Delhi District Court
Smt. Savitri Devi vs Shri Ram Pal on 3 August, 2011
IN THE COURT OF MS. SWATI KATIYAR, CIVIL JUDGE-III (WEST),
TIS HAZARI COURTS, DELHI
CS. NO. 827/06
DATE OF INSTITUTION : 19.06.2003
DATE ON WHICH RESERVED : 08.07.2011
DATE OF DECISION : 03.08.2011
SMT. SAVITRI DEVI
WIFE OF SH. RAM NATH
R/O A-27-B SLUM QUARTER
DDA FLATS, MADIPUR
NEW DELHI
.....PLAINTIFF
VERSUS
1 SHRI RAM PAL
S/O LATE SH JAGGAN NATH
R/O A-740, JAWALAPURI
NANGLOI, DELHI
2 SMT. PUSHPA RANI @ MUNNI
W/O SH. RAM PAL
W/O A740, JAWALAPURI
NANGLOI, DELHI
3 SMT SAVITRI
W/O LATE SH. JAGGAN NATH
R/O A-740, JAWALAPURI
NANGLOI, DELHI-40 .....DEFENDANTS
1/14
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiff submitting that she is the owner of the entire built up property measuring around 25 sq yds comprising of ground floor consisting of one room, kitchen, bathroom along with veranda and first floor consisting of two rooms, gallery, toilet along with roof rights (hereinafter referred to as 'suit property'). It is submitted that defendant No. 1 & 2 are in the possession of the suit property as tenants and are in the occupation of one room and kitchen with facility of common bath room. It is submitted that defendant No. 1 & 2 paid a consolidated sum of Rs. 1000/- per month to the landlady/land owner as rent. It is submitted that defendant No. 3 the erstwhile owner (defendant No. 3) is the tenant of the plaintiff and in possession of one room on the first floor of the suit property.
2. Plaintiff submits that she became the owner of the suit property by virtue of sale documents like agreement to sell, affidavit, receipt, possession letter and power of attorney executed by defendant No. 3 in her favour. It is stated that defendant No. 3 had purchased the suit property without any contribution from her husband and out of her istridhan funds. The sons of defendant No. 3 paid no attention to her Mundane needs and medical expenses. Accordingly, the entire suit property was sold to the plaintiff by defendant No. 3 out of financial compulsion and the vacant possession was delivered to her two tenants. Plaintiff further states that defendant No. 3 came into possession of the suit property afresh by virtue of rent agreement executed by the plaintiff with defendant No. 3 and Sh. Ram Nath. The rent was agreed @ Rs. 300/- p.m. It is submitted that defendant No. 1 & 2 are in the possession of the suit property 2/14 as the tenant of erstwhile owner and became the tenant of the plaintiff by the transfer of the title of the suit property in favour of the plaintiff.
3. Plaintiff submits that after becoming owner of the suit property, rent was demanded from defendant No. 1 & 2 but till date defendants No.1 & 2 have been making excuses to prolong the matter on one pretext or the other. It is submitted that defendant No. 1 & 2 have malafide intention to sell the entire suit property including the portion under their occupation and possession to gain material benefits. Plaintiff further submits that she came to know from defendant No. 3 that defendant No. 1 & 2 who paid consolidated amount of Rs. 1000/- as rent towards their occupation on the ground floor of the property are negotiating with the property dealers of the locality for selling the property by forging and manufacturing false documents. It is further submitted that defendant No. 3 has colluded with defendant No. 1 & 2 and in furtherance of their common object. Defendant No. 3 had executed an agreement to sell, power of attorney, Will in respect of the suit property dt. 20.02.1997 in favour of defendant No. 1 & 2. It is submitted that the said documents are void having no binding force in the eyes of law. It is submitted that defendants are not competent to transfer, alienate or part with the possession of the suit property in favour of any third person except the plaintiff. It is submitted that even otherwise the action of the defendant was wholly illegal because defendant No. 3 had not received any sale consideration in respect of the suit property and the documents have been executed fraudulently. It is submitted that even at the time when defendant No. 3 had sold the suit property to the plaintiff, defendant No. 3 had told the plaintiff that the suit property is free from all sorts of encumbrances and no other person has any right, title or interest of the suit property.
3/144. It is further submitted that the plaintiff is the bonafide purchaser for valuable consideration of the suit property and had no knowledge with regard to the execution of alleged documents dt. 20.02.1997. It is submitted that defendant No. 1 has never got the suit property mutated in his name in the MCD records. It is averred that the documents have been procured by defendant No. 1 in collusion with defendant No. 3 to grab the suit property. The fraudulent conduct of the defendant No. 3 is also apparent from the statement given by defendant No. 3 in the Court of Sh. Vinay Singhal, the then Ld. CJ/Delhi on 17.12.2004 wherein defendant No. 3 had made no disclosure about the documents dt. 20.02.1997. It is submitted that defendant No. 1 & 2 are not on good terms with defendant No. 3 and may compel her to give the possession under her occupation to the prospective buyer of the suit property. It is submitted that defendant No. 1 & 2 have not paid any rent amount to the plaintiff despite the demands made by the plaintiff, the last demand being made on 12.06.2003. It is submitted that defendant No. 1 & 2 were seen talking with property dealers on 15.06.2003 and plaintiff has every apprehension that defendant No. 1 & 2 may sell the suit property by projecting themselves as the owner of the same. It is submitted that on 16.06.2003 plaintiff tried to talk with the defendant No. 1 & 2 but they threatened the plaintiff with dire consequences.
5. Thus, feeling aggrieved the present suit has been filed by the plaintiff seeking relief that plaintiff be declared as absolute owner of the property bearing No. A-740, Jawalapuri, Nangloi, New Delhi and that defendants have no right, title or interest in the said property. It is also prayed that the documents dt. 20.02.1997 executed by defendant No. 3 in favour of defendant No. 1 be declared as null and void. It is further prayed that defendant No. 1 & 3 be declared as tenant under the plaintiff at a monthly rent of Rs. 1000/- and Rs. 300/- respectively. Plaintiff has also prayed that defendants be restrained from 4/14 transferring, alienating or disposing off the suit property or creating any third party interest in the same.
6. Written statement filed by defendant No. 3 has been treated as withdrawn vide order dt. 03.08.2011. Defendant No. 1 & 2 have taken a preliminary objection in their written statement that the plaintiff has not approached the Court with clean hands. It is submitted that admittedly, the plaintiff is not in the possession of the suit property and thus, the present suit for declaration and permanent injunction without seeking relief of possession is not maintainable. Defendant No. 1 & 2 further submits that the suit has not been properly valued for the purpose of court fees and jurisdiction. It is submitted that the suit is barred by limitation. Further it is averred that defendants have become owner of the suit property by adverse possession of the same since 1982.
7. It is submitted that defendant No. 1 is the absolute and lawful owner of the suit property and defendant No. 3 had executed the property documents in favour of defendant No. 1 on 19.02.1997 and 20.02.1997. Defendant No. 1 & 2 deny that they are in possession of the suit property as tenants of the plaintiff. It is further denied that any rent of Rs. 1000/- was ever paid to defendant no. 3. It is submitted that defendant No. 1 & 2 have been residing in the suit property as the owners of the same and not as tenants. It is submitted that after selling the suit property to defendant No. 1, defendant No. 3 was left with no right, title or interest in the suit property to further sell the same to the plaintiff. It is denied that plaintiff has ever demanded rent from defendant No. 1 & 2 but defendant No. 1 & 2 had been making excuses to prolong the matter on one pretext or the other. On these counts, it is submitted that the suit of the plaintiff is not maintainable and is liable to be dismissed.
5/148. Replication was filed denying the contents of the written statement and reiterating the plaint. After the amendment of the plaint on 03.05.2005, issues were framed afresh on 20.09.2005 as follows:-
1 Whether the suit is not maintainable in view of P O No. 3?OPD 1,2 2 Whether the suit is barred by limitation?OPD1,2 3 Whether the suit has not been valued properly to the purpose of Court fee and jurisdiction?OPD 1,2 4 Whether the plaintiff is entitled to declaration as prayed?OPP 5 Whether the plaintiff is entitled to relief of permanent injunction,as prayed?OPP 6 Relief.
9. Plaintiff examined herself as PW-1 in evidence and tendered documents Ex. PW-1/1 to Ex. PW-1/15. Ex. Pw-1/1 is the agreement to sell dt. 30.04.2003 executed by the defendant No. 3 in favour of the plaintiff. Ex. PW-1/2 is the affidavit, Ex. Pw-1/3 is the receipt, Ex. PW-1/4 is the possession letter all dt. 30.04.2003. Ex. Pw-1/5 is the GPA dt 03.06.2003, Ex. PW-1/6 is the registered Will dt. 15.03.2004 allegedly executed by defendant No. 3 in favour of plaintiff. Ex. PW-1/7 is the Site Plan. Ex. PW-1/8 is the possession slip bearing the name of one Ganeshi Lal. Ex. PW-1/9 is alleged to be a sale document executed by Sh. Ganeshi Lal in the name of the plaintiff. The document is in Urdu language and no translation has been filed. Ex. PW-1/10 (Collectively) is the agreement dt. 01.04.1992 executed by plaintiff in favour of defendant No. 3 along with Receipt, GPA, Affidavit, Will Ex. PW-1/11 is the rent agreement dt. 06.05.2003 executed by plaintiff in favour of defendant No. 3. Ex. PW-1/12 is the certified copy of compromise application moved before the Court of Sh. Vinay Singhal, the then Ld. CJ/Delhi, Ex. PW-1/13 and Ex. PW-1/14 are the certified copies of the statements of the plaintiff as well as defendant No. 3. Ex.
6/14PW-1/15 is the final order passed by Sh. Vinay Singhal, the then Ld. CJ/Delhi. Sh. Anil Kumar Malhotra wax examined as PW-2.
10.On behalf of defendants, defendant No. 1 examined himself as DW-1 and tendered documents Ex. DW-1/1 to DW-1/6. Ex. DW-1/1 is the agreement to sell dt. 20.02.1997, Ex. DW-1/2 is the GPA executed by defendant No. 3 in favour of defendant No. 1, Ex. DW-1/4 is the affidavit of 20.02.1997, Ex. DW-1/5 is the Will dt. 19.02.1997 & Ex. DW-1/6 is the receipt for the connection of electricity. Smt. Chausar Devi was examined as DW-2. There is no document tendered as Ex. DW-1/3.
11.Final arguments were advanced at length by Ms. Jasmeet Kaur and Sh. R.S. Tiwari, Ld counsels for plaintiff and Sh. R.P Sharma Ld counsel for defendant.
12.After considering the submission and perusing the record carefully, my issuewise findings on each of the issues are as follows:-
Issue No. 2The onus of proving this issue was upon the defendants. However, beyond raising preliminary objections, defendants have failed to show as to how the suit is barred by limitation. So far as the relief of declaration is concerned, plaintiff has submitted that he was not having the knowledge about the documents dt. 20.02.1997 executed in favour of defendant No. 1 by defendant No. 3 until the written statement was filed by defendant No. 1 & 2 on 29.07.2003. Plaintiff has also placed reliance on documents Ex. PW-1/12 to Ex. PW-1/15 to show the ignorance about the said documents. A perusal of the Ex. PW-1/12 to Ex.
PW-1/15 shows that defendant No. 3 had not mentioned the documents executed on 20.02.1997 before the Court while giving her statement on 17.12.2004.
7/14Accordingly, the averment raised by the plaintiff with regard to the documents dt. 20.02.1997 can not be brushed aside merely on the ground that the documents were executed on 20.02.1997. It is a settled preposition of law that period of limitation commences from the date of knowledge of the execution of the documents in question and the knowledge of the plaintiff can be taken only from the date of filing written statement by defendant No. 1 & 2 on 29.07.2003 Nothing to the contrary could be shown by the defendants. The issue is accordingly decided in favour of the plaintiff.
Issue No. 3The onus of proving this issue was upon the defendants. Defendants submit that the suit has not been valued properly for the purpose of court fees and jurisdiction. It is submitted that the plaintiff is not in the possession of the suit property and therefore, the plaintiff had to pay court fees on the market value of the suit property. However, it is to be seen that plaintiff is not seeking possession of the suit property from the defendants. In the present suit, the consequential relief to the relief of declaration is the relief of permanent injunction and not the possession since the plaintiff does not wish to eject the defendants from the suit property but merely wants herself to be declared as owner of the suit property and the defendants to be declared as her tenants. Under such circumstances court fees would be payable on the relief of declaration and permanent injunction and not on the relief of possession. The issue is accordingly decided in favour of the plaintiff.
Issue No. 1 & 4To decide these issues it would be pertinent to refer to the testimony of the witnesses for a while.
PW-1 in her examination submits that she is the owner of the suit property having purchased the same from defendant No. 3 on 30.04.2003. Pw-1 had 8/14 deposed that at the time of execution of documents, Sh. Anil Kumar Malhotra was present who had witnessed the same. It is submitted that defendant No. 3 had sold the property for sale consideration of Rs. 50,000/- which was paid to her by the plaintiff. It is further submitted that initially the suit property was allotted by DDA to one Sh. Ganeshi Lal who had sold the same to the plaintiff vide documents Ex. PW-1/8 & Ex. PW-1/9. PW-1 had further deposed that since she was having financial problems therefore she had sold the suit property to defendant No. 3 vide sale documents Ex. PW-1/10 in the year 1992. In the month of April, 2003, defendant No. 3 had again sold the suit property to the plaintiff vide documents Ex. PW-1/1 to Ex. PW-1/6. Defendant no. 1 & 2 who were the tenants under the defendant No. 3 became the tenants under the plaintiff. PW-1 also deposed that defendants are in illegal occupation of one room in the first floor in the suit property and have been threatening the plaintiff to create third party interest in the same.
In cross examination, PW-1 had reiterated that she had purchased the suit property from Sh. Ganeshi Lal and had sold the same 12-13 years back to defendant No. 3. PW-1 has expressed inability to admit or deny the suggestion that defendant No. 1 had purchased the suit property from defendant No. 3 in the year 1997. PW-1 had admitted that defendant No. 1 has been residing in the suit property since 1982.
PW-2 has deposed in his examination that the sale documents Ex. PW-1/1 to Ex. PW-1/6 were executed in his presence. PW-2 in his cross examination states that plaintiff is a tenant in his house bearing no. A-27 B, DDA Flats, Madi Pur, Delhi. PW-2 admits that he has been knowing the defendant No. 3 whom he used to meet in Satsang. Pw-2 in his cross examination states that at the time of negotiations for the sale of the suit property none else was present other than the plaintiff, defendant No. 3 and PW-2 himself. PW-2 further deposed that the amount of Rs. 50,000/- was paid in cash in his presence but he can not tell the source from which the amount of Rs. 50,000/- was procured by the plaintiff.
9/14DW-1 in his examination has deposed that he had purchased the suit property from defendant No. 3 in the year 1997 vide documents Ex. DW-1/1 to Ex. DW-1/5. It is submitted that the subsequent resale by defendant No. 3 in favour of the plaintiff has no value in the eyes of law and can pass no title in favour of the plaintiff. It is submitted that DW-1 has never paid any rent to the plaintiff. In his cross examination DW-1 further deposed that property in dispute was initially allotted to Sh. Ganeshi Lal in the year 1976. Sh. Ganeshi Lal had sold the property to Smt. Gangoli Devi in the year 1981. Smt. Gangoli Devi sold the suit property to the plaintiff in March-April, 1981 and the plaintiff sold the same to defendant No. 3 in the year 1992.
DW-1 further deposed that he has no document to show that he had ever moved any application to the Slum Department or DDA for mutation or transfer of the property in his name. DW-1 further deposed that the property in dispute has not been accessed to property tax by MCD.
DW-1 in his further cross examination has deposed that the negotiations regarding the purchase of the suit property was materialised with the intervention of neighbour Sh. Gopi chand, Sh. Rattan, Ms. Jasmera and Smt. Chausar Devi. Out of the aforesaid persons, Sh. Gopi Chand and Ms. Jasmera had died. DW-1 had denied the suggestion that he was paying the rent of Rs. 1000/- to his mother, defendant No. 3 qua the ground floor of the suit property and after the purchase of the suit property, DW-1 was under an obligation to pay the rent to the plaintiff. DW-1 expressed inability to state as to whether his mother has executed documents in favour of the plaintiff on 30.04.2003.
DW-2 in her examination had deposed that she knows defendant No. 1 & 3 as they are residing in the same locality. It is submitted that the negotiations of the suit property took place in the presence of DW-2. DW-2 identified the signatures of her husband on Ex. DW-1/1 to Ex. DW-1/4. In cross examination DW-2 states that the original owner of the property was Sh. Ganeshi Lal and defendant No. 1 has purchased the suit property from Sh. Ganeshi Lal approx. 15-20 years back.
10/14DW-2 further deposed that the property was neither sold nor purchased in her presence but she had only heard that the property was purchased by defendant No. 1 for a sum of Rs. 20,000/-. DW-2 further stated that no transaction took place in her presence but she had received the information from her husband. DW-2 had further deposed that she can identify the signatures of her husband only and none else.
Thus, though DW-2 had failed to prove the transaction between defendant No. 1 and defendant No. 3 but DW-2 had proved the signatures of her husband on the documents Ex. DW-1/1 to Ex. DW-1/4.
A perusal of the documents brought in evidence shows that the agreement to sell Ex. PW-/1 dt. 30.04.2003 is a notarised document and has been witnessed by Sh. Anil Kumar. Ex. PW-1/5 is the GPA dt. 03.06.2003 which is again a notarised document. It is to be seen that the documents which have been relied upon by the plaintiff are merely notarised documents and have not been registered. However, as per Section 17 (1A) of Registration Act, 1908, the document have to be compulsorily registrable w.e.f 24.09.2001 to confer any right, title or interest upon plaintiff. Thus, the documents which have been alleged to be executed by defendant No. 3 in favour of plaintiff can not be said to be conferring any right, title or interest upon the plaintiff. But the same can not be said about the documents of the defendant which were executed on 20.02.1997 i.e prior to 24.09.2001.
Further, there is no dispute between the parties that on 20.02.1997, defendant no. 3 was the sole and absolute owner of the suit property and she could have transfered the suit property to any person including defendant No. 1. Further, it is not the case of the plaintiff that the documents dt. 20.02.1997 were executed by defendant no. 3 after the execution of documents dt. 30.04.2003 in favour of the plaintiff. Even if such is the case, the plaintiff has failed to mention any date or probable date after 30.02.003 on which the documents could have been executed by defendant No. 3. No witness has been examined by the 11/14 plaintiff who could depose that the documents in favour of the defendant No. 1 were executed later than the documents executed in favour of the plaintiff. Moreover, the agreement to sell Ex. DW-1/1 bears the stamp of 20.02.1997 on its back side. Thus, it can not be said that Ex. DW-1/1 was executed after 30.04.2003. The will Ex. DW-1/5 is a registered document bearing the date of 19.02.1997. It is to be seen that the plaintiff is seeking declaration of the documents Ex. DW-1/1 to Ex. DW-1/5 as null and void whereas no ground has been mentioned on which the documents ought to be declared as null and void. It is not the case of the plaintiff that the documents were obtained by defendant No. 1 from defendant No. 3 under force, compulsion or undue influence. Further, the signatures of defendant No. 1 & thumb impression of defendant No.3 on the documents Ex. DW-1/1 to DW-1/5 are not disputed by either party. Moreover, since the plaintiff was never a party to the alleged agreement to sell, therefore, plaintiff has no locus standi to challenge the said documents.
So far as declaration qua the tenancy is concerned, it is the admitted case of both the parties that defendant No. 1 & 2 had never paid any rent in any form to the plaintiff. There is no evidence on record which can show that defendant No. 1 & 2 were the tenants under defendant no. 3 and the tenancy was attorned in favour of the plaintiff. Apart from Ex. PW-1/11 there is no other document with regard to the alleged creation of tenancy. The document Ex. PW-1/11 does not bear the signature of any witness and makes no mention that defendant no. 1 & 2 were the tenants in the suit property under defendant No. 3. Under such circumstances, the plaintiff has failed to establish that defendant no. 1 & 2 were ever tenants under her qua the suit property.
In view of the observations made above, the issues are decided against the plaintiff.
12/14 Issue No. 5 & 6In view of the observations made under the preceedings issues, the present issues are decided against the plaintiff. The suit of the plaintiff is accordingly dismissed. No orders as to cost. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the Open Court today i.e. 03.08.2011.
(Swati Katiyar) CJ (West)III/Delhi 03.08.2011 13/14 14/14