Delhi District Court
Sh. Shankar Singh vs Smt. Rajni Dagar on 30 October, 2017
New CS No. 535745/16
(old CS No.1003/09)
IN THE COURT OF MS. VANDANA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI.
________________________________________________________________________________
1. SH. SHANKAR SINGH
S/o Sh. Rattan Singh
2. SMT. OM WATI
W/o Sh. Shankar Singh
Both Residents of
Plot No. 226-227,
Out of Khasra No. 180-181,
Bhagat Singh Park Within
The Area of Village Siraspur,
Delhi-110042.
........... Plaintiffs
Through
Sh. Avdesh Kumar
Advocate.
VERSUS
1. SMT. RAJNI DAGAR
W/o Sh. Ramesh Dagar
2. SH. RAMESH DAGAR
S/o Not known
Both Residents of :
House No. 259, Gali No. 13,
Nathu Colony, Nathupura,
Burari, Delhi-110084.
........... Defendants
Through
Sh. R.K. Jain
Advocate
(CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 1/13
New CS No. 535745/16
(old CS No.1003/09)
JUDGMENT
1. New No. : 535745-16
2. Under Section : Cancellation of Rent Deed
3. Date of Institution: 14/12/2009
4. Date of Final Order: 30/10/2017
5. Final Order : Dismissed
BRIEF FACTS
1. The brief facts of the plaint are as under:-
1.1 The plaintiff No. 1 had purchased plot bearing Nos. 226, 227
measuring 300 sq. yards out of Khasra No. 180, 181 in Abadi known as Bhagat Singh Park in area of village Siraspur, Delhi-42(hereinafter referred to as "Suit property") vide legally executed documents dated 20.12.2001 from one Smt. Lajja Wati W/o Sh. Mangal Singh R/o E-11, Bhagat Singh Park, Siraspur, Delhi for a consideration of Rs.2,10,000/-. The possession of the said plot was immediately taken over by the plaintiffs. The plot was semi constructed when the same was purchased in his name by plaintiff No. 1. After some time plaintiff No. 1 transferred the same in the name of plaintiff No. 2 vide registered GPA, Agreement to sell, Registered Will and cash receipt dated 18.11.2002 before the Sub Registrar.
1.2 It is further averred that the plaintiffs got constructed three rooms, latrine, bathroom, kitchen and one shop over the said plot. Plaintiffs alongwith his five sons and one daughter are living jointly in the said house from the date of purchase and they are in peaceful possession of the suit property. Plaintiffs (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 2/13 New CS No. 535745/16 (old CS No.1003/09) have ration card, election I card and electricity connection in their name at the address of suit property.
1.3 It is further averred that during the month of January, 2006, plaintiff No. 2 was going to the office of Food and Civil Supply department and was carrying the original documents of the suit property in bag and the said bag got lost. He immediately reported the matter to the police station Samai Pur Badli vide report dated 19.01.2006.
1.4 It is further stated that one of the relatives of the defendants Sh. Mahavir Singh is the neighbour of the plaintiffs and the defendants used to visit the house of said Mahavir Singh frequently and therefore were known to the plaintiffs and his family. Plaintiff No. 1 informed the defendant No. 2 about the missing of the title documents of his property and sought his help in tracing the original documents of the said house. The said defendant promised to help the plaintiffs in the matter, accordingly got the photo copies of the documents of the plaintiffs. After getting the photo copies of the documents of the property of the plaintiffs, both the defendants started regularly visiting the house of the plaintiffs. The defendants got prepared a site plan of the property of the plaintiffs in the last week of October, 2009 in the guise of getting the original documents prepared.
1.5 It has been further averred that the plaintiffs were shocked to know that the defendant No. 2 in collusion with defendant No. 1 had filed a civil suit (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 3/13 New CS No. 535745/16 (old CS No.1003/09) for recovery of possession and Mesne Profit of Rs.25,000/- against the plaintiff No. 1. Plaintiff No. 1 got the summons of the suit bearing suit No. S-428/09 titled as "Rajni Dagar Vs. Shankar Singh" for appearing before the Court on 12.11.2009. Plaintiff No. 1 put his appearance. The said frivolous suit was filed by defendant No.1 for the relief of recovery of possession and mesne profit claiming herself to be the owner of the property of the plaintiffs. Therein the defendants filed the alleged Rent Deed 24.03.2009, rent receipts dated 01.04.2009 and 15.05.2009 for Rs.5,000/- each alongwith some other frivolous documents including legal notice dated 10.08.09 and 29.08.2009. Further, it has been alleged that the defendants have forged the signatures of the plaintiff No. 1 on the said documents in order to grab the valuable property of the plaintiffs. The defendants are using the said documents as title documents of ownership of the property of the plaintiffs. Plaintiffs have already filed a criminal complaint against the defendants for registration of criminal case u/s 420/468/471/506(II)34 IPC and the same is also pending adjudication. Hence, the plaintiffs have filed the present suit seeking the relief of cancellation of the rent deed dated 24/03/09, receipts dated 01/04/09 and 15/05/09 .
WRITTEN STATEMENT
2. Written statement was filed by defendant No. 1 and 2 wherein the defendants have taken preliminary objection qua joining of unnecessary party ie defendant no. 2. Further plea was raised regarding section 10 of CPC but now that is not relevant as connected matter filed by the defendant herein (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 4/13 New CS No. 535745/16 (old CS No.1003/09) against the plaintiff herein has already been dismissed. Apart from the above it was also stated that as on date plaintiff has no right in the property, hence he has no right to lay any claim with regard to the property in question. The suit is even otherwise barred and is not maintainable under the provisions of Section 34 of the Specific Relief Act. The averments made in the plaint were denied in toto.
3. No replication was not filed by the plaintiffs.
FRAMING OF ISSUES
4. Vide order dated 07.07.2012 following Issues were framed by the predecessor of this court:-
1. Whether the plaintiff is entitled for the cancellation of documents i.e. rent deed, as prayed for? OPP
2. Whether the plaintiff is entitled for the declaration decree declaring the rent deed, as prayed for? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP
4. Relief.
PLAINTIFF'S EVIDENCE
5. Plaintiff got examined himself as PW-1 and tendered his evidence vide (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 5/13 New CS No. 535745/16 (old CS No.1003/09) affidavit Ex. PW1/A. He relied upon the following documents: -
A. Copy of sale deed is Mark A.
B. Copy of receipt is Mark B
C. Copy of agreement to sell, affidavit,Will collectively is Mark C
D. Copy of agreement to sell, affidavit, Will collectively is Mark D
E. Ex. PW-1/5 is certified copy of document
F. copy of election identity card and ration card is Ex. PW1/10 and Ex.
PW1/11(OSR)
F. Copies of electricity bills are Ex. PW1/12 to Ex. PW1/15(OSR)
G. Copy of police report is Ex. PW1/16(OSR)
H. certified copy of rent deed is Ex.PW1/16A
I. Certified copy of receipts are Ex. PW1/18 and Ex.PW1/19.
This witness was duly cross-examined by Ld. Counsel for defendants. 5.1 PW-2 Smt. Omwati tendered her evidence by way of affidavit Ex. PW2/A. She was duly cross-examined by Ld. Counsel for defendants. 5.2 PW-3 Bharat Bhushan, Assistant Ahlmad from the Court of Sh. Sanjay Jindal, Ld. ADJ, brought the case file of suit No. 428/09 titled as Rajni Dagar Vs. Shankar Singh. He produced the documents i.e. the copy of judgement Ex. PW3/1, FSL report dated 15.09.2015 is Ex. as Ex. PW3/2, FSL report dated 29.05.2015 is Exhibited as Ex. PW3/3, statement of Hemant Bhatia (DW-5) record incharge of 12.02.2015, office of Sub-registrar-1, Kashmere Gate, Delhi is Exhibited as Ex. PW3/4, statement of Dr. Jiju P.V. Senior Scientific Officer (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 6/13 New CS No. 535745/16 (old CS No.1003/09) (document) FSL, Rohini, Delhi of dated 06.08.2015 and 20.10.2015 alongwith cross-examination is Exhibited as Ex. PW3/5.
5.3 This witness was duly cross-examined. Thereafter, PE was closed by the plaintiffs.
DEFENDANT'S EVIDENCE
6. In support of their case, defendant examined two witnesses. 6.1 DW-1 Smt. Rajni Dagar i.e. defendant No. 1 herself, tendered her evidence by way of affidavit Ex. D-1. DW-2 Sh. Ramesh Dagar tendered his evidence by way of affidavit Ex. D-2. Both the witnesses were also duly cross- examined by Ld. Counsel for plaintiff. Thereafter, DE was closed.
7. Before making my observations and findings on issues, I shall discuss some important part of proceedings of this case.
(a) An application under order 6 rule 17 CPC was filed by the plaintiff which was dismissed vide order dated 16/09/10.
(b) Again one more application was filed by the plaintiff under order 6 rule 17 CPC which was allowed vide order dated 07/05/11 and accordingly he was allowed to amend the plaint vide which the plaintiffs wanted to incorporate the relief of declaration thereby declaring the rent deed and receipts in question as null and void as (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 7/13 New CS No. 535745/16 (old CS No.1003/09) well as for the relief of permanent injunction to restrain the defendant from creating any third party interest in the suit property.
(c) As the plaintiff did not comply the provision of order 6 rule 18 CPC, the amended plaint filed by the plaintiffs was struck off. The relevant portion of the said order dated 22/12/11 is as under:
"Therefore it is considered and I am of the opinion that the plaintiff has not filed the amended plaint in consonance of order dated 07/05/11 and has mentioned certain additional facts which were beyond the scope of his application under order 6 rule 17 CPC , thus , requirement of order 6 rule 18 CPC has not been done by the plaintiff as per law. Therefore, the application filed by the defendant is allowed and the amended plaint filed by the plaintiff subsequent to 07/05/11 cannot be taken on record and it is directed that as the plaintiff has not complied with the directions of order 6 rule 18 CPC, therefore the amended plaint filed subsequent to 07/05/11 is struck off the record. The order dated 07/05/11, therefore, is recalled accordingly and, as plaintiff has not complied the directions as mentioned in the said order dated 07/05/11 the original plaint filed shall be read into evidence and the original plaint filed shall be considered as per law."
(d) Thereafter one review application under order 41 rule 1 r/w 151 CPC was filed by the plaintiff against the abovesaid order but vide order dated 02/05/12 it was dismissed.
8. Now if we look at the issues, undoubtedly issues no. 2 and 3 were framed inadvertently on the basis of the amended (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 8/13 New CS No. 535745/16 (old CS No.1003/09) plaint(already struck off) as in the original plaint, no relief regarding declaration or injunction was sought by the plaintiff.
9. It is pertinent to mention here that during the plaintiff evidence also, on 04/02/14, again an application under order 6 rule 17 was moved by the plaintiff but the same was dismissed.
10. Hence, in view of the above, there is only one issue based on the relief sought in the original plaint, which is to be considered is:
Whether the plaintiff is entitled for the cancellation of documents ie rent deed, as prayed for? OPP
11. Section 31 of Specific Relief act lays down the provision for cancellation of instrument. It explains when the court may order the cancellation of an instrument.
(i) any person against whom a written instrument is void or voidable ; and
(ii) who has reasonable apprehension that such instrument if left outstanding may cause him serious injury ;
(iii) he may sue to have the instrument adjudged by the Court as void or voidable
(iv) the court in such a suit may, in its discretion adjudged the instrument as void or voidable, and order it to be delivered up and cancelled.
12. So, three conditions must exist before one invokes section 31 of Specific Relief Act which are:(a) the written instrument is void or voidable against such person (b) he may have a reasonable apprehension that such (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 9/13 New CS No. 535745/16 (old CS No.1003/09) instrument is left outstanding may cause him serious injury. (c) court must adjudicate the instrument as void or voidable.
13. The question whether an instrument can be said to be void or voidable against a person claiming relief under the aforesaid provision was considered by a full bench of Madras High Court. In case of Muppudathi Pillai Vs. Krishana Swami Pillai AIR 1960 Mad 1 (FB) at p 4 it was observed "It stands to reason that the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasizes that principle. For there can be no apprehension if a mere third party, asserting a hostile title creates a document. Thus relief under section 39 (replaced by section 31 of Specific Relief Act, 1965) would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title".
Difference between suit for cancellation of an instrument and for a suit for declaration thereby declaring any document null and void.
14. There is a difference between suit for cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff. It was observed by the hon'ble Supreme court in 1996 (7) SCC 766 Md. Noorul Hoda Vs. Bibi Raitunnisa & Ors. "When the plaintiff seeks to establish a title in himself and can not establish a title without removing an insurmountable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get the decree or deed (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 10/13 New CS No. 535745/16 (old CS No.1003/09) cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by decree or the transaction between third parties, he is not in position to get that decree or deed cancelled in toto. The proper remedy in such case is to get a declaration that the decree or deed is invalid so far as he himself is concerned and therefore he may sue for a declaration to that effect and not for the cancellation of the decree or a deed"
15. Now question arises as to whether suit for cancellation is maintainable in all cases.
In Iyyappa Vs. Ramalaxmma 13 ILR 549 (Madras) (DB), The Madras devision bench laid down that a suit for cancellation of an instrument will be maintainable only by the person who executed the document. In that case the suit was brought alleging that the defendant forged the sale deed in the name of the plaintiff as executed and alternatively if it was in fact executed by the plaintiff the execution had been obtained by fraud and no consideration had passed upon him. The court held that if the plaintiff did not execute the document and it was forgery, the suit for cancellation is not maintainable and if sale consideration was not paid, the action should be for payment of money and not for cancellation of the documents.
The Madras High Court in AIR 1960 Mad 1 observed that "when the instrument / document, not executed by the plaintiff, the same does not create a cloud upon the title of the true owner, nor does it create apprehension (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 11/13 New CS No. 535745/16 (old CS No.1003/09) that it may be a source of danger. Accordingly the suit for cancellation of instrument by a person who did not execute the document would not lie. When the document itself is not executed by the plaintiff there is no necessity to have the document cancelled by a court decree for it has no effect on the title of true owner".
The law, therefore may be taken as well settled that in all cases of void or voidable transaction a suit for cancellation is not maintainable.
16. Now coming back to the facts of the present case, the PW-1 has categorically stated that he has not executed the alleged documents. Both PWs have deposed that PW-1 and PW-2 that they have not seen the documents Ex PW1/-16A, Ex PW-1/18 and Ex PW-1/19 before filing the present suit. Now when the plaintiff no. 2 has denied his signatures on the alleged documents, it means that he is not the executant of the alleged documents which is pre-requisite for the application of Section 31 of Specific Relief Act. Accordingly, it is held that the suit for cancellation does not lie in the present facts and circumstances and plaintiff ought to have filed the suit for declaration for getting the alleged documents null and void.
17. It is also pertinent to mention here that it has been asserted in the plaint that plaintiff no. 1 is the owner of the suit property and by way of present suit plaintiffs are praying that the alleged rent deed and receipt which allegedly bears the signatures of plaintiff no. 2 be cancelled though admittedly he has never executed the said document. I am fail to understand as to how the alleged documents i.e. rent deed and rent receipts which has been said to be (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 12/13 New CS No. 535745/16 (old CS No.1003/09) never executed by plaintiff no. 2 can cause him serious injury when he has specifically stated that his wife i.e. plaintiff no. 1 is the owner of the suit property.
18. Further, admittedly the plaintiff no. 1 has not signed the plaint which is the mandatory requirement under order 6 rule 14 CPC which lays down that "every pleading shall be signed by the party and his pleader provided that where a party pleading is, by reason of absence or for other goods cause is unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf". In the case in hand, the plaintiff no. 1 namely Smt. Rajni Dagar has neither signed her plaint nor filed any supporting affidavit. She has nowhere assigned any reason / cause for not signing the pleading.
19. In view of my above said findings the suit of the plaintiff is dismissed.
20. No order as to costs.
21. Decree sheet be prepared accordingly.
22. File be consigned to record room after due compliance. Announced in the Open Court on 30.10.2017 (VANDANA) SCJ-cum-RC (North) Rohini Courts, Delhi/30.10.2017 (CS No. 535745-16) Sh. Shankar Singh Vs. Smt. Rajni Dagar Page No. 13/13