Delhi District Court
Sh. Dharambiri Rana vs Prabhu Dayal Sharma on 3 August, 2022
IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.35/2020
In the matter of:
Sh. Dharambiri Rana
W/o late Sh.Gurbachan Singh Rana
R/oRZ883, A/11, Gali No.9/3
Sadh Nagar, Palam Colony
New Delhi
.....Appellant
Versus
1. Prabhu Dayal Sharma
(since deceased and deleted from array of defendants)
2. Krishan Kumar
(Defendant no.1 in the amended memo of parties in suit)
S/oSh.P.D.Sharma
R/oM50, Hari Nagar
New Delhi
3. Payal Sharma
(Defendant no.2 in the amended memo of parties in suit)
D/o Sh.S.K.Sharma
R/o243/244, 3rd Floor T.Ext.
Vishwas Park, Uttam Nagar
New Delhi110059
4. The SubRegistrarIX
(Defendant no.3 in the amended memo of parties in suit)
Kapashera, New Delhi
....Respondents
RCA no. 35/2020
Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 1 of 20
Date of Institution of Appeal : 04.11.2020
Date of reserving judgment : 03.08.2022
Date of pronouncement : 03.08.2022
Appearance :
1. Sh. N.C. Sharma, Advocate ld. Counsel for the appellant
2. Sh. Manish, Advocate ld. Counsel for respondent no. 2
REGULAR CIVIL APPEAL AGAINST THE ORDER DATED 10.12.2019
PASSED BY SH. SACHIN SANGWAN, Ld.JSCC/ASCJ/GJ (SOUTH
WEST) DWARKA COURTS, NEW DELHI
J U D G M E N T:
1. The present appeal has been preferred against the impugned order dated 10.12.2019, whereby the plaint of the plaintiff was rejected under order VII rule 11 CPC. The parties are herein after referred to as per their litigative status before the ld. Trial Court for the sake of convenience.
2. Brief facts relevant for disposal of present appeal are like this:
(i) The plaintiff filed a suit stating therein that Sh. P.D. Sharma, since deceased (in short, the deceased) had purchased the property bearing no.402 measuring 150 sq.yds located on part of khasra no.92/5 situated at Sadh nagar Palam Colony, new Delhi (In short, the suit property) through its attorney Sh.Gurcharan Singh on 15/16 January 1979. The deceased executed general power of attorney, WILL and receipt in respect of the suit property in the name of Sh.Parmod Kumar Sharma (son of the deceased) on 28.12.1979.RCA no. 35/2020
Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 2 of 20 Sh.Parmod Kumar Sharma was working abroad and he had executed a general power of attorney for sale of the suit property in name of his real brother Sh.Krishan Kumar(defendant no.1).
(ii) It is averred that plaintiff entered into an agreement to sell with defendant no.1 for purchase of the suit property for a sale consideration of Rs.60 thousand and in terms of the agreement to sell dated 04.01.1987 (in short, the said agreement) plaintiff paid an amount of Rs.5,000/ as earnest money and remaining sale consideration was to be paid within one month from the date of said agreement. Plaintiff has verified the title deed, power of attorney in favour of defendant no.1 and other sale documents and the defendant no.1 handed over the possession of the suit property to plaintiff in terms of the said agreement.
(iii) It is averred that sale consideration was raised from Rs.60,000/ to Rs.65,000/ in terms of the modified agreement dated 07.01.1987 and it was agreed upon that in the event of breach of contract by defendant no.1, defendant no.1 will return 10 times of the value of the earnest money i.e. Rs.50,000/ and, in case, the plaintiff failed to pay the balance consideration, the earnest money shall be forfeited. Plaintiff approached defendant no.1 for payment of the balance sale consideration on 25.01.1987, however, defendant no.1 expressed his inability to execute the sale documents in respect of the suit property in favour of plaintiff on the premises that his brother late Parmod RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 3 of 20 Kumar Sharma had gone abroad and expected to return to Delhi by 10.02.1987. Plaintiff was assured by defendant no.1 that necessary documents for transfer of title documents shall be executed by 15.02.1987 in terms of the letter dated 25.01.1987.
(iv) It is averred that plaintiff again visited defendant no.1 with balance sale consideration on 15.02.1987 but defendant no.1 refused to accept the same which shows that defendant no.1 was having malafide intention to avoid the said agreement.
(v) It is averred that deceased and defendant no.1 visited the suit property on 21.03.1987 and threatened plaintiff and attempted to forcibly evict plaintiff and her family members from the suit property. The husband of plaintiff lodged a complaint in this regard with PS:Delhi Cantonment against defendants.
(vi) It is averred that plaintiff sent a legal notice dated 25.03.1987 to defendant no.1 asking him to act upon the terms & conditions of the said agreement and accept the balance sale consideration but to no avail.
(vii) It is averred that plaintiff filed a suit bearing no.156/1987 against defendant no.1 and his family before the court of ld.Sub Judge restraining them for not interfering with the possession of the suit property belonging to plaintiff.
RCA no. 35/2020Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
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(viii) It is averred that plaintiff also filed a suit no. 541/1990 for specific performance of the said agreement against defendant no.1 and his brother Sh. Pramod Kumar Sharma on 19.02.1990 before the court of ld.Civil Judge, Delhi.
(ix) It is averred that ld.Sub Judge was pleased to direct both the parties to maintain statusquo regarding possession of the suit plot while disposing of the application under order XXXIX rules 1 & 2 CPC in terms of order dated 31.01.1991.
(x) It is averred that defendant no.1 while filing written statement on 06.04.1992 and 16.05.1992 had denied having executed the said agreement. The defendant no.1 in written statement has not mentioned the alleged sale of the suit property to a third party/Rakesh Kumar, as alleged subsequently during trial.
(xi) It is averred that plaintiff in the said suit no. 541/1990 for specific performance examined himself as PW1 and Dr. R.K.Sharma as PW2. PW1 proved documents, namely said agreement dated 04.01.1987 as Ex.PW1/1, site plan as Ex.PW1/2, modified agreement as Ex.PW1/3, letter dated 25.01.1987 of defendant no.1 as Ex.PW1/4. PW2 disclosed that possession of the suit property was handed over to plaintiff in his presence and that he saw the GPA in the name of Sh.Krishan Kumar (defendant no.1) executed by Parmod Kumar in his RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 5 of 20 favour.
(xii) It is further averred that on behalf of defendants, one Sh.Rakesh Kumar was examined as DW1. He deposed having allegedly purchased the suit property from Prabhu Dayal (the deceased), defendant no.1 on 12.12.1986. In his crossexamination he deposed that he did not remember the number of the plot and that he did not receive any receipt for Rs.70,000/, the alleged sale consideration. DW2 Krishan Kumar, denied the submissions in the plaint and stated that Rakesh Kumar was the owner of the suit property (however the written statement of the witness did not contain even a whisper of the alleged transfer of the plot to DW1). DW3 Naveen Gautam, witnesses to the GPA, (D1), Agreement to sell dated 12.12.1986 (D2) and WILL (D3) deposed that he could not say if the said documents were forged or genuine documents.
(xiii) It is averred that in terms of judgment dated 30.11.1999, ld.Civil Judge was pleased to pass decree for specific performance of the said agreement dated 04.01.1987 in favour of plaintiff herein upon finding that :
(i) Nothing could be brought about in the crossexamination of PW1 regarding the execution of the agreement to sell to shake her credibility.
(ii) Nothing could be brought about in the crossexamination of PW2 Ramesh Chand Gupta the scribe of Ex.PW1/1, Ex.PW1/3 RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 6 of 20 and Ex.PW1/4 to shake her credibility and he fully corroborated the statement of PW1. The witness had categorically deposed that the possession of the plot was handed over to plaintiff in his presence and that of PW3/Dr.R.K.Sharma
(iii) The deposition of Pw1 and Pw2 as regard execution of the agreement of sale and the handing over of the possession of the plot to the plaintiff is fully corroborated by PW3 as well.
(iv) On the contrary the deposit of DW2, Krishan Kumar that one Rakesh Kumar was the owner of the suit plot and that earlier Prabhu Dayal Sharma the father of the respondent was the owner of the suit plot does not even find mention in the written statement of the defendant.
(v) (a)DW1 Rakesh Kumar the alleged owner of the plot states in his crossexamination that he does not even remember the number of the plot in issue.
b) the witness further admits that he did not receive any receipt for the amount of Rs.70,000/ alleged paid by him as consideration of the suit plot and him as consideration of the suit and nor was it ever executed.
(vi) DW3 Naveen Gautam the alleged witness to the documents D1 (GPA), D2(Agreement to Sell) and DW3 (WILL) in favour of DW1, Rakesh Kumar admits in his crossexamination that he was not sure if the said documents were forged and genuine.
RCA no. 35/2020Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 7 of 20
3. It is averred that while passing the decree for specific performance of the said agreement, ld. Civil Judge was pleased to direct the defendant no.1 to execute a sale deed in respect of the suit plot in favour of the plaintiff after receiving the balance consideration amount of Rs.60,000/, in case, the same is not executed, the plaintiff shall be entitled to Rs.60,000/ as damage for non performance of contract; Rs.5,000/ as earnest money along with interest @ 12% p.a. from the date of filing of the suit till its realization.
4. It is averred that defendant preferred an appeal bearing no.02/2000 before ld. Appellate Court vide judgment dated 16.09.2000 which was allowed and being aggrieved by the judgment/decree dated 16.09.2000, the plaintiff moved an application under order 41 Rule 21 CPC which was allowed and, thereafter, ld. Appellate Court through judgment/decree dated 02.04.2005, allowed the appeal. The RSA was dismissed by the Hon'ble High Court of Delhi and the SLP has also been dismissed.
5. Defendants were served with the summons for settlement of issues. Defendant no.1 was proceeded exparte. Defendant no.2 did not file any written statement. In the meantime, an application under order VII rule 11 CPC was filed by defendant no.2, which was allowed and the plaint has been rejected through impugned judgment/decree.
6. The present suit, out of which this appeal has arisen, the plaintiff had sought following reliefs: RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 8 of 20
(i) To pass a decree of permanent injunction in favour of plaintiff and against the defendants thereby restraining them, their agents, servants, associates, assigns, legal heirs from disposing off the suit property and create third party interest, lien to the said properties more specifically shown in the site plan.
(ii) Passing a decree of mandatory injunction in favour of plaintiff and against the defendants thereby restraining them, their servants, associates, assigns, legal heirs from disposing off the suit property and create third party interest, lien to the said properties more specifically shown in the site plan.
(iii) Issue necessary directions to subRegistrarIX, New Delhi to cancel Gift Deed dated 28.04.2014 executed by Sh.Prabhu Dayal in favour of Smt.Payal Sharma D/o Sh.S.K.Sharma registered vide Regn. No.4871 in Book No.1, Vol. No.7648 on pages 174 to 179 dt.28.04.2014.
7. It is submitted that that Sh. Prabhu Dayal Sharma, (since deceased, was arrayed as defendant no. 1, however, lateron his name was deleted from the array of parties) is father of defendant no.1 and grandfather of defendant no.2. The suit property was purchased by the deceased, Sh. P.D. Sharma from Sh. Gurcharan Singh sold the suit property to Sh. Pramod Kumar Sharma (son of deceased) and, thereafter, to defendant no.1 as GPA holder of his brother, Sh. Pramod RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 9 of 20 Kumar Sharma disposed off the suit property to plaintiff for an amount of Rs. 60,000/ and Rs. 5000/ was paid as earnest money in terms of the said agreement.
8. It is further submitted that the ld. Trial Court while rejecting the plaint, has observed as under :
"as per section 54 of Transfer of Property Act, 1882 a contract for sale in itself does not create any interest aor charge on the subject property. Thus, an agreement to sell does not create any right in favour of the plaintiff so as to restrict the title rights of the seller. The only right such purchaser has is the right to sue for specific performance and seek protection of his possessory right u/s 53A of Transfer of Property Act, 1882. Such suit has already been filed by the plaintiff prior to filing of the present suit. Thus, alleged actions of the defendants are already subject to lis pendens i.e. the outcome of the suit already filed, as per Section 52 of Transfer of Property Act, 1882 but are not void per se. Thus the plaintiff has no cause of action to file the present suit."
Which finding is per se illegal and against the settled principles of law as laid down by the superior courts while interpreting the provisions of Order VII rule 11 CPC.
9. Feeling aggrieved by the impugned judgment/decree the present appeal has been filed.
10. During the course of arguments, ld. counsel for the plaintiff has raised following contentions in support of his contentions:
RCA no. 35/2020Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 10 of 20
(i) That the impugned judgment/decree is based on conjectures and surmises and is liable to be set aside.
(ii) The ld. trial court has passed the impugned judgment/decree which suffers from material irregularities and which is a case of non application of the judicial mind by the ld. Trial court
(iii) The ld. Trial Court has wrongly come to the conclusion that there is no cause of action in favour of the plaintiff in as much as the averments of the plaint are to be appreciated and taken as a whole and not in a peace meal manner.
(iv) The ld. Trial Court could not resort to hair splitting to defeat the ends of justice while dealing with the averment of the plaint. In this regard, reliance has been placed upon Popat & Kotecha Property v.
State Bank of India Staff Association, (2005) 7 SCC 510 and Mayar (H.K.) Ltd. & Ors. v. Owners & Parties, Vessel M.V., judgment passed in SLP (Civil) no. 17906/2004 by Hon'ble Supreme Court.
(v) The ld. Trial Court has not appreciated that the possession is the one ninth of the ownership as per the law of jurisprudence and the plaintiff is in possession of the suit property since 04.01.1987 and none of the defendants has explained as to in what capacity the plaintiff happened to be in possession of the suit property for such a long time.
(vi) The ld. Trial Court has not appreciated that the plaintiff was put in possession in terms of the said agreement and possession was also delivered on the same date, therefore, by virtue of the principles of part performance u/s 53A of the Transfer of Property Act (in short, the Act), the plaintiff has become the owner in possession thereof. In this regard, reliance has been placed upon Kashiram s/o Wadgu Mundale & Anr. v. Mansaram s/o Tulshiram Mundale & Ors. 2016(3) CCC 182 (Bombay) and Sheth Maneklal Mansukhbhai vs RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 11 of 20 Messrs. Hormusji Jamshedji, AIR 1950 SC 1.
(vii) The ld. Trial Court has not appreciated that the mixed question of law and facts are involved in the plaint, which requires full fledged trial and while disposing off the application under Order VII rule 11 CPC, such disputed facts cannot be adjudicated upon.
(viii) The ld. Trial Court has not appreciated the fact that one of the DWs namely Rakesh Kumar in CS no. 424/1997 has testified that he has purchase the suit property from Sh. Prabhu Dayal Sharma on 12.02.1986 for a sale consideration of Rs. 70,000/ and defendant no.2 / Krishan Kumar has maintained the said factual possession till the disposal of the SLP by the Hon'ble Supreme Court, therefore, defendant are themselves not sure as to who is the real owner of the suit property.
(ix) The testimony of Sh. Rakesh Kumar(DW1) has remained unchallenged in as much as neither Sh. Prabhu Dayal Sharma nor his legal heir including defendant no. 3 who claimed to have title over the suit property in terms of the gift deed dated 28.04.2014, has placed any material contrary to the same. Therefore, the ld. Trial Court has wrongly rejected the plaint. In this regard, reliance has been placed upon Popat Kotecha (supra).
(x) The ld. trial Court has not appreciated the fact that the gift deed cannot be made by owner of the suit property in blood relation, however, in the present case, the power of attorney holder of the owner of the suit property, has executed the gift deed in favour of his grand daughter (defendant no.2) which is not permitted under law.
(xi) The ld. trial court has not appreciated the facts and law and only observed that the plaintiff has no right, title or interest in the suit RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 12 of 20 property on the basis of the said agreement to sell only.
(xii) The ld. Trial Court has not appreciated the fact that the procedural law are not hand maid of justice but mistress of justice, and undue weightage has been given literal and narrow meaning of each and every word of the provision of law by completely forgetting that although the object of the same is to expedite the hearing, and not to scuttle the same, and also the fact that justice delayed may amount to justice buried. In this regard, reliance has been placed upon Shaikh Salim Haji Abdul Khayumsab v. Mr. Kumar & ors., VIII (2005) SLT
581.
11. Per contra, ld. counsel for defendants has contended that the suit for specific performance in respect of the suit property filed on the basis of the said agreement has been dismissed upto Hon'ble Supreme Court of India and the present suit is hopelessly barred by the provisions of res judicata. The ld. trial Court has rightly rejected the plaint, holding that there is no cause of action in favour of the plaintiff. There is no cause of action in favour of the plaintiff in as much as the said agreement, which has also not been executed by the real owner of the suit property namely Sh. Prabhu Dayal Sharma, since deceased, suit for specific performance has been dismissed by the Supreme Court, therefore plaintiff is neither entitled to seek any declaration, declaring the said gift deed as null an void, nor his rights have fructified to that of a vendee available under Section 53A of the Act. This appeal is devoid of merits and deserves to be dismissed. IN this regard, ld. counsel for defendant no.2 has relied upon Dharambiri Rana v. Pramod Kumar Sharma, (2018)11 SCC 554; Shrimant RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 13 of 20 Shamrao Suryavanshi & Anr. v. Pralhad Bhairoba Suravanshi, (2002) 3 SCC 676 and Kashiram Wadgu Mundale and Anr.v. Mansaram Tulshiram Mundale & Ors., 2016(3) ABR 286' in order to contend that plaint has rightly been dismissed by ld.trial court and there is no substance in the appeal.
12. I have heard the counsel for the parties and with their assistants have gone through the record.
13. First of all, I want to deal with the application filed by plaintiff under Section 5 of the Limitation Act seeking condonation of delay of 65 days in filing the appeal.
14. It is submitted in this application that certified copy of the judgment was applied on 12.12.2019 and it was received on 21.12.2019 by the applicant/plaintiff and only after receipt of the certified copy of the impugned judgment/decree, the present appeal has been filed. The present appeal has been filed after a delay of 65 days which was beyond control of the plaintiff, in as much as plaintiff being an old lady aged about 70 years was admitted in hospital for seven days on 23.12.2019 and, therefore, this application deserves to be allowed.
15. No reply to his application has been filed by ld. counsel for defendants. However, ld .counsel for defendants has opposed the application vehemently stating that this application is filed without any RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 14 of 20 cogent ground and should not be entertained. Furthermore, plaintiff has not advanced any plausible explanation in not filing this appeal within the prescribed period of limitation. The story of ailment of plaintiff is a cook and bull story. Therefore, plaintiff wants the condonation of delay in an underhand manner which is not permissible in law. This application is devoid of merits and deserves to be dismissed.
16. It may be noted that explanation given by plaintiff in not filing the appeal within prescribed period is the late receipt of certified copy of impugned judgment/decree as well as the ailment with which the plaintiff was down with. The explanation tendered by counsel for plaintiff for not filing appeal appears to be plausible in as much as the procedural law is hand maid of justice and not the mistress of justice. The court while dealing with the application u/s 5 of the Limitation Act are not supposed to adopt a pedantic approach but a pragmatic view. It appears that plaintiff has given sufficient cause for not filing the appeal within prescribed period. The reason given by the plaintiff though did not appears to be fully convincing, however, the same is a plausible one which may be termed as sufficient cause U/s 5 of the Limitation Act, therefore, this application U/s 5 of the Limitation Act is allowed and the delay of 65 days in filing the appeal deserves to be condoned and is hereby condoned. This application is allowed and disposed off accordingly.
17. From the rival contentions of the parties, following points of RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 15 of 20 determination, in this appeal have arisen :
(i) Whether plaintiff is owner in possession of the suit property
(ii) Whether plaintiff is entitled to the benefit of doctrine of part performance as per Section 53A of the Act.
(iii) Whether the gift deed executed by Sh. P.D. Sharma (the deceased) in favour of his grand daughter (defendant no.2) is to be regulated by the principle of lis pendens.
18. These points of determination are overlapping each other, therefore, are disposed by this common order. It may be noted that the plaintiff had filed a suit for specific performance in respect of the said agreement executed by defendant no.1 representing himself to be a power of attorney holder of his brother Sh. Pramod Kumar Sharma and defendant no.1 was not proved to be the owner of the suit property, and in such circumstances, the Hon'ble Supreme Court has dismissed the SLP filed by the plaintiff holding that only when it is proved that the person allegedly executing agreement to sell, has right to transfer the property, the court has power to issue directions for specific performance of the agreement. The ld. Trial Court has not taken into consideration this judgment on the ground that it was passed after filing of the present suit, however, this judgment is relevant as per Section 40 of the Evidence Act in as much as it pertains to right of ownership sought by plaintiff over the suit property claimed through the said agreement. Otherwise also, the present suit is barred by the principle of res judicata as well as issue estoppel as per the mandate of judgment passed in Dharambiri Rana (supra) in as much as the said agreement has been held not to be executed by RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 16 of 20 the owner of the suit property and in addition to it, it is pleaded case of plaintiff in the plaint that the deceased was the owner of the suit property. Therefore, by way of the said agreement, plaintiff has claimed to be owner in possession of the suit property and such right of the plaintiff has been rejected by the Hon'ble Supreme Court in Dharambiri Rana (supra).
19. Furthermore, though not quoted, reliance is placed upon case titled as Rajan Singh v. Roshan Lal judgment passed by Hon'ble High Court in CS(OS) 603/2019, wherein, it has been observed that on the basis of agreement to sell, no relief can be claimed. The right of plaintiff in respect of the said agreement already stood adjudicated by the Hon'ble Supreme Court of India holding that on the basis of the said agreement, which has not been proved to have been executed by true owner, the plaintiff cannot seek title of the suit property. The observations made in Rajan Singh (supra) in para no. 1620, are reproduced as under :
"16. Agreement purchasers do not have any right in the property/land agreed to be purchased. The Court, as far back as in Jiwan Das Vs. Narain Das AIR 1981 Del 291 held that an Agreement to Sell does not create any right in the property to which it pertains and merely gives a right to the agreement purchaser to seek specific performance thereof. It was further held that no rights in immovable property are created, even on passing of decree for specific performance and till in execution thereof a Sale Deed is executed.
17. Thus, the suit, in so far as for the relief sought of declaration of ownership on the basis of General Power of RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 17 of 20 Attorney, Will, Agreement to Sell and Affidavit of Possession, even post amendment sought, including by way of the aforesaid two applications, does not lie and no suit therefor can be entertained and/or set in motion.
18. The plaintiff, besides the relief of declaration has also sought the relief of permanent injunction to restrain the defendant from interfering with the possession of the plaintiff of the property and/or from dealing with the property.
19. However the suit, as per paragraph 17 of the amended plaint dated 4th December, 2019 is valued jointly for the purposes of declaration and permanent injunction at Rs.3 crores and no separate valuation as required in law to be given for the relief of declaration and injunction, has been given.
20. The counsel for the plaintiff states that the plaintiff undertakes to value the suit above the minimum pecuniary jurisdiction of this Court, separately for the relief of permanent injunction alone."
Therefore, plaintiff cannot claim any right, in respect of the said agreement, and furthermore on the basis of the said agreement, plaintiff cannot seek declaration of gift deed executed by Sh. P.D. Sharma in favour of his grand daughter (defendant no.2).
20. So far as, the claim of the plaintiff on the basis of doctrine of part performance is concerned, suffice is to say that the said agreement, as per pleadings of the plaint, has not been executed by the real owner of the suit property and apart from that the observations made in judgment Dharambiri Rana (supra) are to the same effect. In addition RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 18 of 20 to it, in the present suit, it is the case of the plaintiff, that Sh. P.D. Sharma (the deceased) has executed the gift deed in respect of the suit property in favour of his grand daughter (defendant no. 2), therefore, as per pleading of the plaintiff, he is in possession of the suit property in terms of the said agreement executed by defendant no. 1 in favour of plaintiff and not executed by the deceased, who is pleaded to be the true owner of the suit property, as such plaintiff is not entitled to the benefit of doctrine of part performance as per Section 53A of the Act.
21. As far as the applicability of lis pendens is concerned, suffice is to say that Sh. P.D. Sharma (the deceased), the alleged true owner of the suit property had never been a party to the previous litigation between the parties and the suit for specific performance was filed against defendant no. 1 (herein) & his brother Sh. Pramod Kumar Sharma, who happened to be sons of the said Sh. P.D. Sharma, the real owner of the suit property, therefore, the transaction of gift deed cannot be stated to be barred by the principle of lis pendens as alleged.
22. From the above discussion, I am of the opinion that the ld. trial court has rightly observed that there is no cause of action in favour of the plaintiff and against the defendants, so far as the present transaction whereby the suit property has been transferred through gift deed by the deceased in favour of his grand daughter (defendant no.1) and I found no ostensible reason to disagree with the finding so RCA no. 35/2020 Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
Page no. 19 of 20 recoded by ld. Trial Court. This appeal being devoid of merits deserves to be dismissed and is hereby dismissed and disposed off accordingly.
Trial court record be sent back along with copy of this judgment.
Decree sheet be drawn accordingly.
Appeal file be consigned to the record room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced and dictated on KUMAR
DAHIYA
Date:
03rd Day of August 2022. DAHIYA 2022.08.25
17:06:44
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
RCA no. 35/2020
Dharambiri Rana v. Prabhhu Dayal Sharma & Ors.
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