Delhi District Court
Sh. V. P. Tyagi vs Sh. Om Prakash Saini on 16 April, 2012
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADJ03
(CENTRAL) DELHI
CS NO. 1128/2008
SH. V. P. TYAGI
S/O. SH. JEET RAM TYAGI
R/O. WZ14A VILLAGE BUDHELLA,
VIKASPURI, NEW DELHI - 110018. ....PLAINTIFF
VERSUS
SH. OM PRAKASH SAINI
S/O. SH. MAGTO RAM SAINI
R/O. WZ45, VILLAGE BUDHELLA,
VIKASPURI, NEW DELHI - 110018. .....DEFENDANT
CS NO. 1129/2008
SH. OM PRAKASH SAINI
S/O. SH. MAGTO RAM SAINI
R/O. WZ45, VILLAGE BUDHELLA,
VIKASPURI, NEW DELHI - 110018. .....PLAINTIFF
VERSUS
SH. V. P. TYAGI
S/O. SH. JEET RAM TYAGI
R/O. WZ14A VILLAGE BUDHELLA,
VIKASPURI, NEW DELHI - 110018. ....DEFENDANT
Date of Institution of the CS NO. 1128/08 : 24.11.2004
Date of Institution of the CS NO. 1129/08 : 20.04.2005
CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash
CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 1/46
2
Date on which order was reserved : 24.02.2012
Date of decision : 16.04.2012
J U D G M E NT
1.Vide this common judgment, I shall dispose off aforesaid titled suits. The first suit is a suit field by the plaintiff Sh. V. P. Tyagi bearing Suit No. 1128/2008 against Sh. Om Prakash Saini, which is a suit for declaration and permanent injunction and Suit No. 1129/2008 is a suit for possession and mesne profits filed by Sh. Om Prakash Saini against Sh. V. P. Tyagi.
2. Both the cases were consolidated vide order dated 28.10.2005 with suit no. 1128/08 as the main suit and common evidence was ordered to be recorded in the said suit no. 1128/08, which was to be read in both the cases.
3. Brief facts pertaining to Suit No. 1128/08 are that the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 2/46 3 plaintiff is the owner and in possession of built up property bearing no. WZ14A, Measuring 222 sq. yds. approximately out of Khasra No. 29/7/1/2 situated in the area of Village Budhella, Vikaspuri, New Delhi - 18 (hereinafter referred as suit property). It is stated that the aforesaid property is an ancestral property. It is stated that the plaintiff and the defendant have been carrying on a joint business in the name and style of Kamawal Housing Pvt. Ltd. and they had also formed a company duly incorporated under The companies Act, 1956, having its factory at F4, RIICO Industrial Area, Bhiwadi, District Alwar, Rajasthan, and the corporate office of the aforesaid company at the address of suit property and both the plaintiff and the defendant were Directors in the same.
4. It is stated that the plaintiff and the defendant had borrowed the loan from the Small Industries Development Bank of India. However, because of the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 3/46 4 loss in the business, the business could not run longer and both the parties were put to different litigation and a recovery proceeding were proceeded by the bank before the Debt Recovery Tribunal, New Delhi.
5. It is further stated that the plaintiff and defendant had been trusting and cooperating each other and on number of times executed number of recitals / deeds in favour of each other and due to relationship between the parties, the defendant had been retaining / keeping even a blank paper duly signed by the plaintiff, which he converted into resignation letter of the plaintiff from the Directorship of the aforesaid company. It is submitted that due to aforesaid relationship, the plaintiff executed General Power of Attorney, Agreement to Sell, Affidavit dated 24.05.2004, in favour of the defendant with regard to the suit property. The plaintiff in good faith got the General Power of Attorney dated 24.05.2004 registered in favour of the defendant and the plaintiff further executed an CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 4/46 5 Agreement to Sell, Receipt, Will, Possession Letter and other documents in favour of the defendant, though no money transaction took place between the parties.
6. It is further stated that as per the documents / recitals, the possession premises in question had been handed over to the defendant, but in fact no possession was handed over to the defendant and the same is still in possession of the plaintiff. As per the agreement, a sum of Rs. 20,00,000/ was allegedly paid to the plaintiff, however no money was paid to the plaintiff by the defendant actually.
7. It is further stated that said suit property has been used as garage for repairing cars, etc. in the name and style of M/s. Time Motors Pvt. Ltd. It is further stated that the documents dated 24.05.2004 in favour of the defendant were executed between the parties, under coercion and misrepresentation and therefore, the plaintiff has filed CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 5/46 6 the present suit for declaration. It is further stated that on 14.11.2004 and 15.11.2004, the defendant and his associates tried to take forcible possession of the suit property and the plaintiff informed the police in this regard and the police recorded a DD No. 46B.
8. It is further stated that the plaintiff has cancelled the General Power of Attorney executed in favour of the defendant on 24.05.2004, vide cancellation of General Power of Attorney dated 16.11.2004 and got the same registered with the office of Sub Registrar, Janakpuri, New Delhi, and similarly, the plaintiff has also cancelled the Will dated 24.05.2004, vide cancellation of Will dated 16.11.2004 and got the same registered with the office of Sub Registrar, Janakpur, New Delhi, through his counsel Sh. H. K. Babbar Advocate. The intimation in this regard had also been sent to the defendant.
9. In these circumstances, the plaintiff has filed the suit CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 6/46 7 praying the following reliefs :
(a). A decree of declaration against the defendant, thereby declaring the General Power of Attorney, agreement to sell, Will, Receipt, Possession Letter, etc., all dated 24.05.2004 executed in favour of the defendant by the plaintiff as null and void;
(b). Further a decree of declaration in favour of the plaintiff and against the defendant, thereby declaring that the plaintiff is the owner of suit property as shown in red colour in the site plan annexed with the plaint;
(c). A decree of permanent injunction in favour of the plaintiff and against the defendant, thereby restraining the defendant, his agents, servants, associates, nominees, etc., from forcibly dispossessing and / or interfering in any manner in the peaceful use and enjoyment of the suit property along with costs.
10.Written Statement has been filed on behalf of the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 7/46 8 defendant in which the allegations made in the plaint had been denied. It is stated that present suit has been filed by the plaintiff with malafide intentions, just to grab the suit property, which has already been sold by the plaintiff to the defendant and has executed the sale documents with the office of Sub Registrar, Janakpur, New Delhi and the plaintiff has already received the entire sale consideration of Rs. 20,00,000/ from the defendant. After execution of the sale documents i.e. General Power of Attorney, Agreement to Sell, Receipt, Will, Possession Letter and affidavit, the defendant had to take the physical possession of the suit property, but the plaintiff requested the defendant to grant three months' time, as he was using the suit property as a garage for repairing cars, etc. and the plaintiff stated that he will arrange some other site to shift his workshop. Due to cordial relationship between the parties, the defendant granted the said time to the plaintiff. Further, it is stated that the symbolic possession of the suit property had already CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 8/46 9 been taken by the defendant from the plaintiff, when the possession letter was executed by the plaintiff in favour of the defendant. It is stated that the plaintiff kept on delaying the matter and when on 15.11.2004, the defendant along with 3 - 4 respectable persons asked the plaintiff to hand over the possession of the suit property, the plaintiff started misbehaving along with his son namely Sh. Manoj Tyagi and PCR van came there and in the presence of several persons, plaintiff made requests to give two days' time for vacating the suit property and the matter was also reported by the PCR officials vide DD No. 8A. Thereafter, the plaintiff cleverly, dishonestly and mischievously filed the present suit, despite receiving the entire sale consideration of Rs. 20,00,000/.
11.It is further stated that the present suit was not properly valued for the purpose of court fees and jurisdiction of this court and that same is without any cause of action CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 9/46 10 and the other allegations made in the plaint have been denied in toto and it is stated that the plaintiff has not explained as how the coercion was used and what was the misrepresentation, as mentioned by the plaintiff in his plaint. It is further stated that after receipt of the sale consideration of Rs. 20,00,000/ and the execution of all the documents as mentioned above by the plaintiff, the plaintiff had no right or authority to cancel the sale documents as mentioned in the plaint, therefore it is prayed that the present suit is liable to be dismissed with cost.
12.Replication has been filed by the plaintiff to the written statement of the defendant, in which the allegations made in the written statement have been denied and those made in the plaintiff have been reaffirmed as correct. It is also stated that after the amendment and implementation of the Stamp Duty Registration and Court Fees in Delhi with effect from July, 2002, it is CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 10/46 11 mandatory that every agreement with regard to the transfer of immovable property shall be registered and there is no embargo of the Government for non registration of the document. It is stated that the plaintiff had not sold the suit property in favour of the defendant. It is denied that the plaintiff had received a sale consideration of Rs. 20,00,000/ or had transferred any right in the suit property in favour of the defendant. Regarding the Suit No. 1129/2008 :
13.The facts with regard to Suit for possession and mesne profits filed by the defendant in suit no. 1128/2008 are same, as has been mentioned in the written statement of Sh. Om Prakash Saini in the above suit, therefore there is no need to repeat the same to avoid the prolixity. The plaintiff in this suit was defendant in the above case. It is stated that after the execution of the aforesaid documents i.e. General Power of Attorney, agreement to sell, Will, receipt, etc., the present plaintiff has become CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 11/46 12 owner of the suit property. Therefore, a decree of possession in his favour and against the defendant, thereby directing the defendant to vacate the suit property and hand over the peaceful and vacant possession of suit property and further a decree of damages / mesne profits be passed in favour of the present plaintiff and against the defendant @ Rs. 10,000/ per month from the date of filing the suit till the suit property is vacated.
14.In the written statement filed by the defendant Sh. V. P. Tyagi, who was plaintiff in the suit no. 1128/08, the averments are same as mentioned in the plaintiff of the aforesaid case. They are also not being reproduced again to avoid prolixity. Besides this, the defendant has taken the plea that the plaintiff has not disclosed the name of the bank or the account from which, he had withdrawn such a huge amount and paid to the plaintiff in cash and no document in this regard, whatsoever, has CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 12/46 13 been filed on the record.
15.It is further stated that the plaintiff is in habit of preparing the documents with regard to the suit property. The plaintiff got another set of documents dated 23.05.2000, whereby it is alleged that the suit property was allegedly sold by the defendant in the favour of the present plaintiff and in possession of him. The plaintiff had not disclosed the circumstances in which the earlier documents were executed on 23.05.2000. The plaintiff had not disclosed, whether he had paid Rs. 15,00,000/ as sale consideration of 23.05.2000 or not. The plaintiff be directed to produce the documents related to the aforesaid payment. It is further stated that the plaintiff had not paid any single penny in the year 2000 and now.
16.It is again reiterated no consideration was paid to the defendant Sh. V. P. Tyagi as alleged by the plaintiff Sh. CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 13/46 14 Om Prakash Saini in the present case and so was on the earlier occasion in the year 2000 and the defendant never executed the documents, which have been mentioned above and even no money transaction had been taken place. It was a considerationless transaction, therefore it is stated that the suit of the plaintiff is not maintainable and is liable to be dismissed.
17.Vide order dated 03.05.2006, following issues were framed in both the suits separately to avoid any sort of confusion: Issues in Suit No. 1128/2008 (Old No. 175/05)
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the suit of the plaintiff has not been properly valued CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 14/46 15 for the purpose of court fees and jurisdiction? OPD
3. Whether the suit is without any cause of action and also barred by law of limitation? OPD
4. Whether the plaintiff is entitled to declaration as per prayer in para no. 20 (i) and (ii) of the suit? OPP
5. Whether the plaintiff is entitled to permanent injunction as prayed in para no. 20 (iii) of the suit? OPP
6. Relief.
Issues in Suit No. 1129/2008 (Old No. 46/05)
1. Whether the suit is not maintainable as it does not CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 15/46 16 disclose any cause of action?
OPD
2. Whether plaintiff has purchased the suit property from the defendant and paid consideration of Rs.
20,00,000/? OPP
3. Whether the defendant had executed the documents viz.
GPA, agreement to sell, Will, Receipt, possession letter and affidavit regarding the suit property or whether the aforesaid documents have been got executed by the plaintiff from the defendant under coercion? OPD
4. Whether plaintiff is entitled for possession of property as CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 16/46 17 prayed in para 1 of prayer of the suit? OPP
5. Whether the plaintiff is entitled for mesne profit / damages @ Rs. 10,000/ per month from the date of filing of the suit till the suit property is vacated? OPP
6. Relief.
18.The plaintiff has examined five witnesses in support of his claim. He has examined himself as PW1, Sh. Pradeep Soni, LDC from the office of Sub RegistrarII, Janakpuri, as PW2, Sh. Dharmender Singh as PW3, who was the Sub Registrar at the time of execution of the cancellation of the documents, Sh. Manoj Tyagi, son of the plaintiff as PW4 and Sh. H. K. Babbar Advocate, who prepared the later on documents of cancellation dated 16.11.2004.
CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 17/46 18
19.Defendant has examined himself as DW1, Head Constable Balwan Singh as DW2, who has proved the DD No. 8A and Sh. Krishan Tyagi, an attesting witness as DW3.
20.I have heard Ld. Counsel for the plaintiff Sh. R. K. Sharma (who is defendant in Suit No. 1129/2008) and Ld. Counsel for the defendant Sh. M. P. S. Kasana (who is plaintiff in Suit No. 1129/08). I have also perused the written synopsis filed by the plaintiff Sh. V. P. Tyagi in support of his contentions. The plaintiff Sh. V. P. Tyagi has relied upon the following judgments in support of his contentions :
1. AIR 1966 Supreme Court 1438 (V 53 C 282).
2. AIR 1982 Supreme Court 989.
3. AIR 1982 Supreme Court 1008.
4. 1997 Rajdhani Law Reporter 287 (SC).
5. 1997 Rajdhani Law Reporter 292.
CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 18/46 19
6. 157 (2009) Delhi Law Times 374.
7. 167 (2010) Delhi Law Times 806.
8. 167 (2010) Delhi Law Times 812 and
9. (2012) 1 Supreme Court Cases 656.
21.The defendant Sh. Om Prakash Saini has filed following judgments in support of his contentions:
1. Apex Decision 2010 Vol. VI Delhi Page 531535.
2. 2010 VI AD (Delhi) 535.
3. 2010 (120) DRJ 85.
4. 2011 (1) Civil Court Cases 392 (S.C.).
5. 94 (2001) Delhi Law Times 841 (DB).
6. 2009 (1) Civil Court Cases 412 (S.C.).
7. 2009 (1) Civil Court Cases 416 (S.C.).
22. My issues - wise findings in Suit No. 1128/2008 are as under : CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 19/46 20 ISSUES NO. 1 AND 3 Both of these issues are taken up together as they are interconnected with each other.
23. The onus to prove these issues was upon the defendant. The defendant has not lead any evidence on this aspect. Even otherwise, the defendant has failed to show as how the present plaintiff has no locus standi to file the present suit. As the documents in question were allegedly executed by the plaintiff and it was the plaintiff only, who could file a suit for declaration along with consequential relief of injunction to avoid those documents, therefore the plaintiff has very much locus standi to file the present suit.
24.The suit of the plaintiff is also within the period of limitation, as the present suit is a suit for declaration regarding the documents, which were executed on 24.05.2004 and the present suit has been filed on CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 20/46 21 24.11.2004, which has been filed within the period of limitation, as the limitation for filing the suit for declaration is within the period of three years from the arising of cause of action. Therefore, issues no. 1 and 3 are decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2
25. The plaintiff in the present suit had valued the suit for the purposes of court fees and jurisdiction at Rs. 200/ and Rs. 130/ respectively. However, the documents, which the plaintiff wanted to avoid by way of present suit with consequential relief of declaration were allegedly for a sale consideration of Rs. 20,00,000/, which fact has been clearly mentioned in the agreement to sell and receipt, both dated 24.05.2004. Therefore, it appears that the present suit was not properly valued for the purpose of court fees and jurisdiction, when initially it was filed but later on, when the defendant moved the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 21/46 22 application u/o. 7 Rule 11 CPC on this ground. Ld. Counsel for the plaintiff conceded on 09.02.2007 that requisite court fees had not been paid and he prayed for two week's time to file the court fees. Thereafter, the requisite court fees seems to have been filed by the plaintiff in the present case. Therefore, in these circumstances, it cannot be said that present suit is not properly valued for the purpose of court fees and jurisdiction. Therefore, this issue is accordingly decided in favour of the defendant, but since the requisite court fees has now been paid, as discussed above, this issue has no bearing on the outcome of the present case. ISSUE NO. 4
26. Regarding this issue, the plaintiff has pleaded two things in his plaint :
(a). that the documents dated 24.05.2004 were executed by the plaintiff without any consideration and
(b). that the said documents were executed by the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 22/46 23 plaintiff under coercion and misrepresentation.
The plaintiff had to prove these two premises to succeed in the present case.
27.The plaintiff has appeared himself as PW1 and has filed his affidavit. In the para no. 5 of his affidavit, he has taken the plea that after the bank initiated the recovery proceedings against the defendant and the plaintiff for the debt recovery. The defendant developed a malafide intention and thought of manipulating to give practicle shape of his designs and in pursuance to said designs, he asked the plaintiff to prepare some sham documents like Agreement to Sell, GPA, Will, Receipt, Affidavit, etc., which are documents dated 24.05.2000, in his favour in respect of the suit property. The facts pleaded in the para no. 5 of the affidavit have not been pleaded in the plaint or in the replication, therefore same cannot be looked into. The plaintiff has pleaded in his plaint that the aforesaid documents were executed under the mis CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 23/46 24 representation and coercion, without giving the details of the same. However, it was not explained as what malafide intention and what coercion / pressure was exercised upon the plaintiff, while executing the said documents. Be that as it may, PW1 was extensively cross examined on behalf of the defendant. In his cross examination, he has not disputed the execution of all the documents dated 24.05.2000, which have been executed as Ex.PW1/D3 (possession letter), Ex.PW1/D4 (receipt) Ex.PW1/D5 (agreement to sell), Ex.PW1/D6 (affidavit), Ex.PW1/D7 (GPA) and Ex.PW1/D8 (Will). He also admitted that GPA was also registered, however he denied that he was given any consideration for executing said documents dated 24.05.2000 and stated that it was a paper transaction and no actual sale had taken place, therefore no possession had been handed over. He also admitted in his cross examination that he had executed aforesaid documents and he had gone along with the defendant to the office of Sub Registrar and those CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 24/46 25 documents were prepared at the office of Sub Registrar, Janak Puri, New Delhi, and were presented for their registration before the Sub Registrar. He had signed the document, after ascertaining the contents and he also stated that he was not in the pressure or was threatened by anyone directly or indirectly and he had executed the document voluntarily and with free will. He also admitted that he was M. Com by education and therefore, PW1 admitted that he was literate person, who had got executed the documents mentioned above with his free will and volition and he had also gone to the Sub Registrar's Office, where the documents were registered and there was no threat from anyone. However, he had stated that he has not received the consideration, not even a single penny from the defendant.
28.PW3 Sh. Dharmender Singh was the Sub Registrar at the relevant time, when the plaintiff executed the cancellation of GPA and will documents. He in his cross CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 25/46 26 examination clarified the process of registration of documents before the sub Registrar. He stated that in the year 2004, the process was that after depositing the fee, the document was presented and the parties admit their execution of the document, thereafter parties collect their cash receipt for the purpose of collecting the registered document. He stated that presentation means that the parties are identified and then admission of execution of the registered document takes place. It also supports the plea of the defendant that said documents were properly executed before the Sub Registrar i.e. GPA, which is EX.PW1/D7, as the parties are bound to admit the execution of the document(s) before the Sub Registrar before the document is actually registered.
29.PW4 Sh. Manoj Tyagi is a witness of hearsay, therefore his testimony was not of much relevance in this regard, that is the, fact in issue.
CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 26/46 27
30.PW5 Sh. H. K. Babbar ADVocate has also supported the plea of the defendant, regarding the execution of the documents dated 24.05.2000. He stated in his cross examination that there was no pressure on Sh. V. P. Tyagi, while executing the documents dated 24.05.2000.
31.DW1 has also appeared in the witness box and has reiterated the contents of his affidavit. He stated in his cross examination that the agreement to sell, GPA, receipt and possession letter of the property in question were also got prepared by him on 24.05.2000 and same were executed by Sh. V. P. Tyagi. He further stated in his cross examination that Sh. V.P. Tyagi had taken Rs.15,00,000/ lacs from him and he returned his money. He is in possession of those documents, which were got executed by Sh. V. P. Tyagi on 24.05.2000. He returned the documents dated 24.05.2000 to Sh. V. P. Tyagi, but he did not accept the same, therefore he is in possession of those documents. He also stated that he had sold his CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 27/46 28 land in Village Hastsal. He further stated in his cross examination that he used to file income tax returns but he could not tell what was his estimated income for the year 200910. He does not know as to how much income, he had shown in his income tax returns from 01.04.2003 to 31.03.2004 and thereafter, his cross examination was deferred and he was directed to bring the aforesaid documents dated 24.05.2000 but he stated on the next date of hearing that he had not brought those documents and stated that those documents were not in his possession and he had already returned the documents after receiving the amount of Rs. 15,00,000/ and that he was confused on the last date of hearing and stated that he could bring those documents dated 24.05.2000 as the date 24/05 is common in both the cases i.e. 24.05.2000 and 24.05.2004. In his cross examination, he stated that he does not know on which date, month or year, he had paid Rs. 15,00,000/ and he also does not know on which date, month or year, he CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 28/46 29 had received Rs. 15,00,000/. He further stated that he had paid Rs. 20,00,000/ from his house, as he had sold his land in Village Hastsal. He did not know for how much consideration, the land was sold by him in the Village Hastsal. He did not know whether he informed his chartered accountant about the sale of land in village Hastsal. He did not know whether he had shown the transaction of purchase of the suit property in the books of accounts. He stated that Sh. V. P. Tyagi returned Rs.15,00,000/ in cash.
32.DW3 Sh. Nand Kishore Tyagi is the another witness examined on behalf of the defendant, who is the attesting witness of the said documents dated 24.05.2004. His signatures appear on all the documents, which are Ex.PW1/D3 to Ex.PW1/D7. He has also deposed categorically in his affidavit that the defendant had purchased the suit property for a consideration of Rs. 20,00,000/ from the plaintiff and CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 29/46 30 defendant had also paid Rs. 20,00,000/ as consideration, which the plaintiff had received after which he had executed those documents. He also stated in his cross examination that Sh. V. P. Tyagi was in need of money before one or two days of the date of execution of the documents. Therefore, he was aware of the sale / purchase of the suit property and Sh. V. P. Tyagi had come with Sh. Om Prakash Saini and Sh. Om Prakash Saini requested him that Sh. V. P. Tyagi was in need of money and wanted some arrangements for the same. He prepared the defendant to purchase the suit property from the plaintiff and the deal was finalized on 22.05.2004 in his presence. Prior to 23 days from 22.05.2004, Sh. V. P. Tyagi and Sh. O. P. Saini came to him and stated that Sh. V. P. Tyagi was in need of money. In lieu of that, Sh. V. P. Tyagi agreed to to sell the suit property to Sh. Om Prakash Saini. The defendant made the payment in the denomination of Rs.500/ and Rs. 1000/ notes only at the house of Sh. CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 30/46 31 Om Prakash Saini at 10:30 am and though the receipt was prepared later on, in the office of Sub Registrar, Janak Puri, New Delhi, where they had gone after the payment of consideration.
33.The onus to prove this issue was upon the plaintiff that he had not received any consideration from the defendant for the execution of said documents dated 24.05.2000. Both DW1 and DW3 (an attesting witness) had stated that consideration of Rs. 20,00,000/ was paid to the plaintiff. It may be that the defendant has not been able to prove any documentary evidence in support of the payment of Rs. 20,00,000/ by way of withdrawal from the bank or the statement of account so show that said amount was paid in cash. Once the defendant stated so, it was for the plaintiff to disprove that he had not received any consideration from the defendant for execution of the documents dated 24.05.2000. The burden was upon the plaintiff to show that said CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 31/46 32 transaction was a paperless or a sham transaction, merely because there was an earlier paperless transaction dated 24.05.2000, which has been admitted by DW1 to be without consideration does not affect or prove that transaction dated 24.05.2000 was also a sham transaction. It may be that the earlier transaction may have been entered into between the parties for some other ulterior motives but there is no evidence that the second transaction also lacks consideration. The plaintiff has also failed to show as to how he was coerced or misrepresented by the defendant in executing the documents dated 24.05.2004. The circumstances of said alleged misrepresentation has been neither pleaded nor proved rather PW1 admitted in his cross examination that said documents were executed out of his own free will and volition and were executed after going through the same.
34.Ld. counsel for the plaintiff has taken another plea that CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 32/46 33 the agreement to sell dated 24.05.2004, after amendment of the Stamp Duty Registration and Court Fees with effect from July 2002 in Delhi, had to be compulsorily registered, as in agreement to sell of immovable property, where a possession of the premises is also delivered under the part performance, the same can only be done by a registered document bearing prescribed stamp duty i.e. 90% of the total agreed sale consideration and plea of part performance cannot be taken in the absence of said registered document. The proposition of law propounded by Ld. Counsel for the plaintiff relying upon judgment "167 (2010) DLT 806" is not in dispute. Even if the said agreement to sell Ex.PW1/D5, which was admittedly executed on 24.05.2004, after the amendment of the Registration Act as well as the Stamp Act in Delhi was to be compulsorily registered after paying requisite stamp duty i.e. 90% of the total consideration amount, as in the said agreement to sell, it is also mentioned that the possession of the CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 33/46 34 premises has also been delivered in part performance to the defendant. The same in my respectful view will not effect the outcome of the present case as its affect only would have been that if the defendant would have been in possession of the suit property pursuant to said agreement to sell in part performance of the agreement to sell, then he would not have been able to protect his possession in suit for ejectment filed by the plaintiff, till he succeeded in perfecting his title in the suit for specific performance, after the execution of the conveyance deed in his favour. In that case, the defendant would have had no right to remain in occupation of the premises or to retain his possession merely because of the agreement to sell coupled with the possession of the premises in part performance of the agreement to sell.
35.The counsel for the plaintiff has also relied upon Section 33 - 35 of the Indian Stamp Act, on the ground that agreement to sell Ex.PW1/D5 was not properly stamped CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 34/46 35 therefore it was required to be impounded compulsorily. The said argument of the Ld. Counsel for the plaintiff is also without any substance in view of the aforesaid discussion. Even otherwise, as per Section 36 of the Indian Stamp Act, whereby once any document or instrument has been admittedly in evidence, such admission shall not be called in question at any stage of the same suit or proceedings, on the ground that the instrument has not been duly stamped. In any case, the said document had been exhibited during the cross examination of PW1 as Ex.PW1/D5, which was a photocopy and the original of the same was never filed in the court, therefore the question of impounding the same, did not arise for the consideration of the court at the time when the said document was exhibited. In view of the aforesaid discussion, since the plaintiff has failed to prove that the documents mentioned above i.e. GPA, agreement to sell, possession letter, receipt, Will, etc. dated 24.05.2004 were executed without any CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 35/46 36 consideration and under coercion and mis representation. The plaintiff is not entitled to the relief of declaration claimed in para no. 20(i) of the suit.
36. Regarding the relief of declaration claimed in para no. 20 (ii) of the suit, since there is a cloud on the title of the plaintiff after the execution of aforesaid documents dated 24.05.2004, it follows as a corollary to the same that if the document executed by the plaintiff i.e. GPA, agreement to sell, possession letter, receipt, Will, etc. dated 24.05.2004 are valid and subsisting, whatever their effect may be in law, than the plaintiff cannot be declared as the owner of the suit property, as doing so would indirectly amount to declaring that the said documents dated 24.05.2004 are void and were not executed by the plaintiff and would be contrary / diametrically opposite to the first conclusion reached by this court. Therefore, the plaintiff is also not entitled to the relief of declaration as claimed in para no. 20 (ii) of CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 36/46 37 the plaint. As a resultant, issue no. 4 is decided in favour of the defendant and against the plaintiff. ISSUE NO. 5
37.The plaintiff has also prayed for a decree of the permanent injunction in his favour and against the defendant, thereby restraining the defendant, his agents, servants, etc. from forcibly dispossessing or interfering in any manner in his favour in the peaceful use and enjoyment of the suit property. The onus to prove this issue was also upon the plaintiff. The plaintiff had alleged in the plaint that the defendant had forcibly tried to take the possession of the suit property on 15.11.2004 and thereafter on 16.11.2004 and he also lodged the complaint to the police on that day. The defendant (DW1) in his affidavit has admitted that he along with some respectable persons of the locality visited the house of the plaintiff on 15.11.2004 and asked the plaintiff to hand over the vacant and peaceful possession CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 37/46 38 of suit property at which the plaintiff stated misbehaving with him along with his son and he called 100 number and a PCR Van came there and the matter was reported to the police, vide DD No. 8A. The said DD has also been proved by Head Constable Balwan Singh from PS Vikaspuri who has appeared as DW2, which is Ex.DW2/A. The very fact that the above DD entry was recorded with respect to the quarrels between the parties on 15.11.2004, shows element of truth in the facts pleaded by the plaintiff with regard to the cause of action of dispossession on 15.11.2004. In any case, it is admitted case of the parties that the plaintiff is still in possession of the suit property and it cannot be said by any stretch of imagination that the plaintiff is a tress passer in the suit property. Whatever may be the rights of the plaintiff with regard to the suit property, after the execution of the documents dated 24.05.2004 in favour of the defendant, there being a cloud on his title as discussed above. At the same time, the defendant has CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 38/46 39 no right to dispossess the plaintiff from the suit property without adopting the due process of law and the defendant is having no right to interfere in peaceful enjoyment of the suit property by the plaintiff as shown in red colour in the site plan filed on the record. Therefore, the plaintiff has been able to make out a case for permanent injunction against the defendant, thereby restraining the defendant and his agents, etc. from forcibly dispossessing or interfering in any manner in his favour in the peaceful use and enjoyment of the suit property by him, as shown in the red colour in the site plan filed on the record (Ex.PW1/1).
RELIEF
38. In view of my findings on above issues, the suit of the plaintiff bearing no. 1128/2008 is partly allowed to the extent that the defendant and his agents are restrained from forcibly dispossessing the plaintiff without adopting due process of law or interfering in any manner in his CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 39/46 40 favour in the peaceful use and enjoyment of the suit property, as shown in the red colour in the site plant filed on the record (Ex.PW1/1). The rest of the reliefs prayed in the plaint of declaration are declined/dismissed, in view of my findings on the above issues.
Suit No. 1129/2008
39. My issues - wise findings in Suit No. 1129/2008 are as under : ISSUE NO. 2
40. Regarding this issue, the onus to prove this issue was upon the plaintiff as discussed above in Issue no. 4 in the Suit No. 1128/2008. The defendant had failed to prove that said documents dated 24.05.2004 were executed without any consideration and on the other hand, the plaintiff in this suit who was the defendant in the Suit No. 1128/2008 had been able to prove that suit property had purchased by him for consideration of Rs. CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 40/46 41 20,00,000/. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3
41. In view of my findings on Issue No. 4, the defendant had failed to prove that the documents dated 24.05.2004 i.e. GPA, Agreement to sell, Receipt, Will, etc., regarding the suit property, had been got executed from the defendant in the present suit, who was the plaintiff in the Suit No. 1128/2008 under coercion. This issue is decided in favour of the plaintiff in the present case, who was defendant in the Suit No. 1128/2008 and against the defendant, who was plaintiff in the Suit No. 1128/2008. ISSUES NO. 1, 4 and 5 (All these issues are taken up together as they are interconnected with each other) CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 41/46 42
42. It is a settled law as has been held in judgment 1997 RLR 287 relied upon by the counsel for the defendant in the present suit that "Section 53(A) can only be used as a shield and not as a sword by the bonafide tranferee in the possession and said transferee cannot file a suit on the basis of title". In this judgment, it was held in para no. 8 as under : "Therefore the doctrine of part performance in Section 53A was held not available to establish title to the property. In Seth Maneklal Mansukhlal V. M/s. Hormusji Jamshedji Ginwalla & Sons [(1950) SCR
751. this court has held that Section 53A of the act is only a partial importance of English doctrine of part performance.
The except when covered under Section 54 of the Act registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 42/46 43 to enforce it specifically as an equitable relief in a court of law.
In Technicians Studio Pvt. Ltd.
V. Lila Ghosh & Ors. [(1978) 1 SCR 516 AT 520], this court has held that it is well settled that Section 53A confers no active title on the tranferee in possession; it only imposes a statutory bar on the transferor."
43. In view of the law laid down in the aforesaid judgment that the agreement to sell does not create any interest or title in the suit property, it merely gives right to enforce it specifically as an equitable relief in the court of law. The present suit filed by the plaintiff only on the basis of agreement to sell cannot be maintainable, since mere agreement to sell the immovable property does not create any right in the property except to enforce the said agreement by filing a suit for specific performance. It has been held in Judgment AIR 1981 Delhi 291 that in fact no right arises in favour of the agreement purchaser, CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 43/46 44 not even after passing of a decree of specific performance and till conveyance deed in accordance with law and in pursuance thereto is executed. In view of the said judgment, it is clear that no right is conferred in the suit property in favour of the plaintiff till the passing of a decree of specific performance by court of competent jurisdiction or till the conveyance deed with regard to the suit property is executed in his favour, till that time, the plaintiff has no right to file a suit for possession on the basis of the agreement to sell. Further, law in this regard has been recently reiterated by Hon'ble Supreme Court of India in judgment "2012 (1) SCC 656, Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another", where it has been held that immovable property can only be transferred / conveyed by a deed of conveyance (sale deed) duly stamped / registered, as per law and GPA sales / SA / GPA / living will transfers neither convey any title nor do they amount to transfer of, or create any interest in immovable property except to CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 44/46 45 the limited extent of Section 53A of The Transfer of Property Act.
44.In these circumstances, it cannot be said that the plaintiff had any cause of action for filing the present suit on the basis of agreement to sell, as discussed above. Consequently, issue no. 1 is decided in favour of the defendant and against the plaintiff.
45.Since the plaintiff is not entitled to a decree of possession on the basis of agreement to sell, as it does not create any right, title or interest in the suit property in favour of the plaintiff. Therefore the relief as claimed in Para no. (i) of the prayer clause of the plaint, cannot be granted. Therefore issue no. 4 is also decided in favour of the defendant and against the plaintiff. It follows as a corollary to the Issue No. 4, since plaintiff is not entitled to a decree of possession, there is no question of mesne profits / damages, at whatever rate including at rate Rs. CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 45/46 46 10,000/, as prayed by the plaintiff in the plaint. Therefore, in view of the above discussion, issue no. 5 is also decided in favour of the defendant and against the plaintiff.
RELIEF
46.In view of the discussion on the aforesaid issues, the suit of the plaintiff Sh. Om Prakash Saini is not maintainable, same is dismissed with no order as to costs. Decree sheet be prepared accordingly.
47.File be consigned to the record room. ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 16.04.2012 ADJ(Central03)/Delhi CS NO. 1128/2008 Sh. V. P. Tyagi Vs. Sh. Om Prakash CS NO. 1129/2008 Sh. Om Prakash Vs. Sh. V. P. Tyagi 46/46