Delhi District Court
Sanjay Kumar Gupta vs ).M/S Vivek Datta (Huf) on 29 April, 2023
IN THE COURT OF MS. RAJAT GOYAL, ADDL. SENIOR CIVIL
JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM-GUARDIAN
JUDGE, DISTRICT: SOUTH, NEW DELHI
Case No. 82277/16
SANJAY KUMAR GUPTA,
S/o Mr. S.L. Gupta,
R/o C-14, Shivalik Colony,
Malviya Nagar, New Delhi. ...........Plaintiff
Versus.
1).M/S VIVEK DATTA (HUF)
through its Karta,
Mr. Vivek Datta,
S/o Mr. N.P. Datta,
R/o Datta Farm,
Sultanpur, New Delhi.
2). OMVATI
W/o Mr. Sat Prakash.
3). SUNITA,
W/o Mr. Dheeraj Kumar,
Both R/o Sultanpur Colony,
Mehrauli, New Delhi. .......Defendants
SUIT FOR DECLARATION AND INJUNCTION
Date of institution of the suit : 23.01.2013
Date of reserving for judgment : 24.03.2023
Date of pronouncement of judgment : 29.04.2023
JUDGMENT
1. Briefly stated, case of the plaintiff is that plaintiff is the owner of the property admeasuring 1 Bigha, Mustatil No. 44, Killa no. 4 (min.), Village Mehrauli, Tehsil Hauz Khas, New Delhi (hereinafter referred CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 1 of 11 to as "suit property"). That suit property was purchased by plaintiff by registered sale deed dated 19.08.2000 from its erstwhile owner namely Mahesh Rai. That defendant no. 1 claims to have purchased property admeasuring 2 Bighas 19 Biswas vide one sale deed dated 22.08.2000. That the said sale deed is illegal and bogus. That defendant no. 2 and 3 also claim to have purchased suit property from the above mentioned Mahesh Rai vide another sale deed dated 22.08.2000. That the said sale deed is also illegal and bogus. That after execution of sale deed dated 19.08.2000 in his favour, plaintiff approached the concerned Tehsildar for mutation of suit property in his name. That on 12.08.2002, plaintiff was informed that suit property has already been mutated in favour of defendants vide order dated 23.09.2000 on the basis of sale deeds dated 22.08.2000. That the said sale deeds dated 22.08.2000 has been fraudulently executed by GPA holder of Mahesh Rai, which GPA holder is also the husband of defendant no. 3. That after execution of sale deed dated 19.08.2000 in favour of plaintiff, the said GPA holder did not have any right to execute subsequent sale deeds in favour of defendants. That plaintiff preferred an appeal against order of mutation dated 23.09.2000. The said appeal was filed before concerned Deputy Commissioner, South, u/s 13 of Punjab Land Revenue Act. That the said appeal was disposed off by the concerned ADM videe order dated 22.10.2012, stating that question of authenticity of sale deed can be decided only by civil courts. That sale deeds executed in favour of defendant no. 1 and defendant no. 2 & 3 are forged and fabricated and ought to be declared null and void as CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 2 of 11 GPA holder of Mahesh Rai had no authority to execute the said sale deeds. Hence, the present suit for declaration and injunction.
2. Defendants were served with the summons of the present suit. On appearance, written statement (hereinafter referred to as 'WS') was filed by defendants. It has been stated in the WS filed by defendants that present suit is barred by Section 34 and Section 41 (h) of Specific Relief Act as plaintiff is not in possession of the suit property. That this court has no pecuniary jurisdiction to entertain the present suit. That negative declaration cannot be sought by plaintiff, without seeking positive declaration. That suit property has not been identified by the plaintiff. That suit is barred by limitation. That defendant no. 2 & 3 have jointly purchased property admeasuring 1 Bigha from Mahesh Rai vide sale deed dated 22.08.2000. That present suit has been filed by plaintiff in collusion with one Sandeep Gupta. That original owner Mahesh Rai had transferred his rights in the suit property in favour of husband of defendant no. 4 namely Dheeraj vide agreement to sell and GPA dated 09.08.2000. That possession of the suit property was also transferred in favour of the said Dheeraj. That the said Dheeraj further sold one Bigha of property to defendant no. 2 & 3 and another 1 Bigha 19 Biswas to defendant no. 1 vide registered sale deeds dated 22.08.2000. That documents relied upon by plaintiff are forged and fabricated. That there is no merit in the present case and the same be dismissed. However, the said WS was filed belatedly and application of defendants for condonation of delay in filing the said WS was CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 3 of 11 dismissed vide order dated 22.10.2019 and WS filed by defendants was directed to be taken off the record and matter was fixed for plaintiff evidence.
3. In order to prove his case, plaintiff examined himself as PW1 and tendered into evidence his affidavit Ex. PW1/A, wherein averments made in the plaint were reiterated. He also relied upon various documents, such as sale deed dated 19.08.2000 (in favour of plaintiff) as Ex. PW1/1, certified copy of sale deed dated 22.08.2000 (in favour of defendant no. 1) as Mark A and copy of sale deed dated 22.08.2000 (in favour of defendant no. 2 & 3) as Mark B.
4. PW2A was the concerned witness from the Office of Sub-Registrar, Mehrauli, who brought original sale deeds dated 22.08.2000 and tendered them into evidence as Ex. PW2A/1 (OSR) and Ex. PW2A/2 (OSR). PW3 was the concerned witness from the office of LAC, South, who had brought record pertaining to appeal no. 87/2003 and tendered into evidence copy of appeal and order dated 22.10.2012 as Ex. PW3/1 and Ex. PW3/2, respectively. No other witness was examined by the plaintiff. Hence, vide order dated 23.02.2022, plaintiff evidence was closed and matter was listed for final arguments, as defence of defendants had been struck off vide order dated 22.10.2019.
5. It has been argued by Ld. Counsel for defendants that present suit is CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 4 of 11 hopelessly time barred and also that identity of suit property has not been established by plaintiff. On the other hand, no oral arguments were addressed by plaintiff, though written submissions were filed stating therein that issue of limitation has already been decided in favour of plaintiff vide order dated 22.08.2019 and that since registered sale deed in favour of plaintiff was executed prior in time, subsequently registered sale deeds dated 22.08.2000 must be declared as null and void.
6. I have heard the arguments and perused the record.
7. I shall first deal with the issue of limitation. Plaintiff has sought relief of declaration with respect to sale deeds dated 22.08.2000, along with relief of injunction for restraining the defendants from creating third party interest in the suit property. It is a matter of record that present suit was filed in the year 2013. Plaintiff has claimed that suit is within the period of limitation as after coming to know about execution of the said sale deeds dated 22.08.2000 in the year 2002, plaintiff challenged mutation in favour of defendants sanctioned vide order dated 23.09.2000 by preferring an appeal u/s 13 of Punjab Land Revenue Act before the concerned DM/ADM. It has further been contended by plaintiff that the said appeal was disposed off by the concerned ADM vide order dated 22.10.2012, by holding that issue of genuineness and validity of sale deeds can only be decided by civil courts. It is the case of plaintiff that the said period of time between 2003 and 2012, while CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 5 of 11 plaintiff was pursuing his remedy before concerned ADM, must be excluded from the period of limitation in accordance with Section 14 of Limitation Act, 1963. However, the said ground is devoid of any merit. Copy of the said proceedings preferred by plaintiff before concerned ADM was tendered into evidence by PW3 as Ex.PW3/1 and copy of order dated 22.10.2012 as Ex.PW3/2. Perusal of appeal filed by plaintiff before the concerned ADM shows that relief regarding declaration of sale deeds dated 22.08.2000 as null and void was never sought by plaintiff in the said appeal. In fact, the only relief souhgt by plaintiff in the said appeal was setting aside of order dated 23.09.2000 passed by the concerned Tehsildar, vide which suit property was mutated in favour of defendants on the basis of impugned sale deeds. Thus, relief sought by the plaintiff in the present suit was never sought by plaintiff in any proceedings before any forum, prior to filing of the present suit. Hence, plaintiff cannot seek benefit of Section 14 of Limitation Act for purposes of extending the period of limitation as far as present suit is concerned. It is also very pertinent to note here that the said appeal filed by plaintiff before the concerned ADM has not been disposed off till date and was only adjourned sine die vide order dated 22.10.2012 (Ex. PW3/2), till decision regarding validity of sale deeds in question is rendered by competent civil courts. Thus, since the said proceedings are still pending, it is absolutely futile for plaintiff to argue that benefit of Section 14 should be given to plaintiff for purposes of present suit in computing the period of limitation. However, fact of the matter remains that plea regarding present suit CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 6 of 11 being barred by limitation was taken by defendant no. 2 and 4 in their application under Order 7 Rule 11 CPC, which application was dismissed vide order dated 22.08.2019. While dismissing the said application, it was held by my Ld. Predecessor that as far as question of limitation is concerned, plaintiff deserves to get benefit of Section 14 of Limitation Act. The said order was never challenged by defendants and has not been set aside and has attained finality. Thus, though in my opinion the said finding is erroneous, the same cannot be set aside by me and it was for defendants to challenge the same. However, since the said order has attained finality, it must be held that present suit is within the period of limitation.
8. I shall now examine merits of the present suit. Plaintiff has challenged validity of sale deeds dated 22.08.2000 on the ground that since suit property had already been sold by erstwhile owner Mahesh Rai to plaintiff vide registered sale deed dated 19.08.2000, GPA holder of the said Mahesh Rai had no authority to execute subsequent sale deeds dated 22.08.2000 in favour of defendants. Plaintiff has sought declaration regarding the said sale deeds being null and void on the basis that plaintiff is the owner as per sale deed dated 19.08.2000, which was executed and registered prior to the impugned sale deeds. As per Section 34 of Specific Relief Act, 1963, relief of declaration without seeking further consequential relief is not maintainable. In the instant case, suit property is stated to be vacant plot of land. In written arguments submitted by plaintiff, it has been stated that in such CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 7 of 11 circumstances, principle of 'possession follows title' is applicable and plaintiff must be deemed to be in possession of the suit property since plaintiff has a registered sale deed in his favour. However, the said principle is not applicable in the present case as even defendants have duly registered sale deeds in their favour. Till the time the said sale deeds in favour of defendants are declared to be null and void, it cannot be said that the said principle of 'possession follows title' is applicable only in favour of plaintiff and not in favour of defendants. In these circumstances, it was incumbent upon plaintiff to lead specific evidence to prove that he is in actual, physical possession of the suit property. However, no such evidence was ever led by plaintiff. In fact, during his cross-examination, it was admitted by plaintiff/PW1 that he does not have any proof or document to show that he is in possession of the suit property. He also stated that he was not aware if suit property is in the possession of subsequent buyer M/S Baikunth Estate Pvt. Ltd. Thus, apart from his bare oral averments regarding him being in possession of the suit property, there is nothing on record to even prima facie suggest that plaintiff is in possession of the suit property. On the other hand, as stated above, it is the plea of plaintiff himself that he had preferred an appeal against order dated 23.09.2000 of the concerned Tehsildar, vide which suit property was mutated in favour of defendants. The said mutation in favour of defendants supports the prima facie view that it is the defendants who are in possession of the suit property and not the plaintiff. In these circumstances, plaintiff ought to have sought subsequential relief of possession, along with CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 8 of 11 main relief of declaration. The said relief of possession not having been sought by plaintiff, present suit is barred by Section 34 of Specific Relief Act, 1963.
9. It is also very pertinent to note here that as per case set up by the plaintiff, suit property purchased by plaintiff from erstwhile owner Mahesh Rai vide registered sale deed dated 19.08.2000 was situated in Village Mehrauli, Tehsil Hauz Khas, New Delhi. The said sale deed was tendered into evidence by plaintiff/PW1 as Ex. PW1/1. Description of the suit property as provided in the said sale deed is agricultural land admeasuring 1 Bigha, situated in Mustatil no. 44, Killa no. 4 (min.), Village Mehrauli, Tehsil Hauz Khas, New Delhi. On the strength of the said sale deed, plaintiff is seeking declaration with respect to sale deeds dated 22.08.2000, executed in favour of defendants. The said sale deeds were tendered into evidence by PW2A as Ex. PW2A/1 (OSR) and Ex. PW2A/2 (OSR). Sale deed Ex. PW2A/1 (executed in favour of defendant no. 1) shows that the same is with respect to property admeasuring 2 Bighas 19 Biswas. Out of the said land, property admeasuring 1 Bigha and 19 Biswas is stated to be situated in Mustatil no. 44, Killa no. 4 (min.) and remaining 1 Bigha is stated to be situated in Mustatil no. 45, Killa no. 2/2 (min.). Thus, area of property which is the subject matter of sale deed Ex. PW2A/1 and is situated in Mustatil no. 44, Killa no. 4 (min.) is more than the area of the suit property. Further, sale deed Ex. PW2A/2 (executed in favour of defendant no. 2 & 3) is with respect to property admeasuring 1 CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 9 of 11 Bigha situated in Mustatil no. 44, Killa no. 4 (min.). Plaintiff has not led any evidence to show that properties which are the subject matter of impugned sale deeds dated 22.08.2000 (Ex.PW2A/1 and Ex. PW2A/2) are the same as the suit property, which was purchased by plaintiff vide sale deed dated 19.08.2000 (Ex. PW1/1). In fact, combined area of property in impugned sale deeds Ex. PW2A/1 and Ex. PW2A/2, which is situated in Mustatil no. 44, Killa no. 4 is 2 Bighas and 19 Biswas. As per plaintiff's own admission, plaintiff is the owner of only 1 Bigha of property situated in Mustatil no. 44, Killa no.
4. Plaintiff has not clarified as to how he is entitled to declaration with respect to impugned sale deeds which pertain to combined area of 2 Bighas and 19 Biswas in Mustatil no. 44, Killa no. 4 when he is the owner of only 1 Bigha of property situated in Mustatil no. 44, Killa no.
4. Plaintiff has neither averred nor proved as to what is the total area of land situated in Mustatil no. 44, Killa no. 4. Plaintiff has also not led any evidence to show that demarcation proceedings with respect to suit property had ever been conducted to specifically demarcate and identify the suit property. Thus, there is doubt about identity of the suit property and it cannot be said that property which is the subject matter of impugned sale deeds Ex. PW2A/1 and Ex. PW2A/2 is the same as the suit property, which was purchased by plaintiff vide sale deed Ex. PW1/1. Thus, no relief of declaration could be granted in favour of plaintiff.
10.Plaintiff has also sought relief of injunction to restrain the defendants CS SCJ 82277 /16 SANJAY KUMAR GUPTA Vs. VIVEK DUTTA AND ORS. Page no. 10 of 11 from creating third party interest in the suit property. However, in the absence of proper identification of the suit property, the said relief of injunction also cannot be granted in favour of plaintiff. It is very pertinent to note here that plea regarding suit property not being properly identified and plaintiff not being in possession of the suit property was taken by defendants in their application under Order 7 Rule 11 CPC as well. However, while dismissing the said application vide order dated 22.08.2019, no finding on the said aspects was given by my Ld. Predecessor. As far as issue of identification of the suit property is concerned, it was stated in order dated 22.08.2019 that the said objection is not within the scope of application under Order 7 Rule 11 CPC. On the issue of plaintiff not being in possession, it was observed that the issue of possession can only be decided only after evidence is led by the parties. Thus, there has been no finding on both the said issues and order dated 22.08.2019 does not operate as a bar to findings given above on the said issues.
11. In view of the above discussion, I am of the opinion that plaintiff is not entitled to any relief. Suit of the plaintiff is accordingly dismissed. Parties to bear their own costs.
12. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in open (RAJAT GOYAL)
court on 29.04.2023 ASCJ/(South) Saket Courts,
New Delhi.
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