Delhi District Court
Shri Banarsi Dass vs Sh. Atin Singhal on 31 January, 2022
IN THE COURT OF NEHA GARG,
CIVIL JUDGE-01, CENTRAL DISTRICT, DELHI
CS SCJ No. 95697/2016
CNR No. DLCT03-000484-2011
Shri Banarsi Dass
S/o Shri Sultan Singh,
R/o House No.925/5,
Gali Nai Basti,
Bazar Sita Ram,
Delhi-110006. ....Defendant/Counter Claimant
Versus
Sh. Atin Singhal
S/o Sh. Shri Gopal Gupta
R/o House No. C-2/228,
Janakpuri,
New Delhi-110058. .....Plaintiff/Non Claimant.
Date of institution of suit : 02.07.2011
Date on which judgment was reserved : 17.01.2022
Date of pronouncement of Judgment : 03.01.2022
COUNTER CLAIM
Shri Atin Singhal Suit No.598163/16/11 Page 1 of 29
JUDGMENT
1. The present counter claim was filed on behalf of defendant on 02.07.2011 which was registered separately vide the order of the Ld. Predecessor of the Court dated 23.04.2012. It is stated in the plaint that the counter claimant was the lawful owner of the entire suit property bearing Municipal No. 925, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006 (hereinafter referred to as the 'suit property'). That earlier the counter claimant/defendant had let out three portions marked 'A', 'B', 'C' ( show site plan filed along with the counter claim) to the father of the plaintiff for commercial purposes by virtue of the Rent Agreement dated 07.08.2009, having separate independent approach from the adjacent Gali. That the said tenanted portions had nothing to do with the internal portions of the building (shown in Yellow colour in the site plan) which have been used for residential purpose only. That in January, 2011, the defendant agreed to sell the aforesaid three portions marked A, B and C to the plaintiff's father having separate and independent approach from the Gali. That since the plaintiff's father wanted some more space to construct a W/C cum bathroom, he requested the defendant to also sell the adjacent kothri marked 'D' (in which a hand-pump was installed). That upon his request, the defendant also agreed to sell the said kothri/small room to the plaintiff/his father with the understanding that a gate at point G would be broken opened from the said small room/kothri in which he would construct his bathroom/WC. That further, the gate/opening of the said kothri opening towards the internal portion/courtyard of the defendant would be closed along with two other gates/opening of the hall by erecting Shri Atin Singhal Suit No.598163/16/11 Page 2 of 29 a brick-wall. That it was undertaken by the plaintiff and his father that they will close the said three openings X Y Z by constructing a brick-wall therein thereby separating their red portion from the defendant's portion, shown in Yellow Colour. That in order to show the plaintiff's portion and defendant's portion separately, a proposed wall was also drawn in yellow colour on the Map registered with the sale deed dated 07.02.2011, which was defined as "common wall" which is evident from the perusal of the Map registered with the said Sale Deed. That the draft of the Sale Deed as well as the Map to be registered therewith was prepared by the plaintiff and his father from their own Deed Writer namely Sh. Pradeep Kumar Verma. That though the counter claimant/defendant had once visited the office of said Deed Writer along with the plaintiff's father to make discussion with the Deed Writer but thereafter the final draft was got prepared and final Sale Deed as well as Map were got prepared by the plaintiff and his father by their own repeated visits to the office of the Deed Writer in the absence of the counter claimant/defendant. That the counter claimant who is an illiterate person and does not know English language (reading or writing) was not able to understand what was got mentioned in the Sale Deed. That taking undue advantage of defendant's illiteracy, the plaintiff and his father got mis-described the defendant's own portion by showing them as 'common portion'. That the defendant did not suspect the said misdeeds and manipulations of the plaintiff and his father as parties had developed cordial relations due to tenancy created in the name of the plaintiff's father, as referred above. That the portions shown in Yellow colour in the site plan filed along with the plaint, are not the common portions as falsely claimed Shri Atin Singhal Suit No.598163/16/11 Page 3 of 29 by the plaintiff. That on the contrary, these portions are the exclusive portions of the defendant so much so the defendant had sold out the only red portions to the plaintiff with the understanding that the same shall have independent access through the Gali only as per the earlier arrangement and henceforth all the three gates/doors of the plaintiff's portion (opening towards the site of the defendant's yellow portion) marked X Y Z shall be closed by erecting brick walls which was undertaken by the plaintiff to be done within 15 days therefrom, but subsequently he did not honour his commitment so far and is bent upon to grab the defendant's portion by claiming the same to be common, which is not true even to his personal knowledge. That the plaintiff is in possession of the original Sale Deed dated 07.02.2011 as well as the original Map registered therewith, but he has been avoiding to produce the same before the Hon'ble Court. That on the contrary, he has filed the photocopy of the said Sale Deed as well as the Map registered therewith but in the said Map, no colour has been made to define the separate portions of the plaintiff and the defendant. That in order to mislead the Hon'ble Court, the plaintiff instead of producing the said document/Map showing the colours shown therein has got filed another site plan, which he has prepared just for the purpose of filing the main suit in which the portions of the parties are not correctly shown. That the plaintiff intends to grab the defendant's portion and with this motive, he has wrongly shown the defendant's portion as "common portion" in Yellow colour in the site plan filed by the plaintiff. That the portions shown in Yellow colour were not the subject matter of sale transactions and that is why the three openings Mark X Y Z (opening towards defendant's portion), were to be Shri Atin Singhal Suit No.598163/16/11 Page 4 of 29 closed by brick-wall which was undertaken by the plaintiff to do at his own cost, within 15 days of the Sale Deed. That subsequently, after execution of Sale Deed, he turned dishonest and did not do so. That when the defendant insisted upon the plaintiff and his father to close the three openings marked X Y Z and also to break open the Gate at point 'G' (in between Kothri and the Hall of the plaintiff), he started quarreling with the defendant and filed the main suit. That the defendant is an illiterate person and had no opportunity to read or understand the contents of the Sale Deed dated 07.02.2011, therefore, he was not aware about the conspiracy and manipulations hatched by the plaintiff and his father in collusion with the Deed Writer which came to his knowledge only when he received the summons/notice of the main suit and contacted his Advocate. That under a pre-planned conspiracy and manipulation, the plaintiff and his father got mis-described the defendant's internal portions as "common portion", knowingly well that the same are not the common portion but are the exclusive and independent portion of the defendant. That plaintiff, his father etc. had never used or had any access to the defendant's portion shown in Yellow colour at any point of time except that the plaintiff was permitted to use the access through the gate marked Y to the gate of the Kothri Marked Z, which was only a temporary arrangement for 15 days enabling the plaintiff to close the said three doors by brick-wall and break opened his own entry gate for his kothri at point 'G'. That now the plaintiff intends to take undue advantage of his own wrongs and manipulation, which cannot be allowed to be sustained. Therefore, it is prayed that the defendant be declared lawful and exclusive owner in respect of the Shri Atin Singhal Suit No.598163/16/11 Page 5 of 29 undisputed portions shown in Yellow colour including the main gate/entrance of the building, W/C, courtyard etc. and the said portions are not the common portions; and the insertions made in the Sale Deed contrary to this effect mentioned at page no.4 and 5 (or at any other page) be ordered to be struck off and be held non-operative and ineffective for all intent and purposes. That consequently a Deed of Rectification be directed to be executed by the parties with consequential modifications so that the clouds cast upon the rights of the defendant be cleared and removed against contingencies/dispute in future. Further, the intervening wall (to be erected by closing three gates) and shown in Yellow colour in the Map registered with the Sale Deed dated 07.12.2011 be declared to be the common wall as duly mentioned in the registered Map and further it be also directed that the plaintiff/his father has no right, title or concern with the main entrance of the building, WC, stairs or courtyard or any other portion owned by the defendant portion shown in Yellow colour. That it is prayed that the plaintiff be directed to close the doors/openings with brick walls at points Marked X Y Z in the site plan and the said wall shown in Yellow colour. Alternatively, the defendant be allowed to permanently close the three gates/opening marked X Y Z in the site plan by erecting the brick-wall therein thereby completely separating the defendant exclusive portions from the sold out portions (shown in Red colour) owned by the plaintiff.
2. Reply/Written statement was filed by the respondent/plaintiff to counter claim of the counter claimant/defendant and it is submitted therein that the counter claim filed by the defendant/counter claimant is without Shri Atin Singhal Suit No.598163/16/11 Page 6 of 29 any cause of action and is liable to be dismissed under Order VII Rule 11 CPC. That the counter claim is not maintainable as the same is based on wrong and incorrect facts and has been filed by the defendant/counter claimant as a counter blast to the suit of the plaintiff with the malafide intentions to defeat the rights of the plaintiff given in registered Sale Deed dated 07.02.2011. That the counter claim of the defendant/counter claimant seeking declaration as prayed in the counter claim is not maintainable as the defendant had got prepared the sale deed by his own Deed Writer and as such the defendant/counter claimant is estopped from denying the contents of the Sale Deed. It is submitted that the counter claim has not been properly valued as per law and requisite court has also not been paid. It is further submitted that the counter claimant has concealed the material facts from the Hon'ble Court.
3. In the reply on merits it is not denied to the extent that the defendant/counter claimant was the owner of the suit property. It is further not denied that the suit property was let out by the counter claimant to the father of the plaintiff for commercial purposes. However, it is denied that the approach to the suit property was from the adjacent Gali and the tenanted portions of the building has nothing to do with the internal portions of the building. It is further wrong and denied that the internal portions of the suit premises are used for residential purposes only.
4. On completion of pleadings, following issues were framed in the main suit by Ld. Predecessor of the Court on 08.06.2012:-
Shri Atin Singhal Suit No.598163/16/11 Page 7 of 291. Whether the claimant is entitled to decree of declaration declaring the claimant to be the exclusive owner of the disputed portion as prayed? (OPP)
2. Whether the claimant is entitled to decree of mandatory injunction directing the non-claimant to execute Rectification Deed in respect of sale deed executed in favour of the non-claimant as prayed? (OPP)
3. Whether the claimant is entitled to decree of mandatory injunction directing the non-claimant to close the doors/openings as is prayed? (OPP)
4. Whether the claimant is entitled to decree of permanent injunction restraining the non-claimant from interfering in the peaceful use and possession of the disputed portion as shown in Yellow colour in site plan? (OPP)
5. Whether the counter-claim is liable to be rejected under Order 7 Rule 11 CPC? (OPD)
6. Whether the claimant is estopped from denying the contents of the sale deed? (OPD)
7. Relief
5. Record shows that vide order dated 09.05.2017 on the request of counter claimant, it was directed by Ld. Predecessor of this Court that evidence recorded in main suit shall be read in counter claim also. Separate statement of Ld. Counsel for counter claimant was also recorded in this regard vide the said date and the evidence recorded in the main suit was directed to be clubbed in the counter claim.
Thereafter again on 10.01.2019 separate statements were made on behalf of parties for clubbing the whole evidence of main suit file in counter claim.
After framing of issues, the case was fixed for plaintiff/non claimant Shri Atin Singhal Suit No.598163/16/11 Page 8 of 29 evidence.
Evidence:-
6. In order to prove his case, the non-claimant/plaintiff examined himself as PW-1 by filing an Affidavit in evidence Ex.PW1/A. Plaintiff/non claimant relied upon the following documents i.e., Original Sale Deed Ex.PW1/1, Original Site plan annexed with the Sale Deed Ex.PW1/2, copy of items published in the newspaper published on 01.02.2011 Mark A, copy of newspaper published on 07.02.2011 Mark B, Site plan annexed with the plaint Ex.PW1/5, photographs Ex.PW1/6 to Ex.PW1/10.
7. Non claimant/Plaintiff also examined Sh. Daulat Ram Kashyap, S/o late Sh. R. S. Kashyap, UDC from the Office of Sub Registrar III, Asaf Ali Road, Delhi as PW-2. Plaintiff also relied upon the following documents exhibited by the said witness i.e., copy of Sale Deed Ex.PW2/1 and coloured site plan annexed with the Sale Deed Ex.PW2/2.
These witnesses were duly examined, cross-examined and discharged.
8. Thereafter non claimant/plaintiff's evidence was closed and the matter was fixed for counter claimant/defendant's evidence.
9. The counter claimant/defendant examined himself as DW1 by filing the Affidavit in evidence Ex.DW1/A. Counter claimant/Defendant relied upon Disputed Sale deed dated 07.02.2011 Ex.DW1/1, registered Map Shri Atin Singhal Suit No.598163/16/11 Page 9 of 29 Ex.DW1/2, photographs Ex.DW1/3, Ex.DW1/4 and the photographer's receipt in respect of the developing charges paid as Ex.DW1/5 and site plan Ex.DW1/6. He also examined Sh. Vinod Kumar as DW2. Defence witnesses were duly examined, cross-examined and discharged.
10. Thereafter, counter claimant/defendant's evidence was closed and the matter was fixed for final arguments.
11. Final Arguments were heard at length and the record as well as the Written submissions filed on behalf of the parties were carefully perused by this court. For the purpose of clarity, the claimant hereinafter shall be referred to as defendant and the non-claimant shall be referred to as the plaintiff.
Considering the nature of issues involved in the present matter, issue no.2 shall be taken up before the other issues.
ISSUE WISE FINDINGS:-
ISSUE NO.2: Whether the claimant is entitled to decree of mandatory injunction directing the non-claimant to execute Rectification Deed in respect of sale deed executed in favour of the non-claimant as prayed? (OPP)
12. The burden to prove the present issue is cast on the defendant. It is the case of the defendant that he had sold portions marked A, B, C and D in site plan Ex.DW1/6 to the plaintiff with the understanding that a gate at Shri Atin Singhal Suit No.598163/16/11 Page 10 of 29 point G marked in site plan Ex.DW1/6 would be broken open from the room/kothri marked D in site plan Ex.DW1/6, in which plaintiff would construct the bathroom/W.C. Furthermore, the gate/opening of the said kothri opening towards the internal portion/courtyard of the defendant would be closed along with the other two gates/opening of the hall by erecting a brick-wall. That in order to show the portion of the plaintiff and defendant separately, a proposed wall was also drawn in Yellow Colour on the Map registered with the Sale Deed dated 07.02.2011, which has been defined as the 'common wall' as is evident from the site plan Ex.PW1/2. That the draft of the Sale Deed as well as the Map to be registered with it was prepared by the plaintiff and his father from their own Deed Writer Sh. Pradeep Kumar Verma. That though the defendant has once visited the office of the said Deed Writer along with the plaintiff's father to have a discussion with the Deed Writer, but thereafter, the final draft was got prepared and the final Sale Deed as well as Map were got prepared by the plaintiff and his father by their own repeated visits to the office of the Deed Writer.
13. Defendant has averred that he is an illiterate person and does not know English language and did not understand what was got mentioned in the Sale Deed Ex.PW1/1. That taking undue advantage of the defendant's illiteracy, the plaintiff and his father got misdescribed the counter claimant's portion by showing them as 'common portion'. That a perusal of the site plan Ex.PW1/2 attached with the Sale Deed Ex.PW1/1 would show that the portions sold out to the plaintiff were shown in Red colour in the Shri Atin Singhal Suit No.598163/16/11 Page 11 of 29 said site plan, which have their separate and independent entry from the Gali directly. In order to separate the sold out portions and the remaining left portions of the defendant, a common wall was drawn in Yellow colour, which was undertaken to be constructed within 15 days from the date of the execution of the Sale Deed but instead of doing the needful, plaintiff has cooked up a false story alleging the site plan to be incorrect.
14. Defendant has sought rectification of the Sale Deed Ex.PW1/1 on the ground that the same has been induced by taking undue advantage of the defendant's illiteracy. Apposite it to mention Section 26 of the Specific Relief Act, 1963 (hereinafter referred to as 'the SRA') which provides that where through fraud or a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. Section 26 of the SRA reads as under:
"Section 26 : Rectification of Instruments:
When Instruments may be rectified (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then
(a) either party or his representative in interest may institute a suit to have the instrument rectified; or
(b) The plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified;Shri Atin Singhal Suit No.598163/16/11 Page 12 of 29
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under subsection (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. (3) A contract in writing may firstly be rectified and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced (4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall at any stage of the proceedings, allow him to amend the pleading on such terms as may be just for including such claim."
15. Thus, it is clear that Section 26 of the Act has a limited application. It is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else. It is not the case of the defendant that the rectification is sought on ground of mutual mistake. What has been pleaded by the defendant is taking undue advantage of the defendant's illiteracy, plaintiff and his father got misdescribed the counter claimant's portion by showing them as 'common portion'. In other words, Shri Atin Singhal Suit No.598163/16/11 Page 13 of 29 defendant is claiming that the Sale Deed Ex.PW1/1 be rectified as the same has been induced by fraud/deceit. Therefore, what has to be determined is whether defendant is entitled to rectification of the Sale Deed Ex.PW1/1 on ground of fraud.
16. Section 17 of the Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act') defines fraud as under:
17. 'Fraud' defined.--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to Shri Atin Singhal Suit No.598163/16/11 Page 14 of 29 speech.
17. Undue influence as defined in Section 16 of the Contract Act is said to be a subtle species of Fraud, whereby mastery is obtained over the mind of the victim by insidious approaches and seductive artifices. Section 16 of the Contract Act reads as under:
16. 'Undue influence' defined.--
(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a Shri Atin Singhal Suit No.598163/16/11 Page 15 of 29 position to dominate the will of the other. Nothing in the sub-
section shall affect the provisions of section 111 of the Indian Evidence Act, 1872
18. The first sub section defines undue influence as the use by one party to the contract of his dominant position for obtaining an unfair advantage over the other party. Mere relationship is not sufficient for a Court to assume that one party was in a position to dominate the will of the other. In Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath, AIR 1951 SC 280, while dealing with the issue, this Court held:
"....in cases of fraud, 'undue influence' and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion"
19. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65, reasoned that it is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point influence alone has been made out. Such influence may be used wisely, Shri Atin Singhal Suit No.598163/16/11 Page 16 of 29 judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'.
20. In Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC 163, this Court held:
"The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. Sub-section (3) of Section 16 contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves:
(a) that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and
(b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift."
21. Now coming to the merits of the present matter, defendant has averred that taking undue advantage of his innocence and illiteracy and keeping faith in the plaintiff and his father, they have betrayed the defendant and have wrongly mentioned the incorrect facts in the Sale Deed. The aforesaid averments made on part of the defendant are to be analyzed in the background of the relationship between the parties. It is an admitted Shri Atin Singhal Suit No.598163/16/11 Page 17 of 29 fact between the parties that before the execution of the Sale Deed dated 07.02.2011, father of the plaintiff was a tenant of the defendant in the suit property with respect to a portion marked as A, B and C in site plan Ex.DW1/6 since 2009. It is also an admitted fact between the parties that the Kothri marked D was included in the Sale Deed executed between the parties at the request of the plaintiff. It is in the background of these facts that Ld. Counsel for defendant has argued that no copy of the draft or final Sale Deed was provided to the defendant, who was having cordial relationship with the plaintiff and his father. That taking undue advantage of the situation, the plaintiff and his father misdescribed the defendant's portions as common portion, which was done in collusion with the Deed Writer.
22. As stated earlier, mere relationship is not sufficient for a Court to assume that one party was in a position to dominate the will of the other. Merely because the father of the plaintiff was a tenant of the defendant will not lead to raising of the presumption that the plaintiff was in a position to dominate the will of the defendant. Sub-section 2 of Section 16 of the Contract Act lays down a presumption that a person is deemed to be in a position to dominate the will of the other where he stands in a fiduciary relationship to the another. A fiduciary relationship arises between parties when one of them stands in a position of trust to the other, or in such a position that the latter naturally reposes confidence in him, a confidence such that an influence grows out of that confidence. In order to establish the existence of a fiduciary relationship, it is necessary to show that one Shri Atin Singhal Suit No.598163/16/11 Page 18 of 29 party relies on the other to such an extent that complete trust and confidence in the other enabling him to influence the other.
23. Merely because of the fact that father of the plaintiff was a tenant of the defendant since 2009 and the portion marked D in site plan Ex.DW1/6 was included in the Sale Deed Ex.PW1/1 at the request of the plaintiff, does not lead to the conclusion that a fiduciary relationship existed between the parties. Even if the sake of argument it is assumed that the defendant had trusted the plaintiff as the father of the plaintiff was his tenant since 2009, however, from the facts of the case it cannot be inferred that the sanctity of the trust existing between the parties was such that the plaintiff influenced the defendant so much so that the defendant was dissuaded from verifying/understanding the contents of the Sale Deed Ex.PW1/1. It is not the case of the defendant that at the time of execution of the Sale Deed Ex.PW1/1 he had requested the plaintiff to read over the contents of the Sale Deed to him in vernacular language and that the plaintiff with malafide intention did not read over the correct contents as mentioned in the Sale Deed. A person executing an instrument of Sale, creating rights and liabilities in favour of the other party is expected to execute the same after going through and understanding the contents of the same and the document so executed between the parties cannot be rectified later unless and until the party seeking rectification proves that through fraud or a mutual mistake of the parties, the instrument in writing does not express the real intention. It is not the case of defendant that when he executed the sale deed, he did not know that it is a sale deed that he was executing. When he Shri Atin Singhal Suit No.598163/16/11 Page 19 of 29 had executed the Sale Deed and site plan in question, it is not open to the defendant to claim that the Sale Deed Ex.PW1/1 executed between the parties is hit by fraud or undue influence, because according to the defendant having faith on the plaintiff and his father he hurriedly executed the Sale Deed in question without reading and understanding the contents of the same being an illiterate person did not understand what was got mentioned in the Sale Deed Ex.PW1/1. Mere illiteracy will not be sufficient to make a person likely to be dominated by another. In the guise of rectification, Court will not be justified in making a new contract between the parties.
24. At this stage, I shall also briefly aver to the contention of the Ld. Counsel for defendant that the site plan Ex.PW1/2 clearly shows a proposed wall in Yellow colour. It is pertinent to mention here that site plan is a document supporting the Sale Deed and is prepared for the purpose of identification of the property and the site plan has to be in conformity with the Sale Deed. Here execution of the Sale Deed Ex.PW1/1 and site plan Ex.PW1/2 is not denied by the defendant. A meticulous perusal of the site plan Ex.PW1/2 reveals that the same is indeed in conformity with the Sale Deed Ex.PW1/1 as the portion sold to the plaintiff has been clearly marked in Red colour. So far as the contention of the Ld. Counsel for defendant goes that it shows a proposed wall in Yellow colour goes, there is no infirmity in the site plan Ex.PW1/2 as it shows a 'common wall' having three doors/openings marked X Y and Z as shown in site plan Ex.DW1/6. The site plan Ex.PW1/2 does not talk about any 'proposed wall' but only Shri Atin Singhal Suit No.598163/16/11 Page 20 of 29 shows the current position of the property i.e., there being a common wall with three doors opening towards the courtyard.
25. Defendant has examined the property broker Sh. Vinod Sharma as DW-2, who had deposed in his affidavit of evidence Ex.DW1/B that the tenancy of the father of plaintiff was inducted through him vide Rent Agreement dated 07.08.2009 and that he has also signed as a witness to the said Rent Agreement. DW-2 has further deposed that the entry of the premises was provided through the adjacent street, which accordingly was used by the plaintiff and his father as such. That since beginning till date, plaintiff had been using the entry and exit to the suit premises through separate entrance provided through the street. That the plaintiff or anyone else was never allowed to use the main entrance of the building or the WC or courtyard etc. That in December 2010/January 2011, plaintiff had contacted him and told him that he was willing to purchase the three rooms on the ground floor. That that the request of the plaintiff, he has met defendant to negotiate the deal. That during talks, defendant has clearly told portions under sale shall have separate and independent entry from the street and further that plaintiff etc. shall have no concern with the other sold out portions. That it was also agreed that the doors opening towards the courtyards will also be permanently closed by erecting a wall and further that a new door will be opened at mark G (as shown in site plan Ex.DW1/6) so as to include the kothri with the other portions. That however the said deal could not be materialized due to difference in price Shri Atin Singhal Suit No.598163/16/11 Page 21 of 29 quoted by the parties and that he later came to know that parties have made the deal without informing him.
26. It is pertinent to mention that even if the testimony of DW-2 is considered per se, it only supports the case of the defendant to the extent that it shows what had been intention of the parties before the execution of the Sale Deed but there is no evidence on record to show that this intention of the parties remained unchanged up to the actual execution of the document on 07.02.2011. Even otherwise, defendant has failed to prove the essential ingredient of fraud/undue influence as contemplated under Section 26 of the SRA in order to be entitled to the relief of rectification of Sale Deed Ex.PW1/1.
27. In view of the aforesaid discussion, defendant has failed to discharge the burden to prove the present issue. Accordingly, the present issue is decided against the defendant.
Considering the nature of issue no. 3 and 4, the same shall be taken up together:
ISSUE NO.3: Whether the claimant is entitled to decree of mandatory injunction directing the non-claimant to close the doors/openings as is prayed? (OPP) ISSUE NO.4: Whether the claimant is entitled to decree of permanent injunction restraining the non-claimant from interfering in the peaceful use and possession of the disputed portion as shown in Yellow colour in Shri Atin Singhal Suit No.598163/16/11 Page 22 of 29 site plan? (OPP)
28. The burden to prove the present issue is on the defendant. For the determination of the aforesaid issue, one must aver to the contents of the Sale Deed Ex.PW1/1, excerpts from which reads as follows:
"That in consideration of the said amount, the Vendor doth hereby absolutely sell, convey, transfer and assign the above mentioned property under sale i.e., PORTION OF THE GROUND FLOOR, without roof/terrace rights, having its area 41.80 sq. mtrs. Approx., being part of the built-property bearing Mpl. No.925, situated at Ward No.VIII, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006 and bounded as mentioned above, more particularly shown in RED colour in the plan annexed hereto and common rights to use the main entrance and passage, alongwith the proportionate share of freehold land underneath, UNTO the Vendee with all his/her right, title ,interests easements, options, privileges and appurtenances thereto."
29. It is an admitted fact that there are three doors opening towards the Yellow portion marked in site plan Ex.PW1/5. Defendant has not denied that the main entrance of the suit property is at point T7 as shown in site plan Ex.PW1/5. Sale Deed Ex.PW1/1 provides for common rights to use the passage. Black's law Dictionary (tenth edition) defines passage as:
"2. A right, privilege, or permission to cross land or water; an easement to travel through another's property. 3.The process of Shri Atin Singhal Suit No.598163/16/11 Page 23 of 29 traveling, esp. in transit <safe passage>. 4. The act of coming and going <right of passage>.
A passage is an easement to travel over the land of the other. In the present matter, on the basis of the various site plans filed on record, the word passage in respect of the ground floor of the property constitutes the portion marked at T6 i.e., the courtyard marked at T6 in the site plan Ex.PW1/5. The said courtyard at the ground floor is accessible through the main gate as shown at point T7 and door marked 'X' in site plan Ex.PW1/5. Therefore, from a meaningful reading of the Sale Deed Ex.PW1/1 it emerges that parties have agreed that the Vendee shall have common right to use the main entrance at point T7 as shown in the site plan Ex.PW1/5 and right to use door marked at point X in the site plan Ex.PW1/5 since the same opens towards the courtyard and connects to the main door at point T7 and right to use the passage at point T6 (courtyard) reflected in the site plan Ex.PW1/5 to reach his portion of the property shown in Red colour in Site plan Ex.PW1/5 through three doors opening towards the courtyard. However, the terms of the Sale Deed cannot be read to construe that the WC at point T4 in site plan Ex.PW1/5 is common portion which plaintiff is entitled to use, as the same is not part of the passage and is situated separately. The Vendor/defendant has only allowed the Vendee/plaintiff to use the portion at point T6, which is the courtyard, for the purpose of passage. In case plaintiff is directed to close the three doors opening towards the courtyard, his easementary rights in the portion marked T6 in the site plan Ex.PW1/5 would be affected.Shri Atin Singhal Suit No.598163/16/11 Page 24 of 29
30. Ld. Counsel for defendant has argued that in order to separate the sold out portions and the remaining left portions of the defendant, a common wall was drawn in Yellow colour, which was undertaken to be constructed within 15 days from the date of the execution of the Sale Deed. At this stage, it becomes pertinent to examine Section 91 and 92 of the Indian Evidence Act,1872 (hereinafter referred to as 'the Evidence Act') which contains the best evidence rule. Section 91 of the Evidence Act forbids proving of the contents of a document otherwise than by the document itself. Section 91 is further supplemented by Section 92 of the Evidence Act, which provides that once the contents of the document have been proved by the document/writing itself, then no evidence can be given of any oral agreement to contradict or change the terms of the contract embodied in the document. However, proviso (1) to Section 92 of the Evidence Act provides that evidence can be given of any fact that would invalidate the document or would entitle a party to any decree or order relating to the document. The validity of the document maybe questioned on the grounds of fraud, intimidations, illegality, failure of consideration, mistake of law or fact. Therefore, Section 92 of the Evidence Act makes oral evidence admissible in order to prove fraud. As discussed earlier, defendant has failed to establish the existence of fraud, therefore, the oral testimony of the defendant that plaintiff has proposed to raise a wall at the place of the three doors opening towards the courtyard is inadmissible. It is well settled that the oral stipulations when pitched against the written contract, would have to give way to the terms and conditions of the written statement which alone will bind the parties and nothing further. In view of Shri Atin Singhal Suit No.598163/16/11 Page 25 of 29 the settled law the oral testimony of defendant is inadmissible in evidence in view of the written instrument of sale Ex.PW1/1. Accordingly, defendant cannot be allowed to raise a brick wall or plaintiff cannot be directed to close the doors/openings with brick walls at point X, Y and Z (as shown in site plan Ex.DW1/6) as the same would affect the easementary rights of the plaintiff.
31. Defendant has also prayed for a decree of permanent injunction thereby restraining the plaintiff not to interfere in the peaceful use and enjoyment of and/or assert any right in the portion exclusively owned by the defendant as shown in Yellow colour in the site plan Ex.DW1/6. As has already been discussed earlier, plaintiff is entitled to use the passage at point T6/courtyard in site plan Ex.PW1/5 which can only be accessed through main door marked at point T7 in site plan Ex.PW1/5 and door marked at point 'X' in the site plan Ex.PW1/5. However, plaintiff has no right to use the WC at point T4 in the site plan Ex.PW1/5. So far as the WC is concerned, plaintiff is not entitled to assert any right with respect to WC marked in Yellow colour in site plan Ex.DW1/6.
32. In view of the aforesaid discussion, it is clear that defendant has failed to discharge the burden to prove issue No.3 and accordingly issue No.3 is decided against the defendant. However, issue No.4 is decided partly in favour of defendant and plaintiff is hereby restrained from interfering from the peaceful use and enjoyment of the WC marked in Shri Atin Singhal Suit No.598163/16/11 Page 26 of 29 Yellow in the site plan Ex.DW1/6 or from asserting any right in the WC marked in Yellow colour in the site plan Ex.DW1/6.
ISSUE NO.1: Whether the claimant is entitled to decree of declaration declaring the claimant to be the exclusive owner of the disputed portion as prayed? (OPP)
33. The burden to prove the present issue was on the defendant. Defendant has prayed that that he be declared the exclusive owner in respect of the disputed portion shown in Yellow colour including the Main Gate/entrance of the building, WC, courtyard etc. of the suit property. Ld. Counsel for defendant has argued that what plaintiff claims to be the common portion is unsold portion of the suit property. That his unsold portions have been wrongly described as the common portion in the Sale Deed.
34. As has been discussed earlier, the Sale Deed only talks about common rights to use the passage and there is no mention of the phrase 'common portion'. It has already been observed above that plaintiff has an easementary right in respect of the portion/courtyard shown in Yellow colour in Site plan Ex.DW1/6.
35. Section 34 of the SRA provides that a plaintiff may seek a declaration that he is entitled to any legal character or to any right to any property, if the defendant denies or is interested in denying his title to such character or right, and the proviso to this section further lays down that the Shri Atin Singhal Suit No.598163/16/11 Page 27 of 29 Court shall refuse such a declaration, where the plaintiff fails to ask further relief which is available to him. The object of this Section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where the cloud is cast upon it, and to prevent further litigation by removing the existing cause of controversy. Even if the elements of Section 34 of the SRA are satisfied, it is still discretionary with the Court to grant the relief and it cannot be claimed as a matter of right. The power under Section 34 of the SRA is to be exercised by the Court with caution, according to the exigencies of a particular case. A party cannot, as of right claim such a declaration, because, such a relief is more in the nature of an equitable relief than a legal remedy. The relief has to be granted by the Court accordingly to sound legal principles and ex debito justitiae.
36. Now coming to the facts of the present matter, it will not be equitable and in interest of justice if the present relief is allowed as plaintiff has easementary right in the courtyard marked in Yellow in site plan Ex.DW1/6. The present relief sought is of such a character that if the same is granted, it may result in negating the easementary rights of the plaintiff. Accordingly, the present issue is decided against the defendant.
Considering the nature of Issue no.5 and 6, the same shall be taken together:
ISSUE NO.5: Whether the counter-claim is liable to be rejected under Order 7 Rule 11 CPC? (OPD) ISSUE NO.6: Whether the claimant is estopped from denying the Shri Atin Singhal Suit No.598163/16/11 Page 28 of 29 contents of the sale deed? (OPD)
37. The burden to prove the present issue is on the plaintiff. Plaintiff has failed to lead any evidence to prove the present issue. Therefore, plaintiff has failed to discharge the burden to prove the present issue. Accordingly, the present issue is decided against the plaintiff.
RELIEF:
38. In view of the above said findings on issues, the suit of the claimant/defendant is decreed in part with the following relief:
Plaintiff is hereby restrained from interfering from the peaceful use and enjoyment of the WC marked in Yellow in the site plan Ex.DW1/6 or from asserting any right in the WC marked in Yellow colour in the site plan Ex.DW1/6.
No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after necessary compliance.
Announced in the open Court (Neha Garg)
on this 31.01.2022 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
Shri Atin Singhal Suit No.598163/16/11 Page 29 of 29