Delhi District Court
Smt. Santosh vs (1)Smt. Sonpali on 26 November, 2014
Suit No. 336/13
IN THE COURT OF MS. SHEFALI SHARMA CIVIL JUDGE
(NORTH): ROHINI COURTS: DELHI
Suit No.336/13
Smt. Santosh
W/o Late Sh. Chandan Singh
R/o M604, Mangol Puri,
Delhi
Plaintiff
Versus
(1)Smt. Sonpali
W/o Late Sh. Swarn Singh
R/o House No. J547
J.J. Colonly,
Shakur Pur,
New Delhi
(2)Sh. Naresh Singh
S/o Late Sh. Swarn Singh
R/o House no. J547,
J.J.Colony,
Shakur Pur,
Delhi
(3)Sh. Pritam Singh @ Pitambar Singh
Smt. Santosh Vs. Smt. Sonpali 1/31
Suit No. 336/13
S/o Sh. Kuldeep Singh
R/o WZ5, Shakar Pur,
Delhi110034
........Defendant
Date of Institution : 20.11.2008
Date Reserve for orders : 26.11.2014
Date of Decision : 26.11.2014
Judgment
This is suit for declaration, possession, mandatory and
permanent injunction filed by the plaintiff against the defendants.
Brief facts are that:
CASE OF THE PLAINTIFF
(1) It is the case of the plaintiff that her husband late Sh. Chandan
Singh was slum dweller and DDA carried out a survey and the plot bearing
no. J547, Shakur Pur, JJ Colony was alloted to Sh. Chanden Singh vide
receipt no. 20.08.1997 under the rehabilitation scheme. That the husband of
the plaintiff thereafter raised superstructure on the said plot with his own
funds and the premises consisted ground floor, first floor. From the
wedlock of the plaintiff with Sh. Chandan Singh one daughter namely Smt.
Renu was born. There was also a step son of late Sh. Chandan Singh
Smt. Santosh Vs. Smt. Sonpali 2/31
Suit No. 336/13
namely Sh. Srawan Singh who later on expired. That defendant no 1 is the
wife of late Sh. Srawan Singh and defendant no. 2 is his son.
Sh. Chandan Singh during his life time due to misdeeds of Sh.
Swarn Singh executed the documents i.e. GPA, AGREEMENT TO SELL
RECEIPT AND AFFIDAVIT dated 17.05.1995 in favour of the plaintiff
and by virtue of these documents he transferred all rights, title and interest
in favour of the plaintiff and she became the owner for all practical
purposes. That after the death of Sh. Swarn Singh, the defendants were
living in rented accommodation and on the persuasion of common friends
and relatives, the plaintiff on sympathetic consideration allowed the
defendant to occupy the first floor portion on "leave and license basis."
That the plaintiff thereafter had gone to visit her ailing daughter
Smt. Renu and stayed with her for few days, that when the condition of Smt
Renu, daughter of defendant deteriorated she was admitted in private
nursing home and huge amount of money was required for her treatment.
In such circumstances, the plaintiff was constrained to take loan from one
Sh. Preetam Singh @ Pitambar Singh, defendant no. 3 herein and was
introduced to him through her step grand son i.e. defendant no. 2. That
plaintiff was constrained to take financial assistance from Preetam Singh
Smt. Santosh Vs. Smt. Sonpali 3/31
Suit No. 336/13
and upon his persuasion the plaintiff put signatures on certain typed papers
although without knowing its contents as the plaintiff is an illiterate lady
and it is the case of the plaintiff that under the garb of executing the
documents for the alleged mortgage, Peetamber Singh got executed sale
documents of the suit property viz. GPA, Will etc dated 18.01.2005 and the
plaintiff came to know of the said documents in another civil litigation
which was earlier pending between the parties and that the defendant no 1
had allegedly purchased the suit property from Sh. Preetam Singh. It is the
case of the plaintiff that since she had taken only loan from Preetam Singh
he had no authority to sell the suit property to the defendant no. 1. That all
the defendants in connivance with each other have been forcibly threatening
the plaintiff to dispossess her from the suit property and also trespassed in
portion of the suit property and started construction. The plaintiff lodged
various police complaints and eventually filed the present suit for
declaration, possession and injunction.
Vide the instant suit it is prayed that a decree of declaration be
made in favour of plaintiff and against the defendants No. 3 that the alleged
documents dated 18.01.2005 allegedly executed by plaintiff in favour of
defendants No. 3 comprising of General Power Of Attorney and will be
Smt. Santosh Vs. Smt. Sonpali 4/31
Suit No. 336/13
declared as null and void. A decree of possession be passed in favour of
the plaintiff and against the defendant in respect of Plot no. J547,
measuring 25 sq yards. Shakur Pur, New Delhi and further the defendants,
their agents, associates be restrained by way of injunction from selling,
mortgaging, transferring, raising any construction or claiming any right on
the strength of the documents dated 18.01.2005 and 09.08.2005.
CASE OF THE DEFENDANTS
(2) In a joint written statement filed on behalf of both the
defendants no. 1 and 2, the defendants have admitted that the plaintiff
obtained a loan of Rs. 50,000/ from defendant no. 3. However, the
defendants have claimed that they have purchased the suit property from the
defendant no. 3 by virtue of the sale documents dated 09.08.2005.
Rest of the allegations in the plaint are denied and it is
submitted that the plaintiff has transferred the property in the name of Sh.
Preetam Singh, defendant no. 3 who in fact sold the property to defendant
no.1 and it is the defendant no. 1 who is actual owner of the suit property.
In fact the defendants have admitted that the plaintiff obtained
a loan of Rs. 50,000/ from defendant no. 3. The defendants have claimed
that they have purchased the suit property from the defendant no. 3 by
Smt. Santosh Vs. Smt. Sonpali 5/31
Suit No. 336/13
virtue of the documents dated 09.08.2005 after repaying the loan on behalf
of the plaintiff.
It is submitted that the defendant no. 2 was working as a packer
of leather jacket in the factory of said Pitambar and Pitambar also received
the money of Rs. 50,000/ in cash from the defendant no. 1 and also
executed the documents in favour of the defendant no. 1 viz. G.P.A, sale
agreement and other documents which are registered with the sub registrar
office Pitampura, Delhi. It is strictly denied that on account of misdeeds of
Sh. Swarn Singh, Sh. Chandan Singh during his life time executed the
documents i.e. G.P.A, Agreement to sell and affidavit dated 17.05.1995, in
favour of the plaintiff and by virtue of these documents he transferred all
rights, title and interest in favour of the plaintiff and it is submitted that on
17.12.2005, the plaintiff came at the suit property and forced the defendant
to vacate the suit property immediately. It is strictly denied that the plaintiff
was retaining occupying and in possession of the ground floor portion of
house no. 547, Shakur Pur, J.J. Colony, New Delhi and went to see her
ailing daughter and she remained there for three days under compelling
circumstances. It is submitted that the defendants are residing in the suit
property. That the plaintiff along with their associates came at the suit
Smt. Santosh Vs. Smt. Sonpali 6/31
Suit No. 336/13
property in the morning on 28.12.2005 at about 7.00 am and they threatened
to kill the defendants, if the suit property is not handover defendant no. 1
sent various complaints through postal department post office Karkardooma
Court, Delhi on 28.12.2005 at about 1.00 pm and postal receipts no. 4450,
4448, 4449 to the ACP, DCP concern along with the SHO, P.S. Saraswati
Vihar and both the defendants also met personally to the SHO on
28.12.2005 at about 11.00 a.m. but the police officials did not take any
action against the plaintiff and her associates and thereafter the present
defendants filed a civil suit before the court of Sh. Sumit Dass, C.J. Tis
Hazari, Delhi vide civil suit no. 244/06 and stay had been granted in favour
of the defendants, although the same was disposed off, thereafter, the
plaintiff filed the present suit for possession which is without any cause of
action, so the present suit is liable to be dismissed.
Defendant no 3 is already exparte vide order dated 13.05.2010.
REPLICATION
(3) Plaintiff filed the replication to the WS wherein the contents of
the WS are denied and the averments in the plaint are reiterated. The same
are not being reproduced herein for the sake of brevity
Following issues are framed vide order dated 29.10.2014.
Smt. Santosh Vs. Smt. Sonpali 7/31
Suit No. 336/13
1.Whether the plaintiff is entitled for the relief of declaration as prayed for? (OPP)
2. Whether the plaintiff is entitled for the decree of possession as prayed for ? (OPP)
3. Whether the plaintiff is entitled for the decree of injunction as prayed for? (OPP) Addition issue is framed on 24.07.2014.
4. Whether suit is beyond the pecuniary jurisdiction of this court. ?OPD EVIDENCE ON BEHALF OF PLAINTIFF (4) The plaintiff adduced as many as 9 witnesses in support of her contentions.
1. PW1 is Devender Singh, UDC had brought summons record viz. GPA, Will purportedly executed by Smt. Santosh in favour of Preetam Singh son of Sh. Kuldeep Singh Ex. PW1/A and PW1/B respectively.
2. PW2 is HC Daler Singh, North West PS. Saraswati Vihar had brought summons record with regard to DD Entry 15B dated Smt. Santosh Vs. Smt. Sonpali 8/31 Suit No. 336/13 02.03.2007 upon complaint given by Smt. Renu against Smt. Sonpali and her son which was registered as DD NO. 51/B Ex PW2/A and the complaint Ex PW2/B.
3. PW3 is Ct. Bijender Singh posted RTI Cell North West had brought summons record with regard to the complaint of the plaintiff Ex PW3/B and copy of the reply Ex PW3/A.
4. PW 4 is Ct. Sanjeet Kumar, PS Saraswati Vihar who brought Rojnamcha DDA entry no. 15/B and the copy of the complaint dated 02.03.2007 and the same is EX PW 4/A.
5. PW5 is Jagvinder Mann assistant ahlmad in the court of Sh.
Bhupender Singh who brought summons record regarding complaint filed by Smt. Santosh i.e. plaintiff herein against the defendant under section 420/468/471/506/34 IPC, copy of the same is marked as mark A. He was not cross examined by the defendant despite opportunity.
6. PW6 who is plaintiff her self who vide her affidavit Ex PW6/A reiterated contents of the plaint and relied on document which are marked as mark A to F and the documents PW1/A to PW5/A . Mark A copy of the GPA which was allegedly Smt. Santosh Vs. Smt. Sonpali 9/31 Suit No. 336/13 fraudulently got executed by the defendant no. 3 in his favour from the plaintiff dated 18.01.2005 and the copy of the Will is marked as Mark B. Police Complaint dated 30.08.2005 P.S Saraswati Vihar against the defendant no 2 is marked as mark C . Police Complaint is marked as mark D. Criminal complaint lodged by the plaintiff on 13.05.2007 is marked as mark E. RTI information regarding status police complaints and the reply received dated 6.5.2008 is marked as mark F.
7. PW7 is Smt. Renu who vide her affidavit Ex PW7/A reiterated the contents of the plaint and relied on documents which are marked 1 to 4. Mark 1 is GPA dated 17.05.1995 executed by Chandan Singh in favour of Smt. Santosh, mother of PW. Mark 2 is receipt, mark 3 is affidavit and mark 4 is agreement to sell.
8. PW8 Sh. Vikram, LDC/Record Room Civil, Tis Hazari Courts, Delhi who brought summons record i.e. file of Suit No. 244/06 titled as Smt. Sonpali & Ors. Vs. Smt. Santosh Devi & Ors. As per record, the complaint dated 28.12.2005 filed by plaintiff in case titled as Smt. Sonpali & Ors. Vs. Smt. Santosh Devi & Smt. Santosh Vs. Smt. Sonpali 10/31 Suit No. 336/13 Ors. which has been decided by Sh. Sumit Dass, Ld. Civil Judge, Delhi. The photocopy of the same is Ex. PW8/1.
9. Mr. Romanus Ekka, LDC, Record Room Civil, Tis Hazari Courts, Delhi who had brought the summons record i.e. Complete file of case titled as Smt. Sonpali & Ors. Vs. Smt. Santosh Devi & Ors bearing suit no. 244/06. Copy of the plaint filed by defendants no. 1 and 2 in the said suit is Ex. PW9/A and WS filed by the plaintiff and her daughter in said suit is Ex. PW9/B.
5. EVIDENCE ON BEHALF OF THE DEFENDANTS The defendants adduced 6 witnesses.
(a) DW 1 is Sh. Vikram, LDC, record keeper had brought the summons record with the plaint already Ex 9/A along with order dated 6.10.2007 and statement of Smt. Santosh and Smt. Renu recorded on 20.09.2007 as well as statement of Smt. Sonpali (defendant) regarding the disposal of the suit for permanent injunction bearing suit no. 244/2006 titled as Santosh Vs. Santosh vide Goshwara no. 160.
(b) DW 2 is a HC Ram Chander had brought summoned complaint
Smt. Santosh Vs. Smt. Sonpali 11/31
Suit No. 336/13
record dated 28.12.2005 however he testified as per order of Ld ACP North West dated 19.03.2003 Ex as DW2/X the said record has already been weeded out and destroyed. He was accordingly discharged.
(c) DW3 Sh. Ravinder Kumar Chikara, reader to Subregistrar office had brought summons record viz. GPA executed by the plaintiff in favour of Preetam Singh dated 18.01.2005 Ex as DW3/A and GPA executed by Pitambar Singh in favour of the defendant no. 1 dated 09.08.2005.
(d) DW5 is defendant no. 1 herself Smt. Sonpali who vide her affidavit DW 5/1 reiterated the contents of the written statement and relied on the document already executed DW 5/A which is GPA dated 18.01.2005 and the Will executed as DW5/B she also relied on the copy of the mortgage deeds/will agreement Ex DW5/C postal receipts are executed as DW5/D, copy of the complaint dated 28.12.2005 marked as mark A and the copy of the electricity bill Ex DW5/E she was cross examined by ld counsel for the plaintiff on two dates viz. 9.10.2013 and 28.11.2013.
Smt. Santosh Vs. Smt. Sonpali 12/31
Suit No. 336/13
(e) DW 6 is Sh. Sunil Kumar who is property dealer who testified
that he is the neighbour of the defendant and the suit property had been alloted in the name of Sh Chandan Singh and plaintiff was merely a tenant in the suit property and she was successful in procuring documents in the name of Pitambar Singh. On the basis of these forged documents she sold the property one Sh. Pitamber Singh and the said property got transferred in the name of the defendant no. 1 by Pitambar Singh. That plaintiff was merely a tenant and not the wife of Sh. Chadan Singh. It is further testified that she has not valued properly for the purpose of court fees and jurisdiction.
In his crossexamination the said witness stated that he has no personal knowledge of the documents which were executed between the plaintiff and Sh. Pitambar Singh and his knowledge is merely a hearsay. He could not file any cogent evidence to show that what was the correct market value of the property and again reiterated he is deposing merely on hearsay knowledge.
(f) DW7 is Naresh Kumar i.e. defendant no. 2 herein. He vide his affidavit DW7/A reiterated the contents of the written Smt. Santosh Vs. Smt. Sonpali 13/31 Suit No. 336/13 statement.
(6) I heard Mr Hansraj Singh, ld counsel for the plaintiff and Ms. Mithlesh Gauram, ld counsel for the defendant and meticulously perused the record.
My issues wise findings are as follows:
Issue No:1 Whether the plaintiff is entitled for the relief of declaration as prayed for? (OPP) The onus to prove this issue was upon the plaintiff. The plaintiff vide her testimony as PW 6 has proved that the suit property bearing house no. J547 JJ Colony, Shakur Pur was alloted to her husband late Sh. Chandan Singh DD receipt dated 20.08.1997 and Sh. Chandan Singh had transferred his rights in the suit property in favour of the plaintiff executing the GPA, Agreement to sell, Will, receipt, affidavit dated 17.05.1995. That late Sh. Swaran Singh step son of the plaintiff and husband of the defendant no. 1 were merely allowed to reside on the first floor of the suit property on license basis thereafter the plaintiff's daughter Smt. Renu fell ill and the plaintiff was constrained to take loan of Rs.
50,000/ from defendant no. 3 and in return the plaintiff mortgaged the suit property with defendant no. 3. It is further proved that the plaintiff had Smt. Santosh Vs. Smt. Sonpali 14/31 Suit No. 336/13 repaid the entire mortgage amount but was shocked to see in the month of December, 2005, when she returned from her daughter house, defendants no. 1 and 2 broke open the lock of ground floor and had thrown away the articles of the plaintiff .
(7) In support of her contentions, the plaintiff proved the documents Ex PW1/A to Ex PW5/A. It is the case of the plaintiff that defendants no. 1 and 2 wrongfully and fraudulently procured the GPA, Will, agreement to sell etc from sh. Pritam Singh, defendant no. 3 and the said documents be declared as null and void.
The plaintiff has proved the fact that she made several complaints to the police regarding the same vide testimony of PW3 i.e. Ct. Bijender Singh posted RTI Cell North West had brought summons record with regarad to the complaint of the plaintiff Ex PW3/B and copy of the reply Ex PW3/A and PW 4 is Ct. Sanjeet Kumar, PS Saraswati Vihar who brought Rojnamcha DDA entry no. 15/B and the copy of the complaint dated 02.03.2007 and the same is EX PW 4/A. On the other hand, it is the case of the defendants that they had purchased the suit property from Sh. Pritam Singh and are in possession of Smt. Santosh Vs. Smt. Sonpali 15/31 Suit No. 336/13 the same. At the very outset, before appraisal of the evidence adduced on behalf of both the parties, it is pertinent to note the admitted facts.
1. It is admitted by the defendants that husband of plaintiff was the owner of the suit property i.e. Sh. Chandan Singh who had executed the property documents favour of plaintiff during her life time on 17.05.1995.
2. It is further admitted that the plaintiff on the basis of the said documents had taken a loan from defendant no. 3 Sh. Pitambar Singh for a sum of Rs. 50,000/ and mortgaged the suit property.
3. The defendants have also admitted the loan agreement/mortgage deed which is marked as Ex DW5/C. It has been held by Superior Courts in catena of cases that the admitted fact need not be proved in terms of section 58 of the Indian Evidence Act. This basically means that the fact which has been admitted by one party need not be proved.
Further defendant no. 3 Sh. Pritam Singh did not come forward to contest the case and was eventually proceeded exparte vide orders dated 13.05.2010. Thus he is deemed to have admitted the intention of the plaintiff.
Smt. Santosh Vs. Smt. Sonpali 16/31 Suit No. 336/13 The moot point of controversy that thus remains between the parties is that as per the plaintiff she had only mortgaged the property and continues to be owner and some documents were fraudulently got signed by Sh. Pitambar Singh. On the other hand stand taken by the defendants is that they had repaid the sum of Rs. 50,000/ to the defendant no. 3, Sh. Pitambar Singh and thereafter purchased the suit property from Sh. Pitambar vide document i.e. GPA, agreement to sell, Will dated 9.8.2005.
The document, as is stated above, Ex DW5/C which is mortgage/loan agreement is in admitted document. From perusal of the said document it is reflected that defendant no. 3 had granted a loan of Rs. 50,000/ to the plaintiff on 18.01.2005 for a period of six months and the plaintiff mortgaged the suit property with the defendant no. 3 by pledging title documents with defendant no. 3. However, as per terms and conditions defendant no. 3 could use the said documents only for the purpose of recovering of loan amount and remaining amount was to be given back to the plaintiff. The documents executed between the plaintiff and defendant no. 3 dated 18.01.2005 were merely for the purpose of an additional security against loan and did not carry any force of transfer of title in an immovable property.
Smt. Santosh Vs. Smt. Sonpali 17/31 Suit No. 336/13 The defendant further admitted that Sh. Chandan Singh has executed transfer documents in favour of the plaintiff qua the suit property which was used for the purposes of mortgage. In her crossexamination the defendant as DW5 has categorically admitted that plaintiff had obtained the said loan from Sh. Pitambar Singh for a sum of Rs. 50,000/ Her cross examination is reproduced herein...........
"Smt. Santosh got prepared/executed the documents of ownership from Chandan Singh in her name & on the basis of those documents Smt. Santosh mortgage house no. J547 JJ Colony, Shakur Pur with Pitambar Singh. Smt. Santosh was residing in house no J547 JJ Colony, Shakur Pur with Chandan Singh during his life time. It is correct that on our assurance Pitambar had given loan to Smt. Santosh. It is correct that Smt. Santosh had mortgaged House J547 JJ Colony, Shakur Pur to Pitambar Singh along with the documents."
It is evident going by version of the defendant who is purportedly deriving title from Sh. Pitambar Singh, if the plaintiff did not Smt. Santosh Vs. Smt. Sonpali 18/31 Suit No. 336/13 have any right to mortgage the suit property to Sh. Pitambar Singh, no right would have transferred to Sh. Pitambar Singh and thus consequently no right would have transferred to defendant no. 1 herself. The terms and conditions of the admitted loan mortgage agreement clearly shows that Sh. Pitambar Singh had no right title or interest suit property.
As per the version of the defendant they repaid the entire amount of loan sum of Rs. 50,000/ to Sh. Pitambar Singh and thereafter purchased the suit property from him. Not a single document has been filed on behalf of the defendant to show that how, when, and by which mode did they repay the said amount to Sh. Pitambar Singh.
Further the document executed by Sh. Pitambar Singh in favour of defendant no. 1 dated 9.8.2005 are merely GPA, Agreement to sell, affidavit etc. The Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana 2012(1) SCC 656 has held that :
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey Smt. Santosh Vs. Smt. Sonpali 19/31 Suit No. 336/13 title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an 17 end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
In the Suraj Lamp Case (supra), the Hon'ble Supreme Court reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfer' or 'sales' and that such transactions cannot be treated as completed transfers or conveyance.
Smt. Santosh Vs. Smt. Sonpali 20/31 Suit No. 336/13 Thus there is no registered sale deed which could transfer the right in immovable property in favour of the defendants no. 1. Further defendant no. 1 on one hand says that plaintiff had no right in the property and on the other, taking a contradictory view states that Sh. Pitambar Singh sold the property to defendant no. 1 and Sh. Pitambar Singh derive his right from plaintiff by virtue of admitted mortgage.
At the very outset it is pertinent to note the law of mortgages as per section 58 of Transfer of Property Act.
There are various kinds of mortgages under the TPA Act and the basic characteristic of each kind of the mortgage can be quoted as under:
(1) Simple Mortgage: (a) the Mortgagor undertakes personal liability.
(b) No possession is delivered. (c) There is no foreclosure (sec 67) (d) No power of sale out of court, but a decree for sale of the mortgaged property must be obtained (e) it must be effected by a registered instrument even if the consideration is below Rs. 100.
(2) Mortgage by conditional sale: (a) the Mortgagor ostensibly sells that mortgaged property (b) the condition is that the sale shall be absolute in default of payment on a particular date or that the sale shall be void on such payment and the property retransferred (c) the remedy of the Smt. Santosh Vs. Smt. Sonpali 21/31 Suit No. 336/13 registered writing if the consideration is Rs. 100 or upwards, if less than Rs 100 , it may be effected by delivery of the property or by a registered instrument (e) It must be created by one document and not by two documents.
(3) Usufructuary mortgage (a) There is delivery of possession to the mortgagee . (b) He is to retain possession untill repayment of the money and to receive rents and profits or part thereof in lieu of interest,or in payment of the mortgage money (c) There is redemption when the amount due is personally paid or is discharged by rents and profits received (d) There is no remedy by sale or foreclosure (e) If for Rs. 100 or upwards , it must be registered , if below Rs. 100, it may be by registered deed or by delivery of the property. (4) English mortgage: (a) It is followed by delivery of possession. (b) There is a personal covenant to pay the amount. (c) It is effected by an absolute transfer of property with a provision for retransfer in case of repayment of the amount due. (d) The remedy is by sale and not by foreclosure (sec 67) .(e) Power of sale out of court is conferred on certain persons circumstances (sec. 69).
(5) Equitable mortgage. i.e. mortgage by deposit of title deeds: It is
Smt. Santosh Vs. Smt. Sonpali 22/31
Suit No. 336/13
effected by deposit of material title deeds, no advances already made or to cover future advances.
(6) Anomalous Mortgage: (a) It now includes a simple mortgage, a usufructuary mortgage and a mortgage by conditional sale (b) Possession may or may not be delivered (c) The remedy is by sale, or by foreclosure, if the terms of the mortgage permit it (d) if for Rs. 100 or upwards it must be registered, if below Rs. 100, it may be by a registered deed or by delivery of possession.
As per meaningful reading of the terms and conditions of the loan/mortgage agreement marked Ex. PW5/C, Sh. Pitambar Singh never acquired any title or interest in the suit property. In case of failure of plaintiff to repay the loan amount, appropriate remedy available with Sh. Pitambar Singh was either to file a suit for recovery of his loan amount or suit for foreclosure. But there is nothing on record to show the same.
Thus when Sh. Pitambar Singh never acquired any right title or interest in the suit property consequently he had no right to sell the same to defendants no. 1 and the documents executed by Sh. Pitambar Singh in favour of defendant no. 1 have no force in law.
With these observations this issue is decided in favour of Smt. Santosh Vs. Smt. Sonpali 23/31 Suit No. 336/13 plaintiff.
Issue No:2 Whether the plaintiff is entitled for the decree of possession as prayed for ? (OPP) The onus to prove this issue was on the plaintiff. It is proved by the plaintiff that Sh. Chandan Singh during his life time executed the documents i.e. GPA, AGREEMENT TO SELL, RECEIPT AND AFFIDAVIT dated 17.05.1995 in favour of the plaintiff and by virtue of these documents he transferred all rights, title and interest in favour of the plaintiff and she became the owner for all practical purposes. That after the death of Sh. Swarn Singh, the defendants were living in rented accommodation and on the persuasion of common friends and relatives, the plaintiff on sympathetic consideration allowed the defendant to occupy the first floor portion on "leave and license basis."
That the plaintiff thereafter had gone to visit her ailing daughter Smt. Renu and stayed with her for few days, when that the condition of Smt Renu, daughter of defendant deteriorated she was admitted in private nursing home and huge amount of money was required for her treatment. In such circumstances, the plaintiff was constrained to take loan from one Sh. Preetam Singh @ Pitambar Singh, defendant no. 3 herein and was Smt. Santosh Vs. Smt. Sonpali 24/31 Suit No. 336/13 introduced to him through her step grand son i.e. defendant no. 2. That plaintiff was constrained to take financial assistance from Preetam Singh and upon his persuasion the plaintiff put signatures on certain typed papers although without knowing its contents as the plaintiff is an illiterate lady and it is the case of the plaintiff that under the garb of executing the documents for the alleged mortgage, Peetamber Singh got executed sale documents of the suit property viz. GPA, Will etc dated 18.01.2005 and the plaintiff came to know of the said documents in another civil litigation which was earlier pending between the parties and that the defendant no 1 had allegedly purchased the suit property from Sh. Preetam Singh. It is the case of the plaintiff that since she had taken only loan from Preetam Singh he had no authority to sell the suit property of the defendant no. 1. That all the defendants in connivance with each other have been forcibly threatening the plaintiff to dispossess her from the suit property and also trespassed in the suit property and started construction. The plaintiff lodged various police complaints The plaintiff has proved the police complaints vide testimony of PW2 who is HC Daler Singh, North West PS. Saraswati Vihar and had brought summons record with DD Entry 15B dated 02.03.2007 upon Smt. Santosh Vs. Smt. Sonpali 25/31 Suit No. 336/13 complaint given by Smt. Renu against Smt. Sonpali and her son which was registered as DD NO. 51/B Ex PW2/A and the complaint Ex PW2/B. PW3 is Ct. Bijender Singh posted RTI Cell North West had brought summons record with the complaint of the plaintiff Ex PW3/B and copy of the reply Ex PW3/A. PW 4 is Ct. Sanjeet Kumar, PS Saraswati Vihar who brought Rojnamcha DD entry no. 15/B and the copy of the complaint dated 02.03.2007 and the same is EX PW 4/A. Further it was the case of the defendant that she is the owner of the suit property. However, in view of aforesaid discussion, it is clear that the defendant miserably failed to prove that she is the owner of the suit property and the documents in her favour have no force in law as is discussed in my findings of issue no. 1. Even the defendants could not produce any document except for one electricity bill Ex DW5/E to show her lawful an continuous possession in the suit property as was alleged by her.
The next question which arises is in what capacity defendant entered into suit property. As per version of the plaintiff vide her testimony as PW6 she has proved that she had permitted the defendant as a licensee to reside in the suit property, defendant no. 1 being a daughter in law of the step son of the plaintiff. It is settled possession that in case of license even Smt. Santosh Vs. Smt. Sonpali 26/31 Suit No. 336/13 if licensee is in the occupation of the premises, the actual possession remains with the owner. Since the defendant has failed to prove that she is the owner of the suit property, she had at the most in capacity of the daughter in law of the plaintiff had right to reside in the suit premises. However, by filing the present suit for possession and various complaints, license in favour of defendants no. 1 and 2 can be deemed to be terminated. Thereafter, status of defendant in the suit premises becomes that of a trespasser and in fact the plaintiff has proved various complaints which have been lodged against the defendant for trespassing in suit property and even carrying out illegal constructions in the suit property. Thus the defendant could not prove any legal right to reside in suit property. Hence, in view of the discussion and in terms of my findings in issue no. 1 even this is decided in the favour of plaintiff and she is entitled to recover the possession from the defendants.
Issue No:3 Whether the plaintiff is entitled for the decree of injunction as prayed for? (OPP) There is settled law that consequential relief flows from the main relief of declaration as is already decided in issue no. 1. In view of my findings in issue no. 1. Even this issue is decided in favour of the plaintiff.
Smt. Santosh Vs. Smt. Sonpali 27/31
Suit No. 336/13
Issue no:4 Additional issue framed on 24.07.2014.
Whether suit is beyond the pecuniary jurisdiction of this court. ?OPD The plaintiff has filed the present suit on the basis of documents viz. GPA, will, etc dated 18.01.2005 executed between the plaintiff and defendant no. 3 be declared null and void and the said issue no. 1 as discussed above has been decided in favour of the plaintiff. In case the party to a sale deed seeks its cancellation/declaration that it be declared as null and void it has to pay ad valorem court fees on the consideration stated in the sale documents. For this reliance is placed on the case of of Suhrid Vs. Randhir Singh decided on 09.03.2010 by the Hon'ble Supreme Court in SLP 6745 of 2009. The preposition of law laid down by the Hon'ble Supreme Court as under.
............ if `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 nonbinding. 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 advalorem court fee on the consideration Smt. Santosh Vs. Smt. Sonpali 28/31 Suit No. 336/13 stated in the sale deed.
In the present case the plaintiff was executant which was fraudulently got procured from her by defendant no. 3 and the consideration amount of Rs. 50,000/ .The plaintiff has already paid the court fees of Rs. 3100/ (Three thousand one hundred) in the present case. Further as regards the relief of possession the plaintiff has proved that she had merely permitted the defendant no. 1 earlier as a licensee to reside in the suit property being daughterinlaw of plaintiff's step son . In the case of Joseph Severance and Ors. V. Benny Mathew and Ors, the Hon'ble Supreme Court has held a suit for mandatory injunction alleging continued occupation by a licensee after license was revoked was held to be maintainable.
Thus it clearly shows that in case of license, actual legal possession remained with the plaintiff herself and even a suit for mandatory injunction would have been maintainable and thus this court of the opinion that the plaintiff has correctly prima facie valued the suit for the purposes jurisdiction and the same is within pecuniary jurisdiction of this court. Further onus to prove this issue was upon the defendant.
Not an iota of substantial oral or documentary evidence has Smt. Santosh Vs. Smt. Sonpali 29/31 Suit No. 336/13 been adduced on behalf of the defendant to show that the suit is not in the pecuniary jurisdiction of this court. The only evidence adduced is that of DW6 Sh. Sunil Kuamr who is property dealer but in his crossexamination the said witness stated that he has no personal knowledge of the documents which were executed between the plaintiff and Sh. Pitambar Singh and his knowledge is merely a hearsay. He could not file any cogent evidence to show that what was the correct market value of the property and again reiterated he is deposing merely on hearsay knowledge.
Thus the defendant has failed to discharge its burden of proving the instant issue. In view of these findings the issue is disposed off accordingly.
Relief: The suit of plaintiff is decreed. Plaintiff is entitled to relief of declaration, possession and injunction as prayed for.
It is declared that in favour of plaintiff and against the defendants No. 3 that the alleged documents dated 18.01.2005 allegedly executed by plaintiff in favour of defendants No. 3 comprising of General Power Of Attorney and will are null and void and have no force in law. Further the plaintiff is entitled to the relief of possession against the defendants in respect of Plot no. J547, measuring 25 sq yards. Shakur Pur, Smt. Santosh Vs. Smt. Sonpali 30/31 Suit No. 336/13 New Delhi as shown in the site plan attached with the plaint and the defendants shall vacate and handover the peaceful vacant possession of the suit premises to the plaintiff within three months from the passing of this judgment and further the defendants, their agents, associates are restrained by way of injunction from selling, mortgaging, transferring, raising any construction or claiming any right on the strength of the documents dated 18.01.2005 and 09.08.2005.
Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 26.11.2014.
(SHEFALI SHARMA)
CIVIL JUDGE (NORTH)
ROHINI,DELHI/26.11.2014
Smt. Santosh Vs. Smt. Sonpali 31/31
Suit No. 336/13
Suit No.336/13 Smt. Santosh Vs. Smt. Sonpali etc.
26.11.2014
Present: None.
Vide separate judgment of even date, the suit of plaintiff is decreed. Plaintiff is entitled to relief of declaration, possession and injunction as prayed for.
It is declared that in favour of plaintiff and against the defendants No. 3 that the alleged documents dated 18.01.2005 allegedly executed by plaintiff in favour of defendants No. 3 comprising of General Power Of Attorney and will are null and void and have no force in law. Further the plaintiff is entitled to the relief of possession against the defendants in respect of Plot no. J547, measuring 25 sq yards. Shakur Pur, New Delhi as shown in the site plan attached with the plaint and the defendants shall vacate and handover the peaceful vacant possession of the suit premises to the plaintiff within three months from the passing of this judgment and further the defendants, their agents, associates are restrained by way of injunction from selling, mortgaging, transferring, raising any construction or claiming any right on the strength of the documents dated 18.01.2005 and 09.08.2005.
Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
(SHEFALI SHARMA)
CIVIL JUDGE NORTH
ROHINI/26.11.2014
Smt. Santosh Vs. Smt. Sonpali 32/31
Suit No. 336/13
Smt. Santosh Vs. Smt. Sonpali 33/31