Delhi High Court
Kartar Singh vs Delite Techno Build Pvt. Ltd. And Ors. on 18 October, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th October, 2019.
+ CS(OS) 491/2019 & IAs No.13052/2019 (u/O XXXIX R-1&2
CPC), 13054/2019 (u/S 80(2) CPC) & 13055/2019 (for condonation
of 303 days delay in re-filing the suit)
KARTAR SINGH ..... Plaintiff
Through: Mr. Bharat Bhushan and Mr. Sahil
Aeron, Advs.
Versus
DELITE TECHNO BUILD PVT. LTD. AND ORS. .....Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit against four defendants namely (i)
Delite Techno Build Pvt. Ltd., (ii) Sushil Kumar Gupta, (iii) Mahender
Kumar and (iv) The Govt. of NCT of Delhi, for
(a) declaration as null and void ab initio of the Sale Deed dated
13th March, 2010 executed by the plaintiff in favour of the defendant
No.1 and duly registered on 13th March, 2010 in the office of the Sub-
Registrar, Delhi in respect of (I) agricultural land measuring 14 bighas
and 17 biswas bearing Khasra Nos.17/18/1 (4-1), 26/7/2 (2-7), 26/14
(4-9) and 27/12 (4-0) situated in the area of village Neelwal, Delhi-
110041; (II) half share in land measuring 52 bighas 2 biswas i.e. 26
bighas 1 biswas out of Khasra Nos.13/3 (4-16), 4 (5-18), 26/3/2 (2-2),
7/1 (2-6), 8 (4-11), 13/2 (3-6), 17/1 min. (3-12), 27/18 (4-16), 23 (4-
16), 24 (4-16), 25/2 (4-5), 27/14/2 (0-10), 17 (4-16) and 31/7/2 (1-12)
CS(OS) 491/2019 Page 1 of 8
situated in the area of village Neelwal, Delhi-110041; and, (III) 1/4th
share in land measuring 4 biswas i.e. 01 biswa out of Khasra
No.27/27 (0-4) situated in the area of village Neelwal, Delhi-110041;
and in the alternative, for a direction to the defendants to pay
the remaining sale consideration amount along with interest @ 24%
per annum from 13th March, 2010 till realisation of the amount to the
plaintiff;
(b) declaration as null and void of the mutation entry affected on
12th July, 2017 in the records of Sub Divisional Magistrate, Punjabi
Bagh, Delhi; and,
(c) permanent injunction restraining the defendants from dealing
with the agricultural land and/or from creating any encumbrances
with respect thereto.
2. The plaintiff, in the plaint has pleaded (i) that the cheques for total
Rs.15,30,00,000/- recorded in the Sale Deed to have been handed over by
the defendant No.1 to the plaintiff towards sale consideration were in fact
not handed over by the defendant No.1 to the plaintiff; (ii) that the plaintiff
repeatedly reminded the defendant No.1 to pay the sale consideration but the
defendant No.1 failed to do so; (iii) that the plaintiff moved an application
on 12th May, 2010 before the Tehsildar with request that no mutation be
affected in the name of defendant No.1; (iv) that in a joint meeting between
the plaintiff and the defendant No.1, it was agreed that some amount of the
sale consideration would be adjusted in the payment made by Robot
Properties Pvt. Ltd. to the plaintiff and the defendant No.1 assured payment
of remaining sale consideration, representing that he will take possession
and file application for mutation only after the consideration had been paid;
CS(OS) 491/2019 Page 2 of 8
(v) however, the defendant No.1, without paying the sale consideration, on
15th July, 2013 applied for mutation of the property and mutation was
effected in favour of the defendant No.1 on 12 th July, 2017; (vi) that the
plaintiff filed objections to the mutation and proceedings in which regard
were pending but the defendant No.3 Mahender Kumar, Advocate engaged
by the plaintiff concealed from the plaintiff the factum of mutation having
been affected; (vii) that the plaintiff is still in physical and cultivatory
possession of the land; and, (viii) that the plaintiff has also lodged complaint
dated 8th April, 2018 against the defendant No.1 and its Director defendant
No.2 with the Economic Offences Wing, Delhi Police and has also filed a
complaint against the defendant No.3 Mahender Kumar, Advocate.
3. The suit instituted on 1st November, 2018 and re-filed on 31st August,
6th September and 11th September, 2019 came up first before this Court on
20th September, 2019, subject to office objection as to valuation and court
fees. However, on it being enquired from the counsel for the plaintiff, as to
how the suit valued for the purposes of court fees and jurisdiction in
paragraph 37 of the plaint as under:
"37. That the suit for the purpose of valuation of jurisdiction
is valued at Rs.15,30,00,000/-, and for the purpose of court fee
is ascertained as per the article 17(i)(iv) of the Court Fees Act,
as the Plaintiff is in continued possession of the entire Suit
Property and fixed court fee of Rs.20/- has been affixed. For
the relief of permanent injunction is valued at Rs.130/- on
which requisite court fees has already been affixed on the
plaint. Court fee on damages shall be paid on the basis of
damages which may be awarded by this Hon'ble court."
CS(OS) 491/2019 Page 3 of 8
was correctly valued for court fees and jurisdiction, the counsel for
the plaintiff, notwithstanding office objection, sought adjournment and
which was granted subject to the plaintiff depositing costs of Rs.2,000/- with
the Delhi High Court Advocates Welfare Trust and the suit posted for today.
4. The counsel for the plaintiff, on enquiry states that costs have been
deposited.
5. The counsel for the plaintiff has today first drawn attention to
"landmark judgment in Suhrid Singh Vs. Randhir Singh (2010) 12 SCC
112" and particularly to paragraph 7 thereof as under:
"7. Where the executant of a deed wants it to be annulled, he
has to seek cancellation of the deed. But if a non-executant
seeks annulment of a deed, he has to seek a declaration that the
deed is invalid, or non est, or illegal or that it is not binding on
him. The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance, can be
brought out by the following illustration relating to A and B,
two brothers. A executes a sale deed in favour of C.
Subsequently A wants to avoid the sale. A has to sue for
cancellation of the deed. On the other hand, if B, who is not the
executant of the deed, wants to avoid it, he has to sue for a
declaration that the deed executed by A is invalid/void and non
est/illegal and he is not bound by it. In essence both may be
suing to have the deed set aside or declared as non-binding.
But the form is different and court fee is also different. If A, the
executant of the deed, seeks cancellation of the deed, he has to
pay ad valorem court fee on the consideration stated in the sale
deed. If B, who is a non-executant, is in possession and sues for
a declaration that the deed is null or void and does not bind him
or his share, he has to merely pay a fixed court fee of Rs.19.50
under Article 17(iii) of the Second Schedule of the Act. But if
B, a non-executant, is not in possession, and he seeks not only a
CS(OS) 491/2019 Page 4 of 8
declaration that the sale deed is invalid, but also the
consequential relief of possession, he has to pay an ad valorem
court fee as provided under Section 7(iv)(c) of the Act."
and has contended that since the plaintiff is in possession of the land,
the plaintiff is entitled to institute the suit with fixed court fee. It is further
contended that the plaintiff has not sought the relief of possession and only
sought the relief of declaration of possession of the plaintiff.
6. I have enquired from the counsel for the plaintiff, whether the
plaintiff claims to be in position of A or B, in the illustration in the
paragraph reproduced above of Suhrid Singh supra.
7. The counsel for the plaintiff states that the plaintiff is in position of A.
8. As per Suhrid Singh supra, an executant to a document, seeking
annulment thereof, is required to sue for cancellation thereof as distinct
from, for declaration of the document as invalid, and to pay ad valorem
court fee as per consideration stated in the Sale Deed. The plaintiff has not
sued for cancellation but for declaration of invalidity and which is the
remedy provided for a non-executant to a document, and also not valued the
suit for the purposes of court fee and jurisdiction as per the consideration set
out in the Sale Deed. Thus the claim of the plaintiff is contrary to the
"landmark judgment" of the counsel for the plaintiff and the said judgment,
rather than helping the plaintiff, is against the plaintiff.
9. The counsel for the plaintiff having also argued that the plaintiff is not
seeking the relief of recovery of possession, I have enquired from the
counsel for the plaintiff, (i) whether not the law as laid down in Anathula
Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594, Savyasachi K. Sahai Vs.
Union of India (2017) SCC OnLine Del 8818 (DB) [SLP(C) No.16449-
CS(OS) 491/2019 Page 5 of 8
16451/2017 preferred whereagainst was dismissed on 10th December, 2018],
Pankaj Bajaj Vs. Meenakshi Sharma 2013 SCC OnLine Del 2303,
Institute of Human Behaviour & Allied Sciences Vs. Govt. of NCT of
Delhi 2012 SCC OnLine Del 1373, S.S.P. Buildcon P. Ltd. Vs. M.C.D.
2010 SCC OnLine Del 3260, Ishmali Devi Vs. Delhi Development
Authority 2009 SCC OnLine Del 2550 and Navalram Laxmidas Devmurari
Vs. Vijayaben Jayvantbhai Chavda 1997 SCC OnLine Guj 83 with respect
to open land is, that the possession thereof is presumed to be of title holder
thereof and whether not as of today, the defendant No.1, having registered
Sale Deed of the land in its favour, is the title holder thereof; (ii) whether not
the mutation sought by the defendant No.1 of the agricultural land in its
favour as far back as in 2013 and effected on 12th July, 2017 also shows the
possession of the land to be of the defendant No.1; (iii) what is there to show
that the plaintiff is in possession of the land; and, (iv) once it is so, whether
not the claim of the plaintiff for declaration without seeking the
consequential relief to which the plaintiff as per own averments is entitled
to, is barred by the proviso to Section 34 of the Specific Relief Act, 1963.
10. The counsel for the plaintiff only states that Khasra Girdawari till the
year 2015 is in favour of the plaintiff and the plaintiff along with the plaint
has produced photographs of himself on the land, showing his own physical
possession of the land.
11. I am afraid, the same does not answer the queries raised.
12. The counsel for the plaintiff has next referred to the judgment dated
24th January, 2018 of a Single Judge of the High Court of Madhya Pradesh
in W.P. No.4995/2015 titled Gangesh Kumari Kak Vs. State of M.P. and to
CS(OS) 491/2019 Page 6 of 8
the paragraph thereof referring to Government of Orissa Vs. Ashok
Transport Agency (2002) 9 SCC 28.
13. The said judgment is with respect to void and voidable transactions
and not relevant for the purpose of valuation of suit for purposes of court
fees and jurisdiction.
14. As per the plaint of the plaintiff, the Sale Deed is void ab initio and
the counsel for the plaintiff also contends so.
15. Attention of the counsel for the plaintiff is drawn to Section 55(4)(b)
of the Transfer of Property Act, 1882, providing that where the ownership of
the property has passed to the buyer before payment of the whole of the
purchase-money, the plaintiff is entitled only to a charge upon the property
in the hands of the buyer without consideration. The same suggests that
even if the consideration of the Sale Deed executed by the plaintiff has not
been received by the plaintiff, the same does not invalidate the Sale Deed
and the plaintiff as seller is only entitled to recover the un-paid sale
consideration. It has been enquired, how the Sale Deed can be said to be
void ab initio.
16. The counsel for the plaintiff has referred to the dicta of the High
Court of Punjab and Haryana in Surjit Kaur Vs. Karamjit Kaur
MANU/PH/1176/2012 and Om Parkash Vs. Bimla Devi 2014 SCC OnLine
P&H 10424 and contends that it is the possession which is material.
17. However, as per the "landmark judgment" cited by the counsel for the
plaintiff himself, possession is relevant only when a non-executant to a
document is suing for declaration of invalidity of the document and not
when the executant of a document is seeking cancellation thereof.
CS(OS) 491/2019 Page 7 of 8
18. I have in Anuradha Gupta Vs. Veena Devi 2017 SCC OnLine Del
9646 relying on Suhrid Singh supra, also held that a executant to a deed
suing for cancellation thereof has to pay ad valorem court fees on
consideration set out in the deed. To the same effect is judgment of a Co-
ordinate Bench in Manoj Kumar Gupta Vs. Sheela Devi 2014 SCC OnLine
Del 4474 and of the Division Bench of the High Court of Punjab & Haryana
in Tarsem Singh Vs. Vinod Kumar 2011 SCC OnLine P&H 8146. Mention
may also be made of Harish Relan Vs. Kaushal Kumari Renal 2015 SCC
OnLine Del 11528 [DB].
19. The plaintiff is thus not found to have valued the suit properly for the
purpose of court fees and jurisdiction and the plaint is liable to be rejected.
20. The plaintiff, if sues afresh, to along with the fresh proceedings if any,
file a copy of the plaint in this suit as well as the order dated 20 th September,
2019 and today‟s order in this suit and to, besides addressing on the aspect
of valuation, also satisfy the Court on the necessity to implead the defendant
No.3 Mahender Kumar, Advocate against whom no relief has been claimed
and to show how the relief before a Civil Court, of cancellation of mutation
is available and whether not the complete remedy thereagainst is provided in
the Delhi Land Revenue Act, 1954.
The suit is disposed of.
RAJIV SAHAI ENDLAW, J.
OCTOBER 18, 2019/„bs‟..
CS(OS) 491/2019 Page 8 of 8