Delhi District Court
Mohd. Javed Qureshi vs Smt. Gian Kaur W/O Late Shri Dalip Singh on 31 August, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS NO. 10131/2016
In re :
Mohd. Javed Qureshi
S/o Sh. Sualeheen,
R/o 92, Model Basti,
Rani Jhansi Road,
New Delhi-110005. ........ Plaintiff
Versus
1. Smt. Gian Kaur W/o Late Shri Dalip Singh
2. Shri Manjit Singh S/o Late Shri Dalip Singh
3. Shri Inderjeet Singh S/o Late Shri Dalip Singh
4. Smt. Sapna D/o Late Shri Dalip Singh
5. Smt. Avinash Kaur D/o Late Shri Dalip Singh
6. Smt. Surinder Kaur D/o Late Shri Dalip Singh
All R/o H.No. 19, Nizamuddin (West) Market,
New Delhi-110013.
7. Shri Manmohan Singh S/o Late Shri Dalip Singh
R/o A-30, C.I.S.F. Complex-V, Reserve Battalion,
Indirapuram, Ghaziabad (U.P.)
8. Smt. Tejinder Kaur D/o Late Shri Dalip Singh
R/o 4, Taimur Nagar, Delhi.
9. Smt. Satnam Kaur D/o Late Shri Dalip Singh
R/o D-6, Prithvi Raj Road, Adarsh Nagar,
(Near New Subzi Mandi), Delhi.
All legal representatives of Late Shri Dalip Singh
S/o Late Shri Jhanda Singh. ......... Defendants
Date of institution of present suit : 03.05.2007
Date of receiving in this Court : 24.02.2016
Date of hearing arguments : 22.07.2017
Date of Judgment : 31.08.2017
CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 1 of 20
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT FOR
POSSESSION AND DAMAGES TOWARDS MESNE PROFITS/
OCCUPATION CHARGES, PERMANENT INJUNCTION AND
MANDATORY INJUNCTION
JUDGMENT
This judgment shall dispose of suit filed by plaintiff against defendants for specific performance of contract for possession, damages towards mesne profits/occupation charges, permanent and mandatory injunction in respect of property bearing No. 19, situated at Nizamuddin (West) Market, New Delhi-110013, admeasuring 64.1 square yards.
1. Brief facts of the case is that plaintiff in February, 2007 entered into an agreement to sell with Late Shri Dalip Singh, in respect of the built up shop bearing property No. 19, situated at Nizamuddin (West) Market, New Delhi-110013, admeasuring 64.1 square yards, along with the superstructure standing therein (herein referred to as the suit property). It has been mentioned that the said property was allotted to Late Shri Dalip Singh by the President of India vide Lease and Conveyance Deeds, both dated 16.12.1968, duly registered as Document Nos. 162 & 163, in Addl. Book No. 1, Volume No. 2101, on pages 131 to 133 & 134 to 136, respectively in the office of the Sub- Registrar, New Delhi.
2. It has been mentioned that Shri Dalip Singh approached the plaintiff and offered to sell, transfer and convey the said property unto the plaintiff for monetary consideration and the plaintiff thereupon considered the aforesaid proposal of Shri Dalip Singh and on 14.02.2097, the plaintiff agreed to purchase the entire said property for a total sale consideration amount of Rs. 15,00,000/- and paid an advance/bayana amount of Rs. 1,00,000/- in cash to Shri Dalip Singh. It has been further mentioned that Sh. Dalip Singh received a further sum of Rs. 13,00,000/- on 05.03.2007 from the plaintiff and executed the documents in favour of the plaintiff i.e. Agreement to Sell dated 05.03.2007; General Power of Attorney dated 05.03.2007; Special Power of CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 2 of 20 Attorney dated 06.03.2007; Will dated 05.03.2007; duly acknowledged Money receipt for Rs. 14,00,000/- dated 05.03.2007; duly acknowledged money receipt for Rs. 1,00,000/- dated 05.03.2007; duly attested affidavit dated 05.03.2007 and attested affidavit dated 05.03.2007. Smt. Satnam Kaur, defendant no. 9, daughter of Sh. Dalip Singh, was an attesting witness of the aforesaid agreement to sell, General Power of Attorney, Will and Special Power of Attorney.
3. Plaintiff has further quoted some of the terms and narration of the agreement to sell which is to the effect that first party i.e. Dalip Singh had agreed to sell, convey and transfer the aforesaid property to the second party i.e. plaintiff and Rs. 14,00,000/- was paid by the second party to the first party, the receipt of which the first party has thereby admitted and acknowledged to have received as Rs. 1,00,000/- in cash paid on dated 14.02.2007; Rs. 4,00,000/- vide cheque bearing No. 830181 dated 14.02.2007; Rs. 9,00,000/- vide cheque bearing No. 830182 dated 05.03.2007, both drawn from Bank of Maharashtra, Karol Bagh, in favour of the first party and the balance sum of Rs. 1,00,000/- towards the balance sale consideration amount would be paid by the second party to the first party at the time of execution of the Sale Deed and on conversion of the said property from leasehold to freehold. It has been further mentioned that responsibility and cost of conversion to freehold would be born by the second party. It has been further agreed that under any circumstances the first party would deliver the peaceful, physical and vacant possession of the said property to the Second party by or before 31.03.2007 as second party intended to start his business under the name of M/s Samsab Export from the said property w.e.f. 01.04.2007. It has been further mentioned that in case the first party failed to deliver the possession of the said property to second party, then the second party shall have a right to obtain such possession under the first party, through specific performance of contract and first party shall also be liable in damages as occupation charges @ Rs.1000/- per day for each and every day till the date of actual realization of the said CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 3 of 20 property. It has been mentioned that as and when permitted by the Land & Development Office, the first party undertook to execute and register the Sale Deed of the said property in favour of the second party and in that event, all the expenses for registration, i.e. stamp duty, transfer duty etc., shall be borne and paid by the second party.
4. It has been mentioned that aforesaid cheques were duly encashed by Shri Dalip Singh who unfortunately expired on 19.03.2007. It has been further mentioned that after the demise of Shri Dalip Singh, the defendants, being legal representative of Late Shri Dalip Singh, failed to handover the vacant, peaceful and physical possession of the said property on 31.03.2007 to the plaintiff in terms of the said agreement. It has been further mentioned that the plaintiff served a legal notice dated 09.04.2007 upon the defendants calling upon the defendants to handover the vacant, peaceful and physical possession of the said property to the plaintiff within seven days of the receipt of the said notice but the defendants had neither sent any reply to the said notice nor had they handed over the possession of the said property to the plaintiff till date. Hence the present suit.
5. Upon service of summons, defendant no. 1 to 6 and 8 filed written statement thereby raising preliminary objections that suit of the plaintiff is barred under Section 14, 16 (b), 17(1)(a), 20(2)(a), (b)(4) of and 41(h) of the Specific Relief Act. It has been submitted by the defendants that Sh. Dalip Singh was the husband of defendant no.1 and father of defendants no. 2 to 6 and 8. It has been submitted that Sh. Dalip Singh was not the sole owner of the property in question as the same was purchased substantially out of istridhan of defendant no.1 and also from the financial assistance given to defendant no.1 by her mother. It has been pleaded that Shri Dalip Singh was owner to the extent of only 1/5th share in the property in question. It has been stated that it was always intended and never disputed between Dalip Singh and his family members that Smt. Gian Kaur was the owner to the extent of 4/5 th CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 4 of 20 share in the suit property.
6. It has been further pleaded that granting decree of Specific Performance under the circumstances of the present case would amount to allowing the plaintiff to get unfair advantage over the defendant. It has been stated that for the last 25 years, Shri Dalip Singh had been living separately from the family at a different address i.e. WZ-5, Gobind Puri, Sri Maa Anand Mai Marg, Opposite Kalka Ji Bus Depot, New Delhi. He was a criminal, dishonest and never took care of his family and his reputation in the community was that of a drunkard and a womanizer indulging in illicit relations. He did not care for his family and used to torture the defendant no.1 physically and mentally and in these circumstances defendant no. 2 was compelled by poverty to work as a mechanic at a very tender age in the shop in around 1989-90 and education of defendant no.2 suffered. It has been further mentioned that defendants no. 1 and 2 got the suit property repaired and renovated as it required such repairs since the property was constructed in 1968. Defendants are bearing all expenses of its maintenance and Shri Dalip Singh never contributed towards any such expenses.
7. It has been further mentioned that plaintiff has committed forgery of documents and played fraud as he was very much aware about Dalip Singh not living with defendants for more than 25 years. Plaintiff was aware or at least could have been aware of the litigations between Dalip Singh and his family members. Plaintiff's conduct in entering into the agreement for purchasing property worth Rs. 1.5 crores for meager sum of Rs. 15,00,000/- without making any inquiry raises serious doubts about his bonafide intention.
8. It has been further submitted that Shri Dalip Singh had been litigating with the defendant for possession of the property in question. He had filed a suit for permanent injunction against defendant no.1 to 3 and 8 seeking the relief of injunction against the defendants for restraining them forcibly CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 5 of 20 dispossessing Shri Dalip Singh from the suit property. Defendants herein contested the said suit and the said suit was decreed against Shri Dalip Singh vide judgment and decree dated 19.07.2003. It has been further alleged that Dalip Singh was in the habit of harassing the defendants by filing frivolous and false complaints. Dalip Singh had lodged two complaint against defendants with SDM which were also dismissed. He also published defamatory articles in the press containing false and frivolous story against his family members.
9. It has been further mentioned that Shri Dalip Singh had filed a writ petition bearing No. WP (Crl.) No. 65/05 seeking directions in the nature of mandamus against the respondent to put him in possession of the property in question and in the said matter status report was sought by the Hon'ble High Court and an inquiry was directed to be held by Public Grievance Cell, Sub- District and ultimately said writ petition was dismissed vide order dated 17.06.2006 after the enquiry report. Shri Dalip Singh preferred LPA bearing No. 1988/06 against the order dt 17.06.2006 and Hon'ble High Court while issuing notice clearly held that there was no substance in the appeal and notice was issued only for limited purpose to examine why he was not being permitted to have free access to the said property, however, said LPA was dismissed subsequently.
10. It has been further mentioned that plaintiff has admitted that on 05.03.2007 he (plaintiff) came to know of all the litigation, family disputes and differences between Shri Dalip Singh and answering defendants. It has been further mentioned that plaintiff has admitted being handed over the entire bunch of documents pertaining to the previous litigations between Shri Dalip Singh and the answering defendants and despite that plaintiff paid the balance consideration of Rs. 1,00,000/- on 05.03.2007 itself after the knowledge of litigation and chose to file the present suit for Specific Performance. It has been mentioned that whole sequence of events reflects the malafide intention CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 6 of 20 of the plaintiff. It has been further mentioned that suit of the plaintiff is barred by the principle of issue estopple; not maintainable for deficient court fee and for violation of Section 38 and 39 of the Specific Relief Act.
11. On merits, the entire allegation of the plaint has been denied and the facts mentioned in the preliminary objection has been reiterated to the effect that Shri Dalip Singh was owner only to the extent of 1/5th share and defendant No.1 was owner of 4/5th share in the suit property. Defendants have further went on to reiterate the details of litigations that went between Shri Dalip Singh and defendants and about his bad habit. It has been further stated that Shri Dalip Singh got necessary documents executed in his favour by playing fraud upon the answering defendants as Shri Dalip Singh had a meagre income at that point of time and was unable to contribute even a sum of Rs. 4,500/- in the year 1968. On the basis of aforesaid averments, suit has been sought to be dismissed.
12. Plaintiff filed replication thereby denying the averments of written statement made by the defendants and reiterating the contents of the plaint.
13. Defendant No.9 filed written statement raising preliminary objection that suit property has not been properly valued for the purpose of court fee and jurisdiction and this court has no jurisdiction as the value of the suit property is more than 1.5 Crores; that there is no privity poof contract between the plaintiff and answering defendant; that suit is barred under Section14,17(1)(a), 20 (2)(a)(b) of the Specific Relief Act; that property in question was allotted by Ministry of Rehabilitation as a unit for the entire family and only lease deed was executed in favour of late Sh Dalip Singh for the sake of convenience, otherwise all the family embers of late Sh Dalip Singh are owners of the property in question and Dalip Singh was not having absolute right, title and interest to transfer or alienate the property in question CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 7 of 20 in favour of any. It has been contended that even otherwise defendants cannot be thrown out of possession as they are in possession in their independent right.
14. On merits it was pleaded that Dalip Singh was owner only to the extent of 1/5th share of the property in question and as per her knowledge the property was negotiated for sale for a sum of Rs 65,00,000/- on 24.01.2007 instead of 14.02.2007 by which the then late Sh. Dalip Singh received a sum of Rs 10,000/- (Ten Thousand Only) and there was no question of agreeing to sell the property at Rs 15,00,000/-. It was further submitted that she was an attesting witness in all the documents referred by plaintiff but it was pleaded that agreement to sell was got executed by playing fraud on Sh Dalip Singh who was not in sound disposing of mind and his faculties were not working properly, he was assured that special power of attorney, GPA and Will were being got executed as precautionary measure and actual amount will be paid at the time of execution of the sale deed after taking due permission from L&DO and no prior permission was ever applied or obtained during life time of late Sh Dalip Singh. It was further submitted that plaintiff immediately after knowing the demise of Dalip Singh applied for mutation in his name on 29.03.2007 though he was not entitled to seek such mutation from L&DO.
15. It was further submitted that Dalip Singh was never in possession of the property for last more than 30 years and only defendants are in possession of the suit property in their own rights. It was further submitted that during life time Dalip Singh was not able to enter the property in question and had filed many suits but he was never allowed by any courts to enter the property in question and was never in possession. She has specifically denied any telephonic conversation between her and plaintiff and has denied that entire payments had been made.
16. Plaintiff filed replication to the written statement of defendant CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 8 of 20 No.9 denying the averment made therein and reiterating the contents of plaint. It was specifically pleaded that she had also executed sworn NOC/Affidavit dt 5.03.2007 regarding the said sale transaction and as such she was debarred from denying the factum of the said sale transaction of the suit property.
17. Defendant No.7 did not contest the case and defendant No.1 died during the pendency of the suit. Defendant No.9 after filling of written statement stopped appearing after appearing for few days and as such she was also proceeded against ex-parte.
18. On the pleadings of the parties following issues were framed vide order dated 17.09.2008 :-
1. Whether Dalip Singh was lawful owner of the property? OPP
2. Whether Dalip Singh executed agreement to sell dated 05.03.2007, in favour of the plaintiff? OPP
3. Whether the plaintiff is or has been ready to perform his part of contract? OPP
4. Whether the plaintiff is entitled for the specific performance of the contract? OPP
5. Whether the plaintiff is entitled to recover the damages and mesne profit as claimed of? OPP
6. Whether the plaintiff is entitled for other damages as claimed of? OPP
7. Whether the plaintiff is entitled for a decree of permanent injunction as claimed of? OPP
8. Whether the plaintiff is entitled for a decree of mandatory injunction as claimed of? OPP
9. Whether the suit of the plaintiff is not maintainable? OPD
10. Whether Dalip Singh was owner to the extent of 1/5th share in the suit property? OPD.
11. Relief.
19. In order to prove plaintiffs' case, plaintiffs examined himself as PW1 wherein he relied upon documents i.e. site plan Ex. PW-1/1, certified copy of agreement to sell Ex. PW-1/2, certified copy of power of attorney Ex. PW-1/3, certified copy of special power of attorney Ex. PW-1/4, original Will Ex. PW-1/5, original receipts for sum of Rs. 1 lakh and 14 lakhs Ex. PW-1/6 CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 9 of 20 and Ex. PW-1/7 respectively, original affidavits of Shri Dalip Singh Ex. PW- 1/8 and Ex. PW-1/9, legal notice Ex. PW-1/10, postal receipts Ex. PW-1/11 to Ex. PW1/19, UPCs Ex. PW-1/20 to Ex. PW-1/22, acknowledgment receipt card Ex. PW-1/23 to Ex. PW-1/26, written envelope Ex. PW-1/27, lease deed dated 16.12.1968 Mark A and Conveyance Deed dated 16.12.1968 Mark B. He was cross examined by Ld. Counsel for defendants.
20. Plaintiff also examined Sh. Narender Singh, Deputy Manager, Bank of Maharashtra, Karol Bagh as PW2 who brought documents i.e. account opening form of plaintiff, original cheques bearing No.8301182 and 830182 for Rs 9.0 Lakhs and Rs 4.0 Lakhs photocopies of which were Ex PW2/1 and Ex PW2/2 (OSR) and statement of bank accounts for period 1.10.2006 to 3.09.3007 Ex. PW-2/3.
21. Plaintiff also examined one public witness namely Naveen, Record Lifter, Department of Delhi Archives, Satsang Vihar Marg, Special Institutional Area, New Delhi as PW3 who brought the original Lease Deed 16.12.1968 and Conveyance deed 16.12.1968 photocopies of which were exhibited as Ex.PW-3/1 (OSR) and Ex.PW-3/2 (OSR) respectively.
22. Plaintiff also examined Sh. Tejender, UDC from the office of Sub-Registrar as PW4 and he relied upon documents Ex. PW-1/1 to Ex. PW- 1/5. Vide separate statement plaintiff closed plaintiff's evidence.
23. Defendant examined only defendant No.2 as DW1 and filed his affidavit Ex DW-1/A in examination in chief which was on the line of the written statement of Defendant No. 2 to 6 and 8 relying upon certified copy of order dt 17.06.2006 Ex DW1/1, copy of bills Mark-A and B, Copy of plaint Ex DW1/2, written statement Ex DW-1/3 and judgment and decree Ex DW-1/4 and DW1/5 respectively (same has been referred to in the affidavit as Mark C,D, E and F). He was duly cross examined by plaintiff.
CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 10 of 20
24. Ld. Counsels for respective parties have addressed their respective arguments and have called for returning findings in their respective favour.
25. After perusing pleadings, evidence, material on record and appreciating arguments of respective parties, issue wise findings are as under:-
ISSUE No.1 :- Whether Dalip Singh was lawful owner of the property? OPP ISSUE No. 10 :- Whether Dalip Singh was owner to the extent of 1/5th share in the suit property? OPD.
26. Both issues are taken up together as they are inter connected. Onus to prove issue No.1 is upon the plaintiff and onus to prove issue No.10 is upon the defendants No. 2 to 6 and 8.
27. There is no dispute that Lease Deed in respect of the land underneath the suit property was executed by the L&DO in favour of Dalip Singh and there is no dispute that Conveyance Deed in respect of super structure then existing on the land bearing no. 19, Nizamuddin (West) Market, New Delhi- 110013 was executed in favour of Dalip Singh. It is accepted proposition of law in India that there can be ownership in one person in respect of land and in another person in respect of the super structure. Thus given the record and exclusively going by the documents without taking into the consideration the stand of the defendant that 4/5 th share of consideration money was paid by the defendant, Dalip Singh was recorded lessee in respect of the land underneath the suit property and was recorded owner of the construction over the said land.
28. As far as issue of Dalip Singh being owner to the extent of 1/5th is concerned except for oral testimony that 4/5 th of the consideration amount CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 11 of 20 was paid from the istridhan of defendant No.1 and part contribution from her mother no documentary evidence was placed on record. Not only this, the oral testimony came from defendant No.2 who was hardly one year old when the suit property was leased and conveyed to Dalip Singh. It has been further pleaded by the defendants that super structure existing over the said land was renovated completely and the entire expenses for raising renovated structure and its maintenance was borne by the defendants. However, even this part of the stand of the defendant has not been proved specifically because the defendant failed to prove the bills and expenditure incurred in raising renovated structure.
29. It is settled principle of evidence that when there is documentary evidence oral evidence on the same point cannot be looked into. Since lease deed and conveyance deed are in favour of Dalip Singh, therefore, legal presumption is that it was he who paid for it and which fact cannot be disturbed through mere oral testimony of person who did not even has first hand knowledge. Hence, defendants have failed to prove that Sh. Dalip Singh was lessee/owner only to the extent of 1/5th share in the suit property.
Accordingly, issue No. 1 and 10 are decided against the defendants.
ISSUE No. 2:- Whether Dalip Singh executed Agreement to Sell dated 05.03.2007 in favour of plaintiff? OPP
30. Onus to prove this issue is upon the plaintiff. Plaintiff placed on record the certified copy of Agreement to Sell Ex. PW1/2 and also summoned witness from Registrar Office who brought the record of registration of Agreement to Sell in question. The witness from the Sub Registrar Office was not cross examined. Defendants No. 2 to 6 and 8 have denied the legality, validity and execution of agreement to sell Ex Pw1/2. It was further pleaded that documents Agreement to Sell etc. were null and void and do not confer any right upon the plaintiff. Although allegation of forgery has been leveled CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 12 of 20 against the plaintiff but there is no specific allegation as to whether the Agreement to Sell Ex PW1/2 and other documents bears the forged signature of Dalip Singh. Even in cross-examination, Agreement to Sell Ex. PW1/2 was not put to the plaintiff as being forged nor any suggestion was given to the effect that Agreement to Sell did not bear the signature of Dalip Singh, although it was suggested that plaintiff had not seen Dalip Singh signing any document and that Ex. PW1/2 is false and fabricated.
31. The Agreement to Sell contains the photograph of one sikh person but no question was put to the plaintiff that Sikh person was not Dalip Singh. Since Agreement to Sell is registered document and there is presumption in favour of the registered document that said document has been registered by the office of Sub Registrar after following due process of law i.e. after satisfying itself with the identity of the person appearing before him and recording satisfaction as to the contents of the documents and soundness of the person appearing before him.
32. Keeping in mind that specific question with respect to signature purported to be of Dalip Singh and photograph purported to be of Dalip Singh was not put to the plaintiff and further keeping in mind the above noted presumption of official work having been done as per law, it goes without saying that defendants accepted the signature and photograph to be of Dalip Singh. Therefore, in these circumstances, it can be said that plaintiff has successfully proved that Agreement to Sell was executed by Sh Dalip Singh in his favour.
Issue no. 2 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE No. 3 :- Whether the plaintiff is or has been ready to perform his part of contract? OPP
33. Onus to prove this issue is upon the plaintiff. This is the legal CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 13 of 20 requirement. In order to be entitled for the relief of specific performance, plaintiff has got to prove that he was or has always been and is always ready and willing to perform his part of contract. Plaintiff has pleaded his case in such a way so as to show that under the agreement to sell plaintiff was required to make only the entire payment which he alleged to have paid to Dalip Singh. So as per him he was not required to do any thing else though he pleaded that he was and has always been ready and willing to perform his part of the contract.
34. So the first examination under this circumstance is to see if he had paid the entire consideration amount to the Dalip Singh. As per plaintiff total sale consideration amount was agreed to be Rs. 15,00,000/- and sum of Rs.1,00,000/- in cash was paid to Dalip Singh on 14.02.2007 the date of finalisation of negotiation to bind him to the deal. It has been further pleaded by him that formal Agreement to Sell was executed and registered on 05.03.2007 and on that date plaintiff paid Rs. 13,00,000/- i.e. Rs 4,00,000/- by cheques bearing No. 830181 dated 14.02.2007 and Rs. 9,00,000/- by cheque bearing no. 830182 dated 05.03.2007. Said cheuqes were stated to have been duly encahsed by Dalip Singh. Remaining consideration amount of Rs. 1,00,000/- was to be paid at the time of execution of the Sale Deed, on conversion of the property from lease hold to free hold. However in the same very evening of 5.03.2007 Dalip Singh came to plaintiff disclosed past and continuing litigation with defendants, handed over the documents of litigation and represented that settlement had taken place and as considerable amount had been shared with them (defendants), he (Dalip Singh) was left with no money so plaintiff paid the said entire remaining money of Rs 1,00,000/- to Dalip Singh on 5.03.2007 itself after arraigning the same.
35. Plaintiff in his cross examination admitted that he did not confirm the factum of settlement or receiving of amount from defendants. His very act itself discloses that he did not act like ordinary prudent man.
CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 14 of 20 Normally upon disclosure by Dalip Singh of contentious relation with persons who are in possession of the property, plaintiff would have got angry upon Dalip Singh for having not disclosed his litigations with person who were in possession and consequently would have asked for cancellation of agreement and refund of already paid money. Secondly he would have stopped remaining further payment till the time persons in possession of the property confirms the settlement and readiness/agreement to vacate the suit property on 31.03.2007. But plaintiff did not act in this way which goes to show that plaintiff deliberately chosen to buy property for which he would have to undertake litigation. If this was not the case then plaintiff must have knowingly entered into transaction for lesser price than actually it could have fetched. Third possibility could have been that plaintiff taking advantage of the death of Dalip Singh might have laid claim on the basis of documents without paying him a single penny. Since Dalip Singh was the only person who knew of all transaction and he being no more plaintiff has heavy responsibility to prove his case beyond shadow of doubt. In this type of situation Court is also required to be on guard.
36. In order to prove the encashment of said cheques plaintiff called witness from the bank who brought the original cheques of Rs.9,00,000/- and cheque for Rs.4,00,000/- photocopies of which were exhibited as Ex. PW2/1 and Ex. PW2/2 respectively. He also brought Statement of plaintiff's bank account which shows that cheque 830181 of Rs.4,00,000/- was honoured on 22.02.2007 and cheque bearing No. 830182 of Rs.9,00,000/- was encashed on 09.03.2007. Plaintiff has not examined any eye witness in presence of whom cheques were given to Sh Dalip Singh.
37. Plaintiff has not led any evidence that the account in which these two cheques were honoured was actually of Dalip Singh involved in the present suit i.e. husband of defendant no. 1 and father of defendant no. 2 to 9. What he proved that these cheques were encashed into the account of Dalip CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 15 of 20 Singh, but did not lead evidence to the effect that account holder Dalip Singh is the same Dalip Singh who was father of defendants no. 2 to 9. Plaintiff was required to prove that amount were credited into the account of Dalip Singh, father of defendants No 2 to 8 because Dalip Singh died after 14 days of the execution of the agreement to sell and he himself was litigating with defendants. In other words Dalip Singh was not having cordial relation with defendants so defendants were not aware of his movements. So plaintiff has to prove but plaintiff failed to prove that cheuqes were encahsed or credited into the account of Dalip Singh involved in the present suit. The account holder may be different Dalip Singh as plaintiff did not summon the statement of account of or account opening form of Dalip Singh to show that he is the same Dalip Singh who father of defendants No. 2 to 9. .
38. Apart from this it is nowhere case of the plaintiff that cheque for Rs.4,00,000/- was given to Dalip Singh any date prior to 05.03.2007 whereas statement of bank account of plaintiff shows that cheque of Rs.4,00,000/- was encahsed on 22.02.2007. Plaintiff has placed on record the receipt Ex. PW1/7 executed purportedly by Dalip Singh which shows that cheque of Rs.4,00,000/- and Rs.9,00,000/- were delivered to Dilip Singh on 05.03.2007. Even in plaint it has been specifically pleaded in para 7 that "Shri Dalip Singh received a further sum of Rs 13,00,000/- on 5.03.2007 from plaintiff and executed following documents in favour of plaintiff." Ditto same averment was testified to by the plaintiff in his testimony in examination in chief.
39. In the receipt Ex. PW1/7 payment of Rs. 1,00,000/- has been specifically mentioned to have been made on 14.02.2007 which shows that plaintiff was conscious with respect to particulars regarding date of payments to be mentioned in the receipt. Therefore, if cheque of Rs.4,00,000/- was given prior to 05.03.2007 then plaintiff would have included the said date of delivery on the receipt or body of the agreement or at least in the pleading and examination in chief but plaintiff throughout had maintained stand that Rs CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 16 of 20 13,00,000 by way of two cheuqes of Rs 4,00,000/- and Rs 9,00,000/- was paid to Dalip Singh on 5.03.2007.
40. Plaintiff has not proved that the account in which these two cheques were honoured belonged to Dalip Singh S/o Jhanda Singh i.e. to sat father of defendants No. 2 to 6 and to whom the suit property belonged and he also did not explain as to how the cheque of Rs.4,00,000/- given to Dalip Singh on 5.03.2007 got to be encahsed in the alleged account of Dalip Singh on 22.02.2007. It raises serious doubt about the payment having been made to real Dalip Singh i.e. husband of defendant No.1 and father of defendants No. 2 to 6, particularly when seen in the background of the fact that Dalip Singh expired on 19.03.2007. In these circumstances, possibility cannot be ruled out that plaintiff even without paying the consideration amount has come forward to take benefit of the strained and contentious relation with family members of Dalip Singh who was bent on removing the defendants from the suit property.
41. Apart from this plaintiff did not examine the attesting witness or the notary public before whom the receipt was executed so as to show that plaintiff has performed his part of the contract by making the entire payment. In fact entire tenor of the case of the plaintiff is that he had already done his part of the contract i.e. entire payment and it was for Dalip Singh and since he had expired therefore it was for his LRs who have to perform their part of the contract. But plaintiff failed to prove that he had performed his part by making the entire payment of Rs.15 lacs or in other words has always been ready and willing to perform his part of the contract because when he pleads that he performed his part certainly he would not be willing to perform again. Even otherwise there is no evidence by the plaintiff that he is ready and willing to make the payments again and accordingly he cannot be said to have proved his readiness and willingness to perform his part of the contract.
Accordingly, issue no. 3 is decided against the plaintiff and in favour of the defendants.
CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 17 of 20 ISSUE No. 4 :- Whether the plaintiff is entitled for the specific performance of the contract? OPP
42. Onus to prove this issue is upon the plaintiff. Plaintiff has virtually filed suit for possession in the color of specific performance projecting that documentation requirement to transfer right, title and interest in the suit property unto the plaintiff was completed by the vendor himself during his life but could not deliver the actual, vacant and physical possession of the suit property due to his unfortunate demise prior to appointed date of delivery and vendor's LRs who are in possession, are not delivering possession in terms of the contract entered into. Therefore plaintiff has filed suit for specific performance of the contract for possession.
43. While recording findings on issue No.3 it was recorded that plaintiff failed to prove payment of amount of Rs 13,00,000/- into the account of Dalip Singh, husband of defendant No.1 and father of defendants. Plaintiff's pleading and evidence qua the payments are not in consonance with each other and couple with absence of evidence to the effect that cheque bearing No. 830181 and 830182 were enchashed into account of the very Dalip Singh who was predecessor-in-interest of defendants. Thus, plaintiff was held to have failed to prove his readiness and willingness and plaintiff assuming that he has made the entire payment under the contract did not lead any evidence to show his financial capacity and availability of fund and therefore on this sole ground alone plaintiff is not entitle for the relief.
44. Even assuming that plaintiff has made the entire payment this court is of considered opinion that plaintiff is not entitled for possession. The reason for said view is that admittedly Dalip Singh was the lessee in respect of the land underneath the superstructure by virtue of lease deed dt 16.12.1968 Ex PW3/1. Clause (b) of the Lease Deed reads as under:-
"(b) The Lessee shall before any assignment or transfer of the said premises hereby demise or any interest thereof obtain from the Lessor approval in writing of the said CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 18 of 20 assignment or transfer and all such assignees and transfree and the heirs of the Lessee shall be bound by all the covenants and condition herein contained and be answerable in all respects therefor."
45. It is not the case of the plaintiff that such permission as required vide above clause was obtained in writing by his vendor Dalip Singh nor is his case that paramount Lessor i.e. L&DO has mutated the property in his name in its record thereby according consent to the transfer. Under Section 108(q) of The Transfer of Property Act a lessee is under obligation to handover the possession to its/his lessor and none other. It is not the case of the plaintiff that it has obtained such permission from L&DO to have the possession of leasehold land from lessee. In between the lessor L& DO and lessee Dalip Singh or his heirs, the legal possession of the land underneath is with lessor L&DO. Admittedly, L&DO is not party to the present suit and therefore no order could be passed in the absence of party whose substantial interest will get directly affected. Prima facie any transfer in violation of the terms of the lease Ex PW3/1 may not be acceptable to the L&DO but in any case since said L&DO is not before the Court, this Court is not aware of the stand of L&DO qua the alleged transfer.
46. For valid transfer prior permission in writing is important also get highlighted by the subsequent clause (c) which also uses the expression "after obtaining permission". Since the transfer under the agreement is prima facie in violation of the terms of the Lease Deed and there is no post transaction approval from L& DO in terms of the said clause, hence there is no valid transfer and therefore, plaintiff cannot be held even on this ground entitle to relief of specific performance for possession.
Hence, issue No. 4 is decided against plaintiff and in favour of defendants.
ISSUE No. 5 :- Whether the plaintiff is entitled to recover the damages and mesne profit as claimed of? OPP CS No. 10131/16 Mohd. Javed Qureshi Vs. Gian Kaur & Ors. Page No. 19 of 20 ISSUE No. 6 :- Whether the plaintiff is entitled for other damages as claimed of? OPP ISSUE No. 7 :- Whether the plaintiff is entitled for a decree of permanent injunction as claimed of? OPP ISSUE No. 8 :- Whether the plaintiff is entitled for a decree of mandatory injunction as claimed of? OPP
47. Onus to prove all the above four issues is upon the plaintiff. However in view of the findings recorded on issue No. 3 and 4, above said four issues are decided against the plaintiff and in favour of defendants.
ISSUE No. 9 :- Whether the suit of the plaintiff is not maintainable? OPD
48. Onus to prove this issue is upon the plaintiff. In view of the reasons discussed in latter part of issue No. 4 regarding the violation of clause directing prior permission before transfer, absence of post approval from L& DO as well absence of L&DO as party before this court, suit is not maintainable. Accordingly, issue No.9 is decided against the plaintiff and in favour of defendants.
Relief In view of the findings recorded on all issues, suit of the plaintiff is hereby dismissed.
Parties to bear their own cost of litigation.
Decree sheet be drawn accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 20 pages) Delhi/31.08.2016
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