Delhi District Court
Gopal Singh vs Narain Das Thapar on 20 December, 2013
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR
DIVISION, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No.357/13
ID No. 02401C0629202007
Gopal Singh
S/o late Sh. Dharam Singh
R/o B16 (Front Side),
Saraswati Garden,
New Delhi. ............. plaintiff
vs.
1.Narain Das Thapar S/o late Sh. Amir Chand Thapar
2. Naresh Kumar Thapar S/o Narain Das thapur Both R/o 34/2, East Patel Nagar, New Delhi - 110 008.
3. Punjab National Bank Through its Chief Manager, 1517, Tolstoy House, Tolstoy Marg, New Delhi - 110 001.
4. Madan Mohan S/o Sh. Chaman Lal
5. Smt. Raj Kumari W/o Sh. Madan Mohan D/o Sh. Trilok Chand Suit No. 357/13 1/28 Gopal Singh vs Narain Dass Thapar & ors.
Both R/o G40, Andha Mughal Colony,
Delhi. ................ defendants
Date of Institution of Suit : 26092007
Date of reserve for judgment : 07082013
Date of announcement of Judgment : 20122013
SUIT FOR CANCELLATION, DECLARATION,
MANDATORY AND PERMANENT INJUNCTION
Judgment :
1. The brief facts, as per averments of the plaint, are that the plaintiff is owner of plot bearing no. 66, BlockD, Mansarovar Garden, Delhi measuring 250 sq. yards (hereinafter referred to as the suit property) which was purchased in the year 1973 from its erstwhile owners i.e. the defendant no. 4 & 5 by way of legal title documents and had taken over the physical possession of the suit property. That after the purchase of the suit property, the same was got mutated in the name of the plaintiff in the records of MCD and the plaintiff has been making payment of the development charges and property tax in respect of the suit property. That the plaintiff came to know on 17.06.2007 that the officials from the Suit No. 357/13 2/28 Gopal Singh vs Narain Dass Thapar & ors. office of the defendant no. 3 had visited the suit property on 15.06.2007 and on inquiry, it was revealed that the suit property is involved in some loan transaction and the defendant no. 3 had advanced a loan to one M/s Exim International having its office at G55, Palika Place, Panchkuiya Road, New Delhi against the suit property on the basis of alleged sale deed dated 01.06.1980 purported to have been executed by the defendant no. 1 in favour of the defendant no. 2 who is one of the partners of M/s Exim International. That the underlined basis of the present suit is that the said sale deed dated 01.06.1980 is manipulated and forged document and confers no right, title or interest upon the defendant no. 2 and as such the defendant no. 2 was not competent to mortgage or create any interest on the suit property on the strength of the said sale deed. That due to the conspiracy hatched by the defendant no. 1 & 2 and officials of the defendant no. 3 and also other partners of M/s Exim International, an attempt has been made to grab the property of the plaintiff. That the plaintiff also apprehends that the defendant no. 3 may dispossess the plaintiff Suit No. 357/13 3/28 Gopal Singh vs Narain Dass Thapar & ors. from the suit property and sell, alienate or create any third party interest over the suit property bearing no. G55, Palika Place, Panchkuiya Road, New Delhi. The plaintiff has prayed for a decree in favour of plaintiff and against the defendants for cancellation of sale deed dated 01.06.1980 executed by the defendant no. 1 & 2 and for declaration as forged and fabricated document and also prayed for mandatory injunction in favour of the plaintiff and against the defendants to destroy the sale deed dated 01.06.1980 permanently to avoid future misuse of the same. The plaintiff has also prayed for a decree of permanent injunction restraining the defendants from claiming any right, title or interest or creating any 3rd party interest whatsoever on the basis of sale deed dated 01 061980 and from interfering in the peaceful possession of the plaintiff in the suit property.
2. WS filed on behalf of the defendant no.3 wherein it is stated that the the present suit is barred in view of Section 34 of DRT Act. It has also been stated that defendant no. 2 had taken a loan on the strength of sale deed dated 01.06.1980 from the Suit No. 357/13 4/28 Gopal Singh vs Narain Dass Thapar & ors. defendant no. 3 against the suit property and an interest was created therein in favour of the defendant no. 3 bank and the possession of the suit property has been taken over by the defendant no. 3 bank under SARFAESI Act. It is also stated that the present suit is not maintainable as it is time barred because limitation begins from the date when the disputed sale deed got registered i.e. 01.06.1980. It is further stated that the receipt of the amount of consideration does no create any right, title or interest of the plaintiff in the suit property. That the claim made on the basis of testamentary instrument i.e. Will which comes into effect only after the death of testator. In the present suit, the plaintiff has claimed on the suit property only on the basis of the Will of living testator who are the defendant no. 4 & 5. It is admitted that the officials of the defendant no. 3 had left their particulars with the neighbours. It is further stated that the sale deed dated 0106 1980 is registered in favour of the defendant no. 2 and hence, he is true and legal owner. That loan was advanced by the defendant no. 3 to M/s Exim International in which defendant no. 2 is a Suit No. 357/13 5/28 Gopal Singh vs Narain Dass Thapar & ors. partner. Rest of the averments of the plaint have been denied.
3. Joint WS was filed on behalf of the defendant no. 4 & 5 wherein it is stated that there is no cause of action to file the present suit against them and the same is liable to be dismissed against them. That the present suit is bad for misjoinder of parties as the answering defendants are neither proper nor necessary parties. That the answering defendants have neither right, title or interest in the suit property nor are in possession of the same as the suit property was sold to the plaintiff long back in the year 1973 and legal title documents were executed in his favour by them and the plaintiff was put in physical possession of the suit property.
4. Replication filed on behalf of the plaintiff to the WS of the defendant no. 3 wherein averments made in the plaint have been reiterated and the averments made in the WS have been denied.
5. From the pleadings of the parties following issues were framed for trial vide order dated 05122007 :
1. Whether the suit is within limitation? OPP Suit No. 357/13 6/28 Gopal Singh vs Narain Dass Thapar & ors.
2. Whether this court has no jurisdiction to try and entertain the present suit? OPD
3. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
4. Whether the Sale Deed dated 01061980 is not a legal and valid document? OPP
5. Whether the plaintiff is entitled to the relief of declaration and cancellation of Sale Deed dated 01061980? OPP
6. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction, as prayed for? OPP
7. Relief.
6. In order to substantiate his case, the plaintiff examined PW1T. R. Chug, PW2S. C. Guru, himself as PW3 and PW4Naveen.
7. Sh. Madan Mohan has filed his affidavit on behalf of defendants no. 4 and 5 and examined as DW1. He was cross examined on behalf of the plaintiff. No evidence has been led on behalf of the defendant no. 3.
8. I heard final arguments of ld. Ld. counsel for the Suit No. 357/13 7/28 Gopal Singh vs Narain Dass Thapar & ors. plaintiff and ld. Ld. counsel for the defendant no. 3.
9. Written arguments and case law in support of his submissions were filed on behalf of the plaintiff. Written arguments were also filed on behalf of the defendant no. 3.
10. I considered the submissions of Ld. counsel for the plaintiff, Ld. counsel for the defendants, evidence of the parties and case laws filed by the Ld. counsel for the plaintiff. My findings on issues are as under :
Findings on issue no. 1 : Whether the suit is within limitation? OPP
11. It is submitted by the Ld. counsel for the plaintiff that the plaintiff has categorically stated that the sale deed dated 01 061980 Ex. PW3/14 came to the knowledge of the plaintiff when he visited the office of the defendant no. 3 consequent upon the visit of the bank official at the suit property on 17062007. It is further submitted that the suit was filed on 13072007 and as such the suit of the plaintiff is within the period of limitation. It is further submitted that the defendant no. 3 has failed to bring anything on record to show that the sale deed dated 01061980 Ex. PW3/14 Suit No. 357/13 8/28 Gopal Singh vs Narain Dass Thapar & ors. was within the knowledge of the plaintiff prior to June, 2007.
12. On the other hand, it is submitted by the ld. Ld. counsel for the defendant no. 3 that the plaintiff herein had filed objection vide IA No. 438/2007 in the O. A. No. 19/03 before Hon'ble DRTII which was dismissed vide order dated 15072008. Ld. counsel for the defendant no. 3 has failed to show anything from the record that the plaintiff was having knowledge of the sale deed dated 01061980 prior to June, 2007. It is submitted by the Ld. counsel for the defendant no. 3 that the period of limitation would begin from the date when the sale deed was got registered i.e. 01061980.
13. I considered the submissions of Ld. counsel for the plaintiff and Ld. counsel for the defendant no. 3 as submitted above. I agree with the submissions of Ld. counsel for the plaintiff that the period of limitation would be three years from the date of knowledge of the plaintiff about the sale deed dated 01061980 and not from the date of its registration as per Article 58 of Schedule I of the Limitation Act, 1963. Since, nothing has been Suit No. 357/13 9/28 Gopal Singh vs Narain Dass Thapar & ors. brought on record on behalf of the defendant no. 3 to prove that the plaintiff had knowledge of sale deed prior to 170612007, therefore, I am of the considered opinion that the suit of the plaintiff is within limitation. This issue is decided in favour of the plaintiff. Findings on issue no. 2 : Whether this court has no jurisdiction to try and entertain the present suit? OPD
14. It is submitted by the Ld. counsel for the plaintiff that that the defendant no. 3 has taken the plea in its WS that the jurisdiction of this Hon'ble Court is barred in view of Section 34 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 which prohibits jurisdiction of the civil court. It is further submitted that there is no such Section 34 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 whereby jurisdiction of the civil court is barred and it is the section 34 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is further submitted that in the present case, the plaintiff has stated that a fraud has been perpetuated and as such this Hon'ble Court has got the jurisdiction in view of the judgment namely Mardia Chemicals Suit No. 357/13 10/28 Gopal Singh vs Narain Dass Thapar & ors. Ltd. vs. Union of India, reported as AIR 2004 SC 2371, in which it has been held that civil court jurisdiction can be invoked in case of fraud. It is further submitted that even in another judgment namely Industrial Investment Bank of India vs. Marshala Power of Telecom (I) Ltd. reported as JT 2006 (10) SC 366, it has been held that the civil court can grant injunction against the orders grant by DRT in case of fraud. It is further submitted that in view of the abovesaid judgments as well as judgment of Arasa Kumar vs. Nallammal, reported as II (2005) Banking Cases 127, this Hon'ble court has got the jurisdiction to try and adjudicate upon the present suit. It is further submitted that the relief sought is with regard to declaration & cancellation of sale deed dated 0106 1980 as well as for direction to destroy the said sale deed in view of Section 31 of the Specific Relief Act and it is the power of the civil court only to cancel the title deed only and thereafter to direct the concerned SubRegistrar to make endorsement for cancellation of the said document in its record to prevent misuse of the said document and the relief claimed before this Hon'ble Court Suit No. 357/13 11/28 Gopal Singh vs Narain Dass Thapar & ors. can not be granted by the DRT as the only issue before the DRT is to adjudicate whether the borrower is liable to pay debt or not to the bank and who is liable to pay debt or not to the bank and to what extent and what rate and as such the relief of title of the property can only be decided by the civil court.
15. On the other hand, Ld. counsel for the defendant no. 3 submits that the present suit before this Hon'ble Court is barred under Section 34 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993.
16. I considered the submissions of Ld. counsel for the plaintiff and Ld. counsel for the defendant no. 3 as submitted above.
17. In case law Mardia Chemicals Ltd. vs. Union of India (supra), it has been held by the Hon'ble supreme Court that:
"to a limited extent, any matter related to questioning the proceedings under the SARFERSI Act 2002, the civil court jurisdiction can be invoked to limited extent for example in case of fraud".
Suit No. 357/13 12/28 Gopal Singh vs Narain Dass Thapar & ors.
18. In case law namely Industrial Investment Bank of India vs. Marshala Power of Telecom (I) Ltd. (supra), it has been held that :
"injunction restraining the enforcement of orders passed by the DRT having jurisdiction to pass such orders can not normally be granted unless it is a fraud or the existence of some such vitiating factor is established or primafacie made out".
19. In case law namely Arasa Kumar vs. Nallammal (Supra), it was held that :
"the bar under Section 34 of SARFEASI Act, 2002 is not absolute and is subject to certain conditions :
I) that the parties who filed the suit must be a party to the liabilities created in favour of the secured creditor;
II) the disputes between the parties could be resolved under the provisions of the Act itself;
III) that if the claim made by the parties is outside the jurisdiction of the Debt Recovery Tribunal or the appellate Tribunal or any action taken or to be taken under this Act and also under the Recovery of Debt Due to Banks and Financial Institution Act, 1993 and the Suit No. 357/13 13/28 Gopal Singh vs Narain Dass Thapar & ors.
dispute raised by the parties can be adjudicated by any of the Tribunal or authority, created under the Act or under any other Act the right of the parties to approach the Civil court for appropriate relief can not be deprived and taken away".
20. Ld. counsel for the plaintiff has relied upon case laws namely Mardia Chemicals Ltd. vs. Union of India (supra), Industrial Investment Bank of India vs. Marshala Power of Telecom (I) Ltd. (supra), and Arasa Kumar vs. Nallammal (Supra), in support of his arguments that this court has jurisdiction to entertain the present suit as the case of the plaintiff is that the fraud has been made and in the present case civil court has jurisdiction to entertain the dispute seeking relief for cancellation and injunction.
21. It is the case of the plaintiff that defendants no. 1 and 2 has made fraud for preparing sale deed dated 01061980 and taking loan from defendant no. 3 by mortgaging the suit property with the defendant no. 3. The plaintiff has sought relief of cancellation of said sale deed dated 01061980 and declaring the Suit No. 357/13 14/28 Gopal Singh vs Narain Dass Thapar & ors. same as forged, fabricated, false and manipulated document as void abinitio. The plaintiff has further sought relief of mandatory and permanent injunction and therefore the relief claimed by the plaintiff in the present suit can only be granted by the civil court. Therefore, in view of ratio of case laws namely Mardia Chemicals Ltd. vs. Union of India (supra), Industrial Investment Bank of India vs. Marshala Power of Telecom (I) Ltd. (supra), and Arasa Kumar vs. Nallammal (Supra), and the facts pleaded in the plaint by the plaintiff, I am of the view that civil court has jurisdiction to entertain the present suit. This issue is decided in favour of the plaintiff and against the defendants. Findings on issue no. 3 : Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
22. The onus of proving this issue was upon the defendants. No evidence has been led on behalf of the defendants. Ld. counsel for plaintiff submits that the sale consideration mentioned in the sale deed dated 01.06.1980 Ex. PW1/14 is Rs. 37,500/ and the plaintiff has affixed the court fee on Suit No. 357/13 15/28 Gopal Singh vs Narain Dass Thapar & ors. the consideration value of Rs. 37,500/ for cancellation and Rs. 200/ for declaration of the sale deed and Rs. 130/ for the relief of injunction and thus the suit has been properly valued for the purpose of court fee and jurisdiction as per the Section 7 of the Court Fees Act and as per the judgment of Division Bench of the Hon'ble Delhi High Court and therefore the objection in this regard is without any basis.
22. I consider the submissions of Ld. counsel for plaintiff as submitted above. As per Section 7 (iv) (c) of Court Fees Act 1870, in a suit for a declaratory decree and consequential relief, the plaintiff shall state the amount at which he values the relief sought. In case law namely Shiela Devi Vs. Kishan Lal Kalra, ILR (1974) 2 Delhi (FB) 491, It has been held :
"That paragraph IV of Section 7 of the Court Fees Act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the reliefs he seeks, subject, however to any rules made U/s 9 of the Suit Valuation Act and the court has no power to interfere with the plaintiff's valuation.
Suit No. 357/13 16/28 Gopal Singh vs Narain Dass Thapar & ors.
23. In case law namely S.C. Malik Vs. Surener Nath Puri 1991 RLR (Note 85), it has been held that "if the plaintiff files a suit for declarations and injunctions and the reliefs claimed are wholly dependent of each other, then the suit is governed by Section 7 (iv) (c) of the Court Fees Act.
24. In view of the ratio of case law Shiela Devi Vs. Kishan Lal Kalra (supra) and S.C. Malik Vs. Surender Nath Puri (supra), and in view of the fact that the Ld. counsel for defendant no. 3 has not argued as to how the plaintiff has not correctly valued the suit for the purpose of court fees and jurisdiction, I am the view that the plaintiff has correctly valued the suit for the purpose of court fee and jurisdiction. This issue is decided accordingly.
25. In my view, it would be appropriate to give findings on issues no. 4 and 5 together. Therefore, findings on issue nos. 4 and 5 are given together.
Finding on issue no. 4 :
Whether the sale deed dated 01.06.1980 is not a legal and valid document? OPP Suit No. 357/13 17/28 Gopal Singh vs Narain Dass Thapar & ors.
and Findings on issue no. 5 : Whether the plaintiff is entitled to the relief of declaration and cancellation of Sale Deed dated 01061980? OPP It is submitted by Ld. counsel for plaintiff that the suit property was, admittedly, initially developed by the colonizer M/s. Bharat Builders and the plaintiff and the defendant no. 3 are claiming transfer of title from M/s. Bharat Builders. It is further submitted that the sale deed dated 20.12.1969 Ex. PW3/2 of the suit property was executed by M/s. Bharat Builders in favour of Darshan Kumar and thereafter, on the basis of the said sale deed, another sale deed dated 20.05.1970 was executed by said Sh. Darshan Kumar in favour of the defendants no. 4 and 5 who have subsequently transferred the title in favour of the plaintiff by virtue of documents Ex. PW3/5 and Ex. PW3/6. It is further submitted that the defendants have failed to prove the devolution of title from M/s. Bharat Builders in favour of the defendant no. 2. It is further submitted that the defendant no. 3 has stated in its written that the suit property was purchased by the defendant no. 1 from M/s. Bharat Builders vide receipt no. 5353 and the defendant no. 1 Suit No. 357/13 18/28 Gopal Singh vs Narain Dass Thapar & ors. thereafter executed sale deed dated 01.06.1980 Ex. PW3/14 in favour of defendant no.2, his son and defendant no. 2 created interest in favour of the defendant no. 3 on the basis of said sale deed and the loan was advanced to the defendant no. 2, thereby the claim of the defendant no. 3 having right, title and interest in the property is only on the basis of one receipt no. 5353 which was never shown the day of light or filed on record which shows that there is no transfer of title from M/s Bharat Builder in favour of the defendant no. 1 and so the defendant no. 1 was not competent to transfer any title in favour of the defendant no. 2 or subsequent upon the defendant no. 3. It is further submitted that on the other hand the plaintiff is in possession of the original title deeds and document wherebys the original owner Bharat Builder has transferred the title by way of sale deed in favour of Darshan Kumar, who transferred the title in favour of the defendants no. 4 and 5 who have subsequently transferred the title in favour of the plaintiff and therefore, the sale deed dated 01061980 is not a legal and valid document and is without any consideration. Ld. Suit No. 357/13 19/28 Gopal Singh vs Narain Dass Thapar & ors. counsel for the plaintiff has relied upon the case law namely O.P. Aggarwal & anr. vs. Akshay Lal & ors., 188 (2012), Delhi Law Times 525, in support of his arguments that the persons having agreement to sell, power of attorney etc. have a right and title to have claim of possession over the property as the right stands transferred in favour of the person having such documents executed in his favour. He has also relied upon case law namely Hardip Kaur vs. Kailash & anr., 193 (2012) DLT 168 in support of his arguments that the documents such as GPA, Agreement to Sell, Will etc., the property was transferred and thus the plaintiff is protected Under Section 53A of the Transfer of Property Act. He further submits that the defendants no. 4 and 5 have transferred all their rights in favour of the plaintiff and by virtue of Section 202 of Contract Act, the plaintiff has right and entitlement as an owner with respect to the suit property and as such the plaintiff is entitled to the relief of declaration and cancellation of sale deed dated 01 061980. It is further submitted that the unrebutted deposition of the plaintiff is sufficient to prove his case and ld. Counsel for the Suit No. 357/13 20/28 Gopal Singh vs Narain Dass Thapar & ors. plaintiff has cited case law reported in 2011 II AD Del 418.
26. On the other hand, it is submitted by the Ld. counsel for the defendant no. 3 that the plaintiff has filed frivolous suit only on the basis of alleged GPA executed by the defendants no. 4 and 5 in favour of Amar Kaur wife of Sh. Gopal Singh, the plaintiff and the said power of attorney does not confer any right, title and interest in the suit property and the said power of attorney is not in favour of the plaintiff and as such he does not have locus to file the present suit. It is further submitted that the mutation of the suit property was done in favour of the defendant no. 2 as per mutation dated 14072000.
27. I considered the submissions of Ld. counsel for the plaintiff and Ld. counsel for the defendant no. 3 as submitted above. It is an admitted fact that the original owner of the suit property was Bharat Builder and Colonizers. It is mentioned in the sale deed Ex. PW3/14 dated 01061980 that the suit property was purchased by Sh. Narainn Dass, the defendant no. 1 from Bharat Builders & Colonizers vide receipt no. 5353 and the Suit No. 357/13 21/28 Gopal Singh vs Narain Dass Thapar & ors. defendant no. 1 had sold the suit property vide sale deed Ex. PW 3/14 to Sh. Naresh Kumar Thapar, his son, the defendant no. 2. The said receipt no. 5353 has never been produced in the court by the defendant no. 3. No sale deed if any executed by M/s Bharat Colonizers in favour of defendant no. 1, filed by the defendants. Therefore, it is clear that the suit property was never purchased by the defendant no. 1 from M/s Bharat Builders & Colonizers. The defendant no. 3 has failed to prove that the suit property was purchased by the defendant no. 1 from M/s Bharat Builders & Colonizers. Therefore, it is held that the defendant no. 1 was not having any right, title or interest in the suit property and was not a competent to transfer any right, title or interest in favour of the defendant no. 2, his son, by way of sale deed Ex. PW3/14 dated 01061980. Therefore, I am of the view that the sale deed Ex. PW3/14 is not a legal and valid document and it was a bogus / sham document created /prepared by the defendant no. 1 and the defendant no. 2 just to use it for taking loan from the defendant no.
3. Suit No. 357/13 22/28 Gopal Singh vs Narain Dass Thapar & ors.
28. It was the duty of the defendant no. 3 while granting credit facility to the defendant no. 2 to ascertain as to whether the defendant no. 2 has right, title or interest in the suit property bearing no. D66, Mansarover Garden, New Delhi. The defendant no. 3 must have been careful as to whether the defendant no. 1 has right, title or interest in the suit property bearing no. D66, Mansarover Garden, New Delhi by purchasing it through a sale deed from M/s Bharat Builders & Colonizers which was the owner of the suit property as mentioned in the sale deed Ex. PW3/14. It is very much clear that the officials of the defendant no. 3 remained highly negligent while granting credit facility to the defendant no. 2 on the basis of equitable mortgage of the suit property bearing no. D66, Mansarover Garden, New Delhi through sale deed Ex. PW3/14 as in the said sale deed, it has been itself mentioned that the suit property was purchased by the defendant no. 1 from M/s Bharat Builders & Colonizers vide receipt no. 5353. Even the said receipt has not been filed by the defendant no. 3 which shows that even no enquiry was made by the officials of the Suit No. 357/13 23/28 Gopal Singh vs Narain Dass Thapar & ors. defendant no. 3 about the said receipt.
29. It is well settled principal of law that the mutation of the property in the name of any person in the MCD Office does not create any right or title in the said property. Therefore, the defendant no. 3 can not take advantage in any manner of the fact that the suit property was mutated in favour of the defendant no. 2 as per record of MCD.
30. DW1, Madan Mohan has stated in his affidavit that the suit property was sold to the plaintiff in the year 1973 and thereafter, he and his wife Smt. Raj Kumari were left with no right, title or interest in it. During crossexamination, he has stated that the suit property bearing no D66, Mansarover Garden, New Delhi was purchased from his earlier owner by virtue of sale deed Ex. PW3/3 dated 20051960 and PW3/2 is the sale deed executed by M/s Bharat Builders & Colonizers to Sh. Darshan Kumar Madan and and Sh. Darshan Kumar Madan sold the suit property to Madan Mohan and his wife Smt. Raj Kumari and thereafter they sold the suit property to the plaintiff vide agreement to sell, GPA, Suit No. 357/13 24/28 Gopal Singh vs Narain Dass Thapar & ors. Will and receipt. DW1 has proved by way of his evidence that the plaintiff has right, title or interest in the suit property.
31. In case law reported as 188 (2012) DLT 525 titled as O.P. Aggarwal & anr. vs. Akshay Lal & ors., it has been held that :
"the persons having documents such as agreement to sell, power of attorney, Will etc. do not strictly confer ownership rights as sale deed. However, such documents creates certain rights in a immovable property though not strictly ownership right entitling the person having document to claim possession of suit property as the right to suit property would stand transferred to the person in whose favour such documents have been executed.
32. In case law Hardeep Kaur vs. Kailash & anr., 193 (2012) DLT 163, it has been held that :
"by virtue of documents such as GPA, agreement to sell, Will etc., the property was transferred and thus the plaintiff is protected under Section 53A of the Transfer of Property Act and purchaser may not be classic owner as would be an owner under registered sale deed but surely he would have better rights / entitlement of possession then the person who is in actual and physical Suit No. 357/13 25/28 Gopal Singh vs Narain Dass Thapar & ors.
possession".
33. By the testimonies of PW3, Gopal Singh and DW1 Madan Mohan, and in view of ratio of case laws namely O.P. Aggarwal & anr. vs. Akshay Lal & ors. (supra) and Hardeep Kaur vs. Kailash & anr. (supra), I am of the view that the plaintiff has proved that the sale deed Ex. PW3/14 dated 0106 1980 is not a legal and valid document and as such issue no. 4 is decided in favour of the plaintiff. In view of my findings on issue no. 4, it is held that the plaintiff is entitled to the relief of declaration and cancellation of sale deed Ex. PW3/14 dated 01061980 and as such issue no. 5 is also decided in favour of the plaintiff. Issues no. 4 and 5 are accordingly.
Findings on issue no. 6 : Whether the plaintiff is entitled to the relief of permanent and mandatory injunction, as prayed for? OPP
34. It is prayed by the plaintiff that the defendants be directed to destroy the sale deed Ex. PW3/14 dated 01061080 to avoid future misuse of the same. It is also prayed that the defendants be restrained from claiming any right, title or interest or Suit No. 357/13 26/28 Gopal Singh vs Narain Dass Thapar & ors. selling, alienating, mortgaging, auctioning or to create interest in any manner whatsoever in the suit property shown specifically in red in the site plan on the basis of sale deed Ex. PW3/14 dated 01061980 and they be further restrained from interfering in the peaceful physical possession of the suit property. In view of my findings on issues no. 4 and 5, I am of the view that the plaintiff is entitled to the relief of mandatory and permanent injunction as prayed in the suit. This issue is decided accordingly.
RELIEF
35. In view of my findings on all the issues as above, the suit of the plaintiff is decreed for the relief of declaration and cancellation of sale deed dated 01061980 and it is declared that the sale deed Ex. PW3/14 dated 01061980 is forged, fabricated, false and manipulated document and is void abinitio and without consideration and the same is cancelled. The suit of the plaintiff is also decreed with the directions that the sale deed dated 0106 1980 be destroyed by the defendants no. 1 to 3 to avoid future misuse of the same and they are restrained from claiming any Suit No. 357/13 27/28 Gopal Singh vs Narain Dass Thapar & ors. right, title or interest or selling, alienating, mortgaging, auctioning or to create any 3rd party interest in any manner whatsoever in the suit property on the basis of sale deed dated 01061980. They are further restrained from interfering in the peaceful physical possession of the plaintiff over the suit property i.e. plot bearing no. 66, BlockD, Mansarover Garden, New Delhi and shown in red colour in the site plan Ex. PW3/1. Costs of the suit is also awarded. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance. Announced in the open court on the 20th day of December, 2013 (CHANDRA BOSE) Civil JudgeSenior Division Central District, Delhi.
Suit No. 357/13 28/28 Gopal Singh vs Narain Dass Thapar & ors.