Delhi District Court
In Reference vs Sh. Nishan Singh on 13 August, 2018
IN THE COURT OF SHRI ABHINAV PANDEY : CIVIL JUDGE
: NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 535823 of 2016
In reference:
Smt. Pawan Arora
W/o Sh. Harish Arora
R/o FD20, Vishakha Enclave
Pitampura, Delhi110 034 ...........Plaintiff
VERSUS
Sh. Nishan Singh
S/o Sh. Surjeet Singh
R/o Village & P.O. Sohal
District Gurdaspur, Punjab
And also at:
C/o Sh. Rishi
S/o Ram Mehar Singh
R/o H.No. 640
Village & P.O. Bawana
Delhi ........... Defendant
Date of Institution : 13.11.2014
Date of reservation of Judgment : 08.08.2018
Date of Judgment : 13.08.2018
Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 1 of 13
J U D G M E N T
1.Vide this order, I shall dispose of, the aforementioned suit for declaration and injunction filed by the plaintiff i.e. Smt. Pawan Arora, W/o Sh. Harish Aroa, R/o FD20, Vishakha Enclave, Pitampura, Delhi110034 against the defendant no. Sh. Nishan Singh, S/o Sh. Surjeet Singh, R/o Village & P.O. Sohal, District Gurdaspur, Punjab and also at C/o Sh. Rishi, S/o Ram Mehar Singh, R/o H.No. 640, Village & P.O. Bawana, Delhi.
PLAINT:
2. The brief facts as per the plaint are that Sh. Mange Ram, S/o Sh.
Jai Lal, carved out a colony known as Mange Ram Park and in this colony he had sold a plot bearing old no. 49/A, new no. A 14/A, situated in Khasra no. 43/23, Mange Ram Park, Village Pooth Kalan, Delhi, measuring 90 sq. yards to Smt. Kanta Devi on 10.12.1985 vide notarized documents. Further Smt. Kanta Devi sold the said plot to the plaintiff herein on 09.09.1994 vide notarized documents and registered Will.
It is pleaded that late Sh. Mange Ram sold plot no. 49 of which new number is A14, situated in Khasra no. 43/23, Mange Ram Park, Village Pooth Kalan, Delhi, measuring 90 sq. yards to Sh.
Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 2 of 13Megh Raj on 10.12.1985 vide notarized documents. Sh. Megh Raj further sold the said plot bearing no. A14 to Sh. Prem Chand on 09.05.1994 vide notarized documents and registered Will and thereafter Sh. Prem Chand further sold the said plot to the plaintiff herein i.e. Pawan Arora on 09.09.1994 vide notarized documents and registered Will. As such w.e.f. 09.09.194, plaintiff is the sole and absolute owner of the adjacent plots i.e. plot no. A14 and A14/A. It is pleaded that since the time the property was purchased, the plaintiff has been in possession alongwith her family members. Sh. Harish Arora, h/o plaintiff, has been running a factory in the name and style of M/s Modern Cosmetics (India) & plaintiff has been running the business in the name & of M/s. Modern Health Care from property no. 25, Pooth Kalan, Delhi. In need of space for godown, they purchased the aforesaid two plots from the plaintiff on 09.09.1994 and they constructed a double storey structure that is hereinafter referred to as the suit property. That the suit property has been used as a godown. The electricity connection was obtained in the suit property from DVB about 15 years back in the name of the plaintiff. Plaintiff has also permitted her husband to use the suit property as a godown and recently has permitted her son Mr. Ishaan Arora to run his sole proprietorship business in the name and style of M/s Ishan Skin Care from a portion of the suit property.
Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 3 of 13It is stated that in September 2013, one Mr. Prakash of the aforementioned colony threatened to dispossess the plaintiff from the suit property alleging that suit property is owned by him. In this regard, a complaint was registered on 20.09.2012 by the plaintiff. Further plaintiff came to know that an FIR No. 100914 has been registered by the defendant on 07.09.2014. It is mentioned in the aforesaid complaint that plot no. A14 was purchased by the defendant through a legal registered sale deed dated 22.10.1973.
PRAYER
3. Plaintiff has made the following prayer:
a) It is prayed that a decree for declaration may be passed in the favour of the plaintiff thereby declaring the plaintiff as a bonafide purchaser of the suit property i.e. A14 and A14/A, Mange Ram Park, Pooth Kalan, Delhi.
b) It is prayed that a decree for declaration may be passed in the favour of the plaintiff thereby declaring that sale deed registered on 22.10.1973 is sham, bogus and unenforceable document and to cancel the sale deed by making endorsement of cancellation and may also be sent to the concerned authority and to declare that defendant has no right, title or interest in the suit property.
c) It is prayed that the decree of permanent injunction may be Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 4 of 13 passed in the favour of the plaintiff thereby permanently restraining the defendant and his associates, etc, from dispossessing the plaintiff from the suit property and also from causing any obstruction tn the use and occupation of the suit property by the plaintiff and her family members.
DEFENCE:
4. The defendants were summoned vide order dated 13.11.2014.
WS was filed on 08.04.2015 and since then none has appeared on behalf of the defendant. In response thereof the plaintiffs filed their replication. Thereafter, on 06.04.2016, application under Order XXXIX Rule 1 and 2 CPC was allowed in favour of the plaintiff and the suit was proceeded exparte qua the defendant due nonappearance on behalf of the defendant. The defence, in brief, is as under :
a) That the Defendant is the real owner of the suit property vide registered sale documents vide document no. 13287, book No. J, Vol. No. 2120 on pages 80 to 81 dates 22.10.1973 and further that the defendant is the resident of Punjab and occasionally used to visit the suit property. In the month of January 2014, when the defendant visited the suit property and the plaintiff threatened the defendant that she had got the documents registered in her favour in regard to the suit property and thus, an FIR was registered against the plaintiff. It is further stated Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 5 of 13 that documents filed by the plaintiff regarding the ownership are fake, forged and fabricated and are not admissible as per Section 33/35 & 35 of Indian Stamp Act of Indian Stamp Act being insufficiently stamped and thus, liable to be impounded and sent to the collector to impose fine upon the plaintiff. That the suit of plaintiff is without cause of action and is liable to be dismissed under Order VII Rule 11 CPC. It is further stated the value of the suit property is more than Rs. 20 lacks, thus, this court has no pecuniary jurisdiction to try the matter, hence, same be dismissed. It is further stated that contents of the para no. 2 are wrong and denied. It is denied that Smt. Kanta Devi sold the suit property to the plaintiff and that the plaintiff is not the owner of the suit property and the present has been filed with a sole motive to evade the consequences of the proceedings of FIR No. 1009/14 U/s 420/468/471/448/467 IPC registered at PS Vijay Vihar. It is also submitted that the defendant is the real owner of the suit property vide registered sale documents vide document no. 13287, book J, Vol. No. 2120 on pages 80 to 81 dated 22.10.1973.
REPLICATION:
5. Plaintiff has filed replication in which plaintiff has reiterated the averments of the plaint and denied the contents of the written statement.
Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 6 of 13EVIDENCE:
6. On the side of the plaintiff, PW1 Sh. Pawan Arora, PW2 Sh.
Harish Arora, PW3 Sh. Amit Gupta and PW4 Sh. Ishan Arora are examined but not crossexamined as the suit has already been proceeded exparte qua the defendants. The documents relied upon by the plaintiff are as under:
(i) Copy of Khatauni for the year 197778 is Ex. PW1/1 (OSR).
(ii) Copy of notarized agreement to sell, notarized GPA, notarized receipt of Rs. 15,000 of Election ID Card of plaintiff no. 1 is Ex.PW1/2 to Ex.PW1/5 (OSR).
(iii) Copy of notarized agreement to sell, notarized receipt of Rs. 45,000, notarized GPA, registered Will and Notarized affidavit in the favour of Smt. Kanta Devi are Ex.PW1/6 to Ex.PW1/10 (OSR).
(iv) Copy of the said sale documents executed by late Sh.
Mange Ram in the favour of Sh. Meghraj are Ex.PW1/11 to Ex.PW1/14 (OSR).
(v) Copy of notarized agreement to sell, notarized receipt of Rs.20,000, notarized GPA, Notarized affidavit and registered are Ex.PW1/15 to Ex.PW1/19 (OSR) respectively.
(vi) Copy of the said sale documents executed by late Sh. Prem Chand Ram in the favour of Sh. Pawan Arora are Ex.PW1/20 Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 7 of 13 to Ex.PW1/24 (OSR).
(vii) Copy of Income Tax Returns for the year 200001, 2006 07, 201213 and 201314 are Ex.PW1/25 to Ex.PW1/28 (OSR).
(viii) Copy of certificate of small scale industry issued to M/s Modern Cosmetic is Ex.PW1/29.
(ix) Copies of Electricity Bill for November 2000, November 2001, July 2013, October 2013 and January 2014 are Ex.PW1/30 to Ex.PW1/34 (OSR).
(x) Copy of two invoices of M/s Ishaan Skin Care are Ex.PW1/35 (OSR) and Ex.PW1/36 (OSR)
(xi) Copy of the complaint dated 20.09.2012 is Ex.PW1/37.
(xii) Copy of the FIR No. 1009/14 is Ex.PW1/38.
(xiii) Copy of the notice issued under Order XII Rule 8 CPC is Ex.PW1/39.
(xiv) Copy of the Registered Will Ex.PW3/1 (OSR).
(xv) Copy of the Will of Sh. Meghraj is Ex.PW3/2 (OSR). (xvi) Copy of the registered Will Ex.PW3/2 (OSR).
7. Defendants's witnesses have not been examined as the suit has already been proceeded exparte qua the defendant.
FINAL ARGUMENTS:
8. Since the defendant has already been proceeded against ex Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 8 of 13 parte, final arguments were heard on behalf of the Ld. Counsel for the plaintiff.
FINDINGS OF THE COURT:
9. As Discussed above the plaintiff has submitted in evidence the chain of documents in respect of both the properties in dispute ie. bearing No. A14 and A14A situated in Kh. No. 43/24, Mange Ram Park, Pooth Kalan, Delhi. The plaintiff has placed on record and duly proved the execution of documents Ex. PW1/6 to Ex. PW1/10 (OSR) dated 09.09.1994 and Ex. PW1/20 to Ex. PW1/24 (OSR) dated 09.09.1994 by means of which property No. A14 and A14A respectively were purchased by the plaintiff. The PW1, PW2, PW3 and PW4 have appeared as witness and have duly proved the execution of these documents. Though the execution of GPA, Agreement to Sell and Will without the execution of a proper sale deed is not a lawful mode of transfer of immovable property as per judgment of Hon'ble Supreme Court of India in [Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 19832011 Delhi Law Times 1 (Supreme Court)] but the present conveyance took place in 1994 ie. before the date of the aforesaid judgment, therefore the judgment being applicable prospectively, this court is not examining the validity of the said documents for the purpose of conveyance to be entitled to the above said relief.
Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 9 of 13The plaintiff has also tendered in evidence the document denoting chain of transfer of title of the suit property. These are Ex. PW1/2 to Ex. PW1/5 (OSR) in respect of the property bearing No. A14A and Ex. PW1/11 to Ex. PW1/14 (OSR) and Ex. PW1/15 to Ex. PW1/19 (OSR) in respect of property bearing No. A14. The plaintiff has also tendered in evidence the khatoni (OSR) for the year 197778 according to which Shri Mange Ram S/o Shri Jai Lal was owner of the suit property. Coming to the question of possession, the plaintiff has placed on record and has duly proved by way of affidavit the electricity bills for the years 2000, 2001, 2013 and 2014 which are Ex. PW1/30 to Ex. PW1/34 (OSR). Invoices of M/s Ishan Skin Care bearing the address of the suit property has been produced and proved as Ex. PW1/35 and Ex. PW1/16 (OSR).The copy of Income Tax Return for the year 20002001, 2006 07, 201213 and 201314 are tendered as Ex. PW1/25 to Ex.PW1/28 (OSR) and copy of certificate of Small Scale Industry issued to M/s Modern Cosmetic has been tendered and proved as Ex. PW1/29, both of which reflect that the plaintiff is in settled possession and is carrying of business in the suit property since the year 2000. PW1, PW2, PW3 and PW4 have also deposed in their evidence that since 1994, on the basis of the titled documents mentioned above, the plaintiff is in continued settled possession of the suit property as an owner. The said testimony has remained Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 10 of 13 uncontradicted.
Therefore, the plaintiff has duly proved without contradiction that he is in continued possession of the suit property No. A14 and A14A situated in Kh. No. 43/24, Mange Ram Park, Pooth Kalan, Delhi, since the date of purchase of the suit property by her ie. on 09.09.1994. The initial burden of proving a legal and settled possession on the basis of any title was on the plaintiff u/s 101 of the Indian Evidence Act which the plaintiff has sufficiently discharged. The onus has now shifted on the defendant u/s 102 of the Indian Evidence Act to prove a better title then that of the plaintiff which the defendant has failed to discharge. Accordingly, the plaintiff has proved that he purchased the property, bonafide, in good faith, and for consideration, and that he is in current possession of the suit property and therefore, has proved herself to be entitled to a decree of declaration and injunction against dispossession.
Ld. Counsel for the plaintiff has made a statement that the suit property is in Kh. No. 43/23 whereas the defendant in his FIR to the police and in his WS has stated the property to fall in Kh. No. 43/22. Accordingly, the Ld. Counsel for the plaintiff has made a statement to the effect that he does not wish to press upon the relief stated in clause B of the prayer ie. for declaration of sale deed registered on 22.10.1973 in favour of the defendant as a sham, bogus and unenforceable documents and for Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 11 of 13 cancellation of the sale deed. But since the defendant in his WS in para No. 18 has stated that the property of the defendant falls in Khasra No.43/23, and in the complaint to police, it has been wrongly mentioned as 43/22, this court deems it appropriate to decide this issue on merits. According to section 31 of Specific Relief Act, a relief of cancellation can only be sought by a person against whom an instrument is void or voidable. It is well settled position of law that the suit for declaration can be maintained even by a person if he is not a party to the document, but cancellation of deed can be sought in a court only by a person who executed the documents and who perceives that such document is void and voidable against him. The plaintiff was not a party to the sale deed dated 22.10.1973. Also, the plaintiff has nowhere proved that the sale deed dated 22.10.1973 was created by the defendant fraudulently. It is even not needed to prove that because the defendant has not led his evidence in support of his title and once the plaintiff is declared as bonafide purchaser and the defendant having an opportunity to lead evidence in support of his title has failed to do the same, then the superiority of the plaintiff's claim is automatically established and plaintiff become entitled to all the rights of a bonafide purchaser as mentioned in section 41 of the Transfer of Property Act, 1882 and Section 19 of the Specific Relief Act 1963. Accordingly, the said prayer for declaration as in clause Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 12 of 13 B of the prayer is declined.
Therefore, on a scale of balance of probabilities, the plaintiff has established her case for declaration as bonafide purchaser and for consequent injunction. Accordingly, the suit is decreed in favour of plaintiff.
RELIEF :
10. The plaintiff is declared to be a bonfide purchaser of the suit property bearing No. A14 and A14 A, Mange Ram Park, Pooth Kalan, Delhi for due consideration and without notice. Accordingly, the defendants, their assignees, their agents, heirs or anyone claiming under them are hereby permanently restrained from unlawfully dispossessing the plaintiff from the suit property and also from causing any obstruction in the use and occupation of the suit property by the plaintiff and her family members. Costs of the suit are also decreed in favour of the plaintiff and against the defendant.
11. Decree sheet be prepared accordingly.
12. File be consigned to the record room after necessary compliance.
Announced in the open Court on 13th of August, 2018 (ABHINAV PANDEY) CIVIL JUDGE (NORTH) ROHINI/DELHI Suit No. 535823/2016 Smt. Pawan Arora Vs. Sh. Nishan Singh Page 13 of 13