Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 23, Cited by 0]

Delhi District Court

Subhash Singh vs Gauri Shankar on 26 June, 2020

        IN THE COURT OF SH. MANISH JAIN, CIVIL JUDGE
                   NORTH WEST: ROHINI COURTS: DELHI


 C.S. No. 59890/16


 1. Subhash Singh
 2. Jagbir Singh
 Both S/o Sh. Azad Singh,
 R/o Vill. & P.O. Songhola,
 Delhi­110040.                                               ...Plaintiffs


                                     VERSUS
 1. Gauri Shankar
 S/o Sh. K.C. Gupta,
 R/o B­1/22, Ashok Vihar,
 Phase­II, Delhi.

 2. Ajeet Singh
 S/o Sh. Neki Ram,
 R/o Vill. & P.O, Singhola,
 Delhi.                                                    ...Defendants


 SUIT FOR DECLARATION AND PERMANENT INJUNCTION
               Date of institution      : 24.02.2009
               Date of decision         : 26.06.2020
               Final Order              : Dismissed



JUDGMENT

BRIEF FACTS

1. The plaintiffs filed a suit for declaration and permanent injunction CS No. 59890/16 Page No. 1 of 22 stating therein that the plaintiffs were the recorded owners of agricultural land measuring 9 bighas 12 biswas, comprised in Khasra no. 38/6 (4­16) and 38/15 (4­16) at Village Singhola, Delhi. As per the plaintiff, vide the consolidation proceedings, the entire agricultural land was put into one pool and rights of all the Bhumidars, including those of the plaintiffs were abolished and repartition of the entire holding of village Singhola was carried out by the Consolidation Officer U/s 21(1) of the East Punjab Consolidation Act, 1948. As per the plaintiffs, vide the repartition which was conducted between 26.05.1997 to 06.06.1997, no agricultural land was allotted to the plaintiffs; joint Khata of the plaintiffs were separated and separate allotment as per the entitlement of plaintiffs on the basis of their rights at pre­consolidation stage was made. As per the plaintiffs, plaintiff no. 1 was allotted Industrial plot no. 69/207 (0­6) and Residential Plot no. 70/99 (1­16), Village Singhola, Delhi.

2. It is alleged by the plaintiffs that defendant no. 2 who is a property dealer, persuaded the plaintiffs to execute GPA and other allied documents with respect to agricultural land bearing Khasra No. 38/6 (4­16) and 38/15 (4­16) at Village Singhola, Delhi which belonged to the plaintiffs prior to the commencement of the said consolidation, in pursuance of which GPA dated 24.04.2001 was executed by plaintiff no. 1 & 2 in favour of defendant no. 2, though on the said date neither of the plaintiffs was the owner of the said land. It is further submitted that in the year 2003, on realizing the said mistake, the plaintiff cancelled the GPA dated 24.04.2001 vide cancellation deed, notice of which was given to defendant no.2. As per the plaintiffs, in May 2008, it came to their knowledge that the plot allotted to plaintiff no. 1 bearing no. 70/99 (1­16), Village Singhola, Delhi has been mutated in the CS No. 59890/16 Page No. 2 of 22 name of defendant no. 1 on the basis of sale deed dated 21.06.2001 executed by defendant no. 2 in favour of defendant no. 1 vide registered sale deed duly registered at Bombay.

3. It is further submitted by the plaintiffs that immediately thereafter, plaintiff no. 1 moved an application before the Tehsildar with respect to rectification of the mistake and Tehsildar vide order dtd. 02.06.2008, recalled the previous order, on which a revision petition has been filed by defendant no. 1 before the Financial Commissioner. As per the plaintiffs, plaintiff no. 1 has already sold the plot bearing no. 70/99 (1­16), Village Singhola, Delhi to one Sh. Praveen Kumar Chhabra vide general power of attorney and agreement to sell dated 24.06.2005. Thus, the present suit has been filed seeking a decree of declaration thereby declaring the sale deed dated 21.06.2001 not binding upon the plaintiffs and further to declare the said sale deed as null and void. A relief of permanent injunction has also been sought by the plaintiffs thereby restraining the defendants from creating any third party interest in property bearing Khasra no. 70/99 (1­16) at Village Singhola, Delhi.

4. On being served, the defendants marked their appearance before the court and filed their respective written statements separately. In the written statement filed by defendant no. 1, the averments made in the plaint have been denied and it is stated that the plaintiffs have already sold and transferred their pre­consolidation land of Khasra no. 38/6 (4­16) and 38/15 (4­16), Village Singhola, Delhi, in lieu of which post consolidation land bearing Khasra no. 70/99 (1­16), Village Singhola, Delhi has been allotted by the Consolidation Department and the said land has been mutated in the CS No. 59890/16 Page No. 3 of 22 name of defendant no. 1, vide mutation order dated 22.05.2008. It is further stated that defendant no. 1 is the bhumidar and in actual physical possession of the said land. As per defendant no.1, plaintiffs approached defendant no. 1 on 05.03.2001, alongwith revenue record and showed their intention to sell their land to defendant no. 1. It is further stated that the attorney of the plaintiffs, subsequently executed a registered sale deed dated 21.06.2001 in favour of the defendant no. 1, after receiving of full and final sale consideration and handed over the possession of the land to defendant no. 1 and hence, it is prayed that the present case be dismissed.

5. Defendant no. 2 in his written statement denied the averments made in the plaint and stated that the plaintiffs have concealed the material facts regarding execution of other documents such as sale agreement, possession letter, receipt etc. along with irrevocable General Power of Attorney. It is further stated that the plaintiffs have also concealed the fact that the Revisional Court has granted stay of the order dtd. 22.05.2008 and therefore the present proceedings are infructuous. However, upon his non­ appearance, defendant no. 2 proceeded exparte vide order dtd. 02.04.2016.

ISSUES

6. Upon completion of pleadings, following issues were framed in the matter on 03.09.2009:

(i) Whether the plaintiff is entitled to the relief of declaration, as prayed for? (OPP)
(ii) Whether the plaintiff is entitled to the relief of permanent and mandatory injunction, as prayed for?
CS No. 59890/16 Page No. 4 of 22
(OPP)
(iii) Whether the suit is barred by provisions of Specific Relief Act? (OPD)
(iv) Whether the suit is likely to be dismissed for concealment of material facts? (OPD)
(v) Whether the suit is barred by section 185 & 186 of Delhi Land Reforms Act? OPD
(vi) Whether the suit is barred by limitation? (OPD)
(vii) Whether the suit is not properly valued for the purpose of Court Fees Act and jurisdiction? (OPD)
(viii) Whether the suit is barred by non­joinder of parties? (OPD)
(ix) Relief.

TRIAL

7. Plaintiff examined himself as PW1 vide affidavit Ex. PW1/A wherein he re­iterated the contents of the plaint and has relied upon the following documents: 

       i.      Ex.PW1/6- Original cancellation deed;
      ii.      Mark A­ Copy of order dated 18.11.2010 passed by Financial
               Commissioner;
     iii.      Mark B - Copy of certified copy of said civil suit;
     iv.       Mark C - Copy of office copy of the notice dtd. 20.03.2013;
      v.       Mark D - Copy of notice published in newspaper;
     vi.       Mark E - Copy of order dtd. 02.06.2008;
     vii.      Mark F - Copy of postal acknowledgement.


CS No. 59890/16                                                      Page No. 5 of 22

PW1 was duly cross examined on behalf of defendant. No other witness was examined by plaintiff and PE stood closed on 13.08.2018.

8. Defendant examined himself as DW1 vide affidavit Ex. DW1/A and has relied upon the following documents:

i. Mark A­ Copy of certified copy of interim status quo order passed;
ii. Mark B - Copy of certified copy of CS (OS) no. 1079 of 2013; iii. Mark C - Copy of certified copy of letter dtd. 23.07.2013; iv. Mark D - Copy of certified copy of letter dtd. 19.07.2013; v. Mark E - Copy of FIR no. 372/13 dated 16.07.2013 PS Shahbad Dairy;
vi. Mark F - Envelope of the abovementioned letters.
Despite giving many opportunities, the plaintiff failed to cross examine DW1 and therefore, his right to cross examine DW1 was closed vide order dtd. 28.03.2019. However, in view of order dated 30.07.2019 of Hon'ble High Court of Delhi, plaintiff was granted one more opportunity to cross examine DW1 and accordingly, DW1 was cross examined by the plaintiff on 04.09.2019. Since no other witness was examined by the defendant, DE stood closed vide order of the same date.

9. I have heard the arguments and the record has also been perused.

CS No. 59890/16 Page No. 6 of 22

FINDINGS With respect to issue no. (iii)­

10. The burden of proof under section 103 of Indian Evidence Act, 1872 for proving the present issue is upon the defendant. The plaintiff, by way of this present suit inter­alia has sought the relief of declaration thereby declaring the sale deed dated 21.06.2001 with respect to the property bearing Khasra number 38/6 (4­16), Village Singhola, Delhi to be declared as null and void. It is not in dispute between the parties that the impugned Sale deed has been registered in Bombay. The plaintiff has relied upon Section 28 of The Registration Act, 1908 which is reproduced herein below­ "Save as in this Part otherwise provided every document mentioned in Section 17, sub­section (1), clauses (a), (b), (c), (d) and (e) Section 17, subsection (2), in so far as such document affects immovable property, and Section 18, clauses (a), (b)

(c) and (cc), shall be presented for registration in the office of a Sub­Registrar within whose sub­ district the whole or some portion of the property to which such document relates is situate."

It is stated by the plaintiff that since the above stated property is situated in Delhi, sale deed with respect to such a property should have been registered in the sub registrar office within the vicinity of Delhi. It is further contended by the plaintiff that since Section 28 of The Registration Act, 1908 has not been complied with, the sale deed cannot be accepted to be a valid document.

CS No. 59890/16 Page No. 7 of 22

11. In this context, I am constrained to refer Section 30(2) of The Registration Act, 1908 as stood before Act 48 of 2001 by which the said sub­section was omitted. For the purposes of convenience, I hereby am reproducing the omitted sub­section­ "[The Registrar of a district in which a Presidency­ town is included and the Registrar of the Delhi district] may receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates."

The omitted sub­section authorised the Registrar of presidency town of Bombay to register the documents with respect to properties situated in any part of India. Section 30(2) of The Registration Act, 1908 as stood before Act 48 of 2001 served as an exception to the general rule enshrined under Section 28 of The Registration Act, 1908. As alleged by the plaintiff, the sale deed was registered on 21.06.2001 in favour of defendant no. 1. It is worth noticing that Act 48 of 2001 came into effect from 24.09.2001 i.e. after the impugned sale deed was registered. It implies that the sale deed registered in Bombay will come within the purview of Section 30(2) of The Registration Act, 1908 as it existed on the date the sale deed was registered.

Accordingly, the objection raised by the plaintiff with respect to the place of registration is not tenable in law.

12. Further, the defendants have relied upon Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors [CIVIL APPEAL NOS. 2811­2813 OF CS No. 59890/16 Page No. 8 of 22 2010 {Arising out of SLP [C] Nos.6745­47/2009}], the relevant portion of which is herein below reproduced­ "Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed.

But if a non­executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non­est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' ­­ two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non­ est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non­binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad­ valorem court fee on the consideration stated in the sale deed. If `B', who is a non­executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 CS No. 59890/16 Page No. 9 of 22 under Article 17(iii) of Second Schedule of the Act. But if `B', a non­ executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad­valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."

It is contended by the defendants that since the sale deed has been executed by the attorney of the plaintiff, in law, the same shall be deemed to be executed by the plaintiff himself. It is the plaintiff's case that GPA dated 24.04.2001 was executed by them in favour of defendant no. 2 due to the wrong guidance and persuasion done by defendant no. 2. It is further submitted by the plaintiffs that no consideration was ever received by them in lieu of the above said execution of the GPA. Considering the submissions made by the plaintiffs that no consideration was ever received by them, it cannot be disputed that defendant no. 2 was merely acting as an attorney/agent of the plaintiff while carrying out the registration of the sale deed and was not acting in his individual capacity. It has been clearly held CS No. 59890/16 Page No. 10 of 22 in Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors (supra) that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed and a suit for declaration is not maintainable.

13. In the present case, the plaintiff has sought the relief of declaration thereby declaring the impugned sale deed as null and void. Under Section 34 of Specific Relief Act, 1963 the relief of declaration can only be granted if any other equal and efficacious remedy is not available.

Considering the above stated law, the relief of cancellation is the proper remedy to be availed by the plaintiff and in the present set of circumstances, the suit for declaration thereby declaring the sale deed as null and void is not maintainable being barred.

Accordingly, the present issue is decided in affirmative to the extent that the relief of declaration thereby declaring the impugned sale deed as null and void is barred under Section 34 of Specific Relief Act, 1963.

It is clarified that the it shall not be construed as a finding with respect to the fact that the GPA dated 24.04.2001 was executed by the plaintiffs in favour of defendant no. 2 without any consideration.

With respect to issue no. (vi)­

14. The onus of proving the present issue is upon the defendant. It is not disputed that the impugned sale deed was registered in Bombay on 21.06.2001. The present suit has been filed by the plaintiff seeking declaration on 24.02.2009. It is submitted by the plaintiff that he acquired the knowledge of the impugned sale deed only in May'2008 when the property bearing Khasra number 38/6 (4­16), Village Singhola, Delhi was mutated in the name of defendant no. 1 on the basis of the said sale deed CS No. 59890/16 Page No. 11 of 22 executed by the defendant no. 2 wherein defendant no. 2 acted as an attorney of the plaintiff in pursuance of the GPA dated 24.04.2001 executed by the plaintiff in favour of defendant no. 2.

15. The limitation period for filing the suit for declaration as stipulated by Article 58 of The Limitation Act, 1963 is 3 years from the date when the right to sue first accrues. It is argued by the counsel appearing for defendant no. 1 that the factum of execution and registration of the sale deed dated 24.06.2001 was always within the knowledge of the plaintiff since inception and the plea taken by the plaintiff about the lack of knowledge is merely to defeat the bar of limitation.

16. On the careful examination of the pleadings of the plaintiff as a whole, it appears that the plaintiff executed the GPA dated 24.04.2001 in favour of defendant no. 2 and there existed no relation between the plaintiff and defendant no. 1 as such. It was only in May'2008 after the property was mutated in the name of defendant no. 1, the plaintiff got the knowledge of any involvement of defendant no. 1 with respect to the property. However, in contradiction to the facts stated in the plaint, it has been admitted by the plaintiff no. 1 in his cross­examination that an agreement to sell dated 07.03.2001 was executed by the plaintiffs with defendant no. 1 with respect to the land bearing no. 38/6, measuring 4 bigha 16 biswas, Village Singhola, Delhi. It is further admitted by plaintiff no. 1 in his cross­ examination that notice was issued to defendant no. 1 by the plaintiffs stating therein about the cancellation deed dated 20.03.2003 being registered with respect to the GPA dated 24.04.2001.

17. On perusal of the admissions made by plaintiff no. 1 in his cross­ examination, the court is not inclined to infer that the plaintiffs obtained the CS No. 59890/16 Page No. 12 of 22 knowledge of the impugned sale deed only after the mutation was carried out in the name of defendant no.1. The admissions made by plaintiff no. 1 corroborates the averments made by the defendants in their pleadings. It was stated by the plaintiffs in their plaint that defendant no. 2 persuaded them to execute GPA in his favour, however, nowhere in their plaint they have referred regarding the execution of agreement to sell with defendant no .1. Further, it is beyond imagination that even though the transaction with respect to the land bearing no. 38/6, measuring 4 bigha 16 biswas, Village Singhola, Delhi was only between the plaintiffs and defendant no. 2 inter­se, notice with respect to cancellation of the said GPA was also sent to defendant no. 1. It appears that the plaintiffs were always cognizant of the fact that the sale deed had been registered in favour of defendant no.1 and it is only for the purpose of defeating the bar of limitation, such a plea has been put forward by the plaintiffs.

18. Moreover, it is always for the party who files the suit to show that the suit is within the limitation period. Thus, in cases where the suit is filed beyond the period of limitation i.e. 3 years in the present case, the plaintiff would have to aver and then prove that the suit is within 3 years of his knowledge. In the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail. In this context, it is specifically provided in Smt. Dilboo (Dead) By Lrs. & Ors vs Smt. Dhanraji (Dead) And Ors [(2000) 7 SCC 702] that whenever a document is registered, the date of registration becomes the date of deemed knowledge. A party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.

In the present set of circumstances, the limitation period for filing the CS No. 59890/16 Page No. 13 of 22 suit seeking declaration is 3 years from the date right to sue first accrues i.e. 3 years from the date sale deed was registered i.e. 3 years from 24.06.2001. The suit being filed by the plaintiffs beyond the limitation as stipulated, the same is held to be barred by law with respect to the relief of declaration seeking the sale deed to be declared as null and void.

In view of the above said discussion, the present issue is decided in affirmative.

With respect to issue no. (vii)­

19. The plaintiffs by way of present suit are seeking inter­alia the relief of declaration thereby declaring the sale deed dated 24.06.2001 as null and void. The plaintiffs have valued the relief of declaration at Rs. 200/­ both for the purposes of court fees and jurisdiction. A plea has been taken by the defendants with respect to the valuation of the suit and it has been claimed by the defendants that the suit is arbitrarily under­valued.

The counsel appearing for plaintiff no. 1 argued that the court fees shall be computed in accordance with Section 7 (iv) (c) of the Court Fees Act, 1870, wherein court fees shall be calculated according to the amount at which the relief sought is valued in the plaint. It was argued by the counsel that the relief claimed under clause (c) in prayer para is the consequential relief and therefore, ad­valorem court fees shall be paid in accordance with Section 7 of Court Fees Act, 1870 and Section 8 of The Suit Valuation Act, 1887.

20. In this context, I am constrained to mention that the proviso to Section 7 clause (iv) of the Court Fees Act, 1870 added by Punjab Amendment Act, 1953 extended to Delhi vide notification dated 21 July 1959, cannot be overlooked. The same is reproduced herein­ CS No. 59890/16 Page No. 14 of 22 "Provided further that in suits coming under sub­ clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section."

On perusal of clause (v), it is found that in such a case, suit shall be valued on the market value of the property and court fees shall be calculated ad­ valorem on such value.

It implies that for the purposes of jurisdiction, suit should have been valued on the market value of the property and the court fees should have been calculated ad­valorem on such value.

21. However, as held above, seeking cancellation of the sale deed was the appropriate remedy available to the plaintiffs. Considering the said fact, even if the plaintiffs had sought the relief of cancellation instead of declaration, as held in Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors (supra), the plaintiffs would have had to pay ad­valorem court fees on the consideration stated in the sale deed. Though the consideration amount has not been stated by the plaintiffs in their plaint, the amount at which the suit has been valued clearly appears to be arbitrary in nature.

Accordingly, the present issue is decided in favour of the defendants and against the plaintiffs.

With respect to issue no. (iv)­

22. The onus of proving the present issue lies upon the defendants. Defendants have claimed in their written statements that the plaintiffs have withhold and concealed the material facts and therefore, the suit shall be CS No. 59890/16 Page No. 15 of 22 dismissed for such concealment. The reliefs of declaration and injunction, as claimed by the plaintiffs are equitable reliefs and merely proving the ingredients of the respective provision does not entitle the plaintiff to such a relief. The court in cases of equitable reliefs hold double discretion and even if the respective ingredients of the provision are proved by the plaintiff, the court is within its right to deny such reliefs if principles of equity and justice warrants the same. If a party coming before the court is not appearing with clean hands, he is not entitled to any helping hand of the court. If a party withholds the material facts in order to obtain the decree in his favour, proving of such a concealment will entail dismissal of the suit.

In the case in hand, apart from bald averments, defendants have not produced any witness or document on record which proves any concealment on the part of plaintiffs.

Since the defendants are unable to discharge their onus, the present issue is decided in negative.

With respect to issue no. (v)­

23. The onus of proving the present issue is upon the defendant. The defendants have questioned the maintainability of the suit claiming to be barred by Section 185 and 186 of Delhi Land Reforms Act. For the sake of convenience, Section 185 of Delhi Land Reforms Act is reproduced herein below­ "(1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or CS No. 59890/16 Page No. 16 of 22 proceedings mentioned in column 3 thereof.

(2) Except as hereinafter provided no appeal shall lie form an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.

(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.

(4) A second appeal shall lie from the final order passed in an appeal under sub section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid."

In order to invoke the bar of Section 185 of Delhi Land Reforms Act, the onus to prove that the present suit falls within the purview of the bar contained in the Act was upon the defendant. The defendants have clearly failed to prove that the present suit is of a nature falling within column 3 of schedule 1 of the above­mentioned Act.

The defendants have failed to discharge their onus, in view of which the present issue is decided in negative.

With respect to issue no. (i)­

24. The onus of proving the present issue is upon the plaintiffs. It is contended by the plaintiffs that in accordance with the provisions of East Punjab (Consolidation of Holding and Prevention of Fragmentation) Act, 1948, the entire agricultural land including the plaintiffs' land bearing CS No. 59890/16 Page No. 17 of 22 Khasra no. 38/6 (4­16) and 38/15 (4­16) at Village Singhola, Delhi was put in the pool and rights of all the Bhumidars including those of plaintiffs were abolished. It is further submitted that between 26.05.1997 to 06.06.1997 repartition was conducted and plaintiff no. 1 was allotted 2 plots, one of which is the property in question i.e. Residential plot bearing no. 70/99 (1­

16), Village Singhola, Delhi. It is the plaintiff's case that since the property bearing Khasra no. 38/6 (4­16) at Village Singhola, Delhi was not in existence when GPA dated 24.04.2001 was executed and further when sale deed dated 21.06.2001 was registered, the execution and registration of such documents will not transfer any interest in favour of transferee. It is trite law that the plaintiff has to stand on its own legs. The plaintiff has neither proved any document stating therein as to when the Bhumidari rights of the plaintiffs with respect to property bearing Khasra no. 38/6 (4­

16) at Village Singhola, Delhi were abolished, nor has produced any document proving therein as to when the allotment with respect to plot bearing no. 70/99 (1­16), Village Singhola, Delhi was made in his favour. The primary burden under Section 101 of Indian Evidence Act, 1872 being on the plaintiff, it is the responsibility of the plaintiff to prove the material issues between the parties. Apart from mere averments, plaintiff is unable to prove any document excepting Ex. PW1/6 which is the Cancellation deed dated 24.03.2003 by virtue of which GPA dated 24.04.2001 executed in favour of defendant no. 2 was cancelled by the plaintiff no. 1 unilaterally. It is argued by the plaintiff that GPA dated 24.04.2001 was executed in favour of defendant no. 2 without any consideration, however the same has been disputed by the defendants and the plaintiff is unable to put forward any proof in order to substantiate his averments. The cancellation deed neither mentions that consideration was not received nor has any other cause of CS No. 59890/16 Page No. 18 of 22 cancellation been specified. It merely specifies that GPA is being cancelled due to unavoidable circumstances. Moreover, even in their plaint, plaintiffs have merely stated that they were persuaded by defendant no. 2 to execute the GPA and it was by mistake that GPA was executed by the plaintiffs. No reasonable ground has been stated by the plaintiff in Ex. PW1/6.

25. In this context, I am constrained to refer Vimla Devi vs Pushpa Devi & Anr (RSA No. 157/2017) wherein it was held by Hon'ble High Court of Delhi that transfer of rights in an immovable property is by a contract i.e. the same is a bilateral act, and such bilateral contract cannot be cancelled unilaterally i.e. by unilateral cancellation of documents by which rights in immovable property are transferred by the transferor to the transferee. Thus, the GPA dated 24.04.2001 cannot be unilaterally revoked and the plaintiff, therefore, had no right to terminate the said GPA. The revocation of the GPA by plaintiff is, therefore, of no consequence.

26. Plaintiffs by way of this present suit are seeking the relief of declaration thereby declaring that the Sale deed dated 21.06.2001 has nothing to do with the property bearing no. 70/99 (1­16), Village Singhola, Delhi. It is the admitted case of the plaintiffs that the property bearing no. 70/99 (1­16), Village Singhola, Delhi was allotted to the plaintiff no. 1 in lieu of property bearing Khasra no. 38/6 (4­16) at Village Singhola, Delhi i.e. subject matter of the sale deed. The mere controversy which appears to this court is with respect to the date on which erstwhile property was acquired and the date on which the property bearing no. 70/99 (1­16), Village Singhola, Delhi was allotted to plaintiff no. 1. The plaintiffs have miserably failed to prove the facts alleged by them and are unable to discharge their onus.

CS No. 59890/16 Page No. 19 of 22

The plaintiffs have also sought the relief of declaration wherein it has been prayed that the sale deed dated 21.06.2001 be declared as null and void. The same has been dealt by this court in the issues discussed herein above.

Accordingly, the present issue is decided in negative.

With respect to issue no. (ii) & (viii)­

27. It is alleged by the defendants that the present suit is barred and not maintainable on the ground of non­impleadment of necessary party. It is the plaintiff's case that the plaintiff has already sold and transferred the property bearing no. 70/99 (1­16), Village Singhola, Delhi to Sh. Praveen Kumar Chhabra vide GPA and other allied documents dated 24.06.2005 and further, possession has already been handed over to him on 24.06.2005 itself. It is argued by the counsel appearing for defendant no. 1 that since the rights allegedly, as stated by the plaintiff, have already been transferred in the name of some third party, the rights of the parties before the court cannot be comprehensively determined in the absence of that third party.

In this context, the court deems it proper to reproduce Order 1 Rule 9 of Civil Procedure Code, 1908­ "No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non­ joinder of a necessary party."
CS No. 59890/16 Page No. 20 of 22
It is evident from the bare perusal of the above­mentioned Rule that non­joinder shall not entail dismissal of the suit; however, the same is succeeded by the proviso, which carves out an exception to the general rule in cases of non­joinder of necessary party. It implies that where it is proved to the satisfaction of the court that a necessary party to the suit has not been joined, the suit shall be dismissed.

28. In the present set of circumstances, Sh. Praveen Kumar Chhabra to whom the plaintiff claims to have sold the property in question has not been made a party to the suit. Any finding with respect to the property bearing no. 70/99 (1­16), Village Singhola, Delhi will have a direct bearing upon the alleged rights of Sh. Praveen Kumar Chhabra over the property in question. Moreover, judicial propriety warrants that for comprehensive determination of all the issues involved with respect to the property, all the parties alleging their rights over the subject matter shall be impleaded. Accordingly, the court does not find it apposite to adjudicate and determine the rights of the parties inter­se in the absence of any necessary party.

29. Plaintiffs have also sought the relief of permanent injunction thereby restraining the defendants from creating any third party interest in the property bearing no. 70/99 (1­16), Village Singhola, Delhi. Every relief claimed is based upon some cause of action in favour of the party claiming the relief. Cause of action is the bundle of rights i.e. existence of a right in favour of the plaintiff and denial of that right by the defendant. Every suit revolves around a particular cause of action, without proving of which the suit is entitled to be dismissed. In the present case, plaintiffs themselves have submitted in their plaint that the above said property has already been CS No. 59890/16 Page No. 21 of 22 sold to some third person. Since, as per the plaintiff, all the rights in the property bearing no. 70/99 (1­16), Village Singhola, Delhi have been transferred to Sh. Praveen Kumar Chhabra, the plaintiffs are unable to show as to in what right they are claiming the relief of injunction. Considering the averments of the plaint to be true, no right exists in favour of the plaintiffs with respect to the property in question.

Accordingly, both the issues are decided in favour of the defendants and against the plaintiffs.

CONCLUSION

30. In view of the above discussion, suit of the plaintiffs is hereby dismissed.

No order as to cost.

Decree sheet be prepared accordingly.

File be consigned to Record Room after due compliance.


                                                                     Digitally signed
       Announced in open Court today.               MANISH           by MANISH JAIN
                                                    JAIN             Date: 2020.06.26
                                                                     06:04:01 +0530

                                                   (Manish Jain)
                                                   Civil Judge, North West
                                                   Rohini Courts, Delhi
                                                   26.06.2020




CS No. 59890/16                                                 Page No. 22 of 22