to other person.
23. Now, it has also been argued by the counsel of plaintiff that, even if he has failed to prove the title or ownership, plaintiff is only required to establish a better right to remain in possession of the suit property and not required to establish title and has relied upon the judgment of Hon,ble High Court of Delhi, for e.g. Shri Ramesh Chand v Suresh Chand, RFA 358/2000, Saleem v Wahid Malik RSA 118/2022, Bishan Chand v Ved Prakash, RSA 131/2018 and Smt. Urmila Devi v Sh. Vinod Kumar , CS (OS) 438/2017.
The judgments relied upon by the plaintiff are distinguishable and inapplicable on the facts of the present case. In the present case, the declaration and possession has been sought on the basis of title documents and is not a suit for possession simpliciter or a suit for injunction. Also, the contention of plaintiff is that he is entitled to relief having a better entitlement/right to the possession to the property than qua the defendants, as held in Shri Ramesh Chand v Suresh Chand, RFA 358/2000 , is CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 31 of 35 misplaced as in the said judgment court has relied upon Section 202 of Contract Act and will in favour of plaintiff to give relief on the basis of better title, but in the present case, father of plaintiff is still alive so no right can be claimed on the basis of this will. Also, in the present case, declaration of ownership is being sought also, apart from possession. Also, the title of Om Prakash, father of plaintiff is disputed and not established in the present case. Also, another argument that judgment of Suraj Lamp (Supra) is not applicable to the documents executed before 2001, is baseless as same has been clarified in the said judgment itself that the judgment does not lay down any new law or principle and is not path- breaking and merely reiterates the well settled legal position as always understood in the past as well. Therefore plaintiff has failed to prove that he is entitled to relief of declaration and possession on the basis of title documents. Hon'ble Supreme Court in Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma And Others, Civil Appeal No. 878 OF 2009 has held that a person in possession in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendants have not been able to fully establish their right, title and interest in the property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.
Plaintiff has also argued that defendant has also failed to prove CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 32 of 35 that he has any right over the suit property or over the premises 900-E and 893-E as he has not filed any document to prove either title or possession over it. Also, defendant No.1/DW-1 has stated in his cross examination that he has no concern over the property bearing No. 902-E and he is not concerned if any order of eviction is passed in respect of the property bearing No. 902 E. It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case independently, and cannot be allowed to take advantage of weakness in case of adversary. Therefore, plaintiff can't take the benefit of weakness in case of defendant. Hon'ble Supreme Court in Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Ors. (2019) 6 SCC 82, succinctly summarized the law on burden of proof in suits for declaration of title as follows:
"44. In the suit for declaration for title and possession, the Plaintiffs/Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs- Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs- Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title."CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 33 of 35
In view of the above-mentioned discussion, Issue No. 1 and Issue No. 2 are decided against the plaintiff and in favour of the defendants.
24. Issue No. 3 & Issue No. 4iii) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP
iv) Whether the plaintiff is entitled for decree of damages and mesne profits, as prayed for? OPP The burden of proving both the issues is on the plaintiff. Since plaintiff has failed to prove his right of being declared as owner of suit property and also relief of possession on basis of title, then the relief of injunction and decree of damages and mesne profit being consequential reliefs of main relief of declaration and possession, cannot be granted to plaintiff. Hence plaintiff has failed to prove that she is entitled to decree of permanent injunction and recovery of damages/mesne profit from defendants.
In view of the above-mentioned discussion, Issue No. 3 and Issue No. 4 are decided against the plaintiff and in favour of the defendants.
RELIEF
25. In view of the above discussion, the suit of the plaintiff is hereby dismissed.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 34 of 35No order as to cost.
Decree-sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open ( Ajeet Narayan ) court today on 31.05.2024. Civil Judge -02 (Central), Tis Hazari Courts, Delhi.
CS No. 93933/16 Rekha Vs. Dhir Singh & Ors. Page 35 of 35