Delhi District Court
Amarjeet Singh vs Naveen Sethi on 28 January, 2025
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IN THE COURT OF SH. MANOJ KUMAR SHARMA,
DISTRICT JUDGE - 07, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO. :- 584/2017
CNR NO. DLWT010045272017
IN THE MATTER OF :-
SH. AMARJEET SINGH
S/o Sh. Joginder Singh,
R/o G-43, Lajpat Nagar-II,
New Delhi-110024. ....Plaintiff
VERSUS
SH. NAVEEN SETHI
S/o Sh. Brij Bihari Sethi,
R/o F-1, Mansarovar Garden,
New Delhi. ....Defendant
SUIT FOR SPECIFIC PERFORMANCE, POSSESSION AND
MESNE PROFITS ALONGWITH INTEREST.
Date of institution of the Suit : 18.05.2017
Date of Judgment was reserved : 18.11.2024
Date of Judgment : 28.01.2025
Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 1 of 24
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::- J U D G M E N T -::
1.The present suit has been filed by plaintiff against the defendant seeking decree of specific performance of agreement to sell dated 23.05.2014 and recovery of possession of the suit property i.e. entire Ground Floor without roof / terrace rights of property bearing no.F-757 built up on land admeasuring 25 sq. yds. situated in the abadi of Raghubir Nagar, New Delhi alongwith mesne profits / damages.
2. CASE OF THE PLAINTIFF AS PER PLAINT The necessary facts for the adjudication of the present suit, as stated in the plaint, are as under :
2.1. That defendant approached the plaintiff with an offer to sell his property i.e. entire Ground Floor without roof / terrace rights of property bearing no.F-757 built up on land admeasuring 25 sq. yds. situated in the abadi of Raghubir Nagar, New Delhi and represented himself to be the owner having been purchased the same from Sh. Raju on 08.11.2013 vide General Power of Attorney, Agreement to Sell, receipt, affidavit, possession letter, registered Relinquishment Deed, Electricity bill, House Tax Receipt and WILL.
2.2. On 23.05.2014, the plaintiff relying upon the representation of the defendant entered into an agreement to sell and purchase in respect of the suit property with him Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 2 of 24 3 and paid a sum of Rs.5,00,000/- as sale consideration, the amount which was received and duly acknowledged by the defendant vide a separate receipt of the even date.
2.3. Thereafter, the plaintiff regularly requested the defendant to execute the sale deed of the suit property, but the defendant remained reluctant and delayed the same on one pretext or the other despite the fact that the validity of agreement to sell was scheduled to expire on 20.05.2017.
3. Summons for settlement of issues were issued for the service of defendant and he put his appearance on 21.08.2017 and written statement was filed on his behalf on 03.11.2017.
4. CASE OF THE DEFENDANT.
4.1. The present suit is not maintainable and liable to be dismissed as the plaintiff has not approached the Hon'ble Court with clean hands and has suppressed the true and material facts and most importantly, there is no privity of contract between the plaintiff and defendant.
4.2. The plaintiff is totally unknown to him and he has neither entered into an agreement to sell dated 23.05.2014 with the defendant nor has ever executed any document in his favour. The plaintiff has misused the blank signed papers for the creation of agreement to sell and receipt in Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 3 of 24 4 question, which were in the possession of Sh. Dinesh Chand Mahajan, who is a close relative of plaintiff.
4.3. The defendant is in the business of construction and used to occasionally take financial help from Sh. Dinesh Chand Mahajan, who used to take property papers and blank signed papers from him as security of that financial help and after clearing the dues, the defendant used to take back his original title documents from Sh. Dinesh Chand Mahajan, however, this time Sh. Dinesh Chand Mahajan represented that the blank signed papers have been misplaced and even otherwise are of no use as the defendant has already repaid his dues and whenever the said documents would be traced, the same would be returned back to him.
4.4. However, the intention of Sh. Dinesh Chand Mahajan turned dishonest and with an intent to grab the suit property of defendant, he fabricated and misused the blank signed papers in collusion and connivance with the plaintiff, who has filed two suits against the defendant including the present suit.
4.5. The defendant made complaints to the police authorities against Sh. Dinesh Chand Mahajan and plaintiff for their illegal acts and deeds of cheating and defrauding by manipulating his blank signed documents and have also filed a complaint case under Section 200 of Cr.P.C. which Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 4 of 24 5 is pending adjudication before the Court of Ld. Metropolitan Magistrate.
4.6. The contents of the suit are false and frivolous and the suit filed by the plaintiff has not been properly valued for the purpose of jurisdiction and requisite court fee has not been affixed on the plaint.
5. No replication has been filed on behalf of the plaintiff to the written statement of the defendant.
6. Thereafter, on the basis of pleadings, the following issues were framed on 13.08.2018:-
(1) Whether the plaintiff is entitled for a decree of specific performance of Agreement to Sell dated 23.05.2014? OPP.
(2) Whether the plaintiff is entitled for a decree of possession of suit property as prayed for? OPP. (3) Whether the plaintiff is entitled for mesne profits, if yes, at what rate and for what period? OPP. (4) Whether the plaintiff is entitled for any interest if yes, at what rate and for what period and on what amount? OPP.
(5) Whether the suit filed by plaintiff is barred under Order 2 Rule 2 CPC? OPD.
(6) Relief.
Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 5 of 24 67. PLAINTIFF EVIDENCE AND DOCUMENTS RELIED UPON.
7.1. In support of his case, the plaintiff has examined himself as PW-1 and tendered his evidence affidavit Ex.PW-1/1 in his examination-in-chief.
7.2. In his evidence, the plaintiff / PW-1 has relied upon the following documents:
A. GPA, Agreement to Sell, Receipt, Affidavit, Possession Slip, Deed of WILL executed by Sh. Raju in favour of defendant Sh. Naveen Sethi (all dated 08.11.2013) and Electricity Bill dated 24.02.2013 all are Ex.PW-1/A (Colly)(13 pages);
B. Relinquishment Deed dated 21.10.2013 as Mark A; C. Agreement to Sell dated 23.05.2014 executed between plaintiff and defendant as Ex.PW-1/B; and D. Original Receipt dated 23.05.2014 executed by the defendant as Ex.PW-1/C.
8. Thereafter, no other witness was examined by the plaintiff, hence, plaintiff evidence was closed.
9. DEFENDANT EVIDENCE AND DOCUMENTS RELIED UPON.
9.1. The defendant has himself stepped into the witness box as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/A in his examination-in-chief.
Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 6 of 24 79.2. In his evidence, the defendant / DW-1 has relied upon the following documents:
A. Certified copies of the police complaints dated 18.02.2017 and 11.05.2017 as Ex.DW-1/1 (colly) and Ex.DW-1/2 (colly) respectively;
B. CD alongwith its transcript dated 18.02.2017 and 11.05.2017 as Ex.DW-1/3 and Ex.DW-1/4 (colly); and C. Certificate under Section 65-B of Indian Evidence Act for the aforesaid CD and transcript as Ex.DW- 1/5.
10. Defendant did not examine any other witness and therefore, DE was closed and final arguments were heard.
11. I have heard Ld. counsel for both the parties. I have also gone through the material on record.
12. ISSUEWISE FINDINGS AND THE CONCLUSION OF THE CASE.
13. ISSUE No.1:-
Whether the plaintiff is entitled for a decree of specific performance of Agreement to Sell dated 23.05.2014? OPP. And ISSUE NO.2:-
Whether the plaintiff is entitled for a decree of possession of suit property as prayed for? OPP.Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 7 of 24 8
13.1. As both the aforesaid issues are interlinked so they are taken up together for adjudication. The onus to prove both the issues is upon the plaintiff. The plaintiff himself stepped into the witness box as PW-1 and deposed that he was approached by the defendant for selling the suit property i.e. entire ground floor, without roof / terrace rights, property bearing no.F-757, land admeasuring 25 sq.yds., Raghubir Nagar, New Delhi, who represented that he had purchased the same from one Sh. Raju vide General Power of Attorney, agreement to sell, receipt, affidavit, WILL and possession letter, all dated 08.11.2013 and relying upon the representation made by the defendant, he entered into an agreement to sell dated 23.05.2014 Ex.PW-1/B for the purchase of the property at the total sale consideration of Rs.5,00,000/- which was paid to the defendant on the same day and the receipt Ex.PW-1/C was executed to the said effect. PW-1 has further deposed that after the execution of the aforesaid documents, he time and again requested the defendant to execute the sale deed of the suit property in his favour but the defendant remained reluctant and neither executed the sale deed within the stipulated period provided under the agreement to sell nor extended the time period for the same.
13.2. In rebuttal, the defendant stepped into the witness box as DW-1 and deposed that the plaintiff, Sh. Amarjeet Singh is not his acquaintance and he never entered into any agreement to sell with him regarding the suit property and Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 8 of 24 9 he met him for the first time outside the courtroom where he was introduced to him by Sh. Dinesh Chand Mahajan, who is the brother-in-law of plaintiff, Sh. Amarjeet Singh.
DW-1 has further deposed that he is engaged in the business of construction and took financial help from Sh. Dinesh Mahajan on several occasions and as a security, Sh. Dinesh Mahajan used to take the documents of his property and obtained his signatures on blank papers and after the repayment of the borrowed money, he used to return the title documents and blank signed papers to the defendant, however, on one occasion, he represented to him that the blank signed papers have been misplaced and the same blank signed documents have been misappropriated by the plaintiff in connivance with Sh. Dinesh Chand Mahajan to manufacture documents on the basis of which the present suit for specific performance has been filed. DW-1 has further deposed that he has not received any money from the plaintiff nor has executed the agreement to sell Ex.PW-1/B and the receipt Ex.PW-1/C and the same have been prepared / forged by the plaintiff by misusing the documents which were handed over by him to Sh. Dinesh Chand Mahajan.
13.3. In a nutshell, the case of the plaintiff is that he entered into an agreement to sell dated 23.05.2014 Ex.PW-1/B regarding the suit property at the total sale consideration of Rs.5,00,000/-, which was paid on the same day to the defendant vide the receipt Ex.PW-1/C and Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 9 of 24 10 in rebuttal, the defendant has taken the plea that the agreement to sell and receipt Ex.PW-1/B and Ex.PW-1/C have not been executed by him as he never entered into any such transaction with the plaintiff regarding the suit property and these documents have been forged / prepared by the plaintiff in connivance with Sh. Dinesh Chand Mahajan to whom he had handed over blank signed documents at the time of availing some financial help.
13.4. It is a well settled position of law that while adjudicating a claim seeking specific performance of an agreement to sell, the Court is required to consider mainly two things i.e. validity of the agreement to sell and the issue of readiness and willingness on the part of the plaintiff to comply with the essential terms and conditions of the subject matter agreement to sell.
13.5. In the present case, so far as the issue of readiness and willingness is concerned, the same does not need much deliberation as the case of the plaintiff is that he has already paid the entire sale consideration for the suit property at the time of execution of the agreement to sell Ex.PW-1/B itself and the same is reflected by the receipt Ex.PW-1/C while the defendant has also not taken the plea that the plaintiff is lacking readiness and willingness on his part to perform the terms and conditions of the agreement to sell Ex.PW-1/B rather he has taken the plea that both Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 10 of 24 11 these documents are false and fabricated and were never executed by him.
13.6. So, this Court will straightaway get into the issue of genuineness of the agreement to sell Ex.PW-1/B and receipt Ex.PW-1/C, both dated 23.05.2014.
13.7. Firstly, it be noted that the defendant has not disputed his signatures over the agreement to sell Ex.PW-1/B and the receipt Ex.PW-1/C and the only defence taken by him is to the effect that the plaintiff in connivance with one Sh. Dinesh Chand Mahajan has misappropriated the blank documents bearing his signatures.
13.8. For understanding and analysing the aforesaid plea taken by the defendant, the backstory pleaded by him needs to be analysed minutely.
13.9. The defendant deposed as DW-1 that he is in the business of construction and time to time used to take financial help from Sh. Dinesh Chand Mahajan and at that time, he used to give blank signed papers to him as security and the same used to be returned back to him after the repayment of the loan amount. DW-1 has further deposed that the documents i.e. the agreement to sell Ex.PW-1/B and receipt Ex.PW-1/C are prepared on the aforesaid blank papers which were handed over by him to Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 11 of 24 12 Sh. Dinesh Chand Mahajan, but not returned back to him despite the re-payment of the loan amount in pursuance of which the blank documents were handed over and the plaintiff in connivance with Sh. Dinesh Chand Mahajan has misused those blank signed documents and filed the present suit by manufacturing documents Ex.PW-1/B and Ex.PW-1/C. 13.10. Briefly stating, the defence of the defendant is premised upon the plea that the documents Ex.PW-1/B and Ex.PW-1/C were not executed by him though he admits his signatures thereon and has taken the plea that the same were blank papers handed over by him to Sh. Dinesh Chand Mahajan and in connivance with him, the plaintiff has filed the present suit by misusing those signed blank papers.
13.11. Firstly, this Court is of the opinion that the moment the defendant admits his signatures on the agreement to sell and receipt Ex.PW-1/B and Ex.PW-1/C and takes the plea that his signatures were taken on blank papers and same have been misused for preparing the aforesaid documents, the onus shifts upon him to establish the said misappropriation of documents by proving the sequence of events as alleged by him.
13.12. Secondly, it is a matter of common sense that if a person denies the execution of a document, which contains Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 12 of 24 13 his signatures, he must first explain as to how the signatures happen to be there on the said document without its actual execution at the instance of the said person and that could be possible only by either establishing that his signatures were obtained on a blank paper and thereafter the document in question was prepared or any other circumstance which could indicate that there was no conscious or voluntary execution as ordinarily, people do not affix their signatures on a document without intending to execute it.
13.13. Now, coming to the evidence brought on record on behalf of the defendant for establishing his aforesaid assertion. The perusal of the evidence led by the defendant as DW-1 reveals that he has not laid the foundation of his defence by furnishing the details of the monetary transaction including the date, time, place, the quantum of loan, the execution of receipt, the date of re-payment etc. in pursuance of which the blank signed papers in question were handed over by him to Sh. Dinesh Chand Mahajan, by misappropriating which the documents Ex.PW-1/B and Ex.PW-1/C have been prepared.
13.14. The defendant has also not given any explanation as to why despite the alleged repayment of the loan to Sh. Dinesh Chand Mahajan in pursuance of which the blank signed papers were handed over to him, the documents were not reclaimed by him.
Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 13 of 24 1413.15. So, succinctly stating, the defendant has neither pleaded nor brought on record any material which could corroborate his story of misuse of blank signed papers by the plaintiff, which were handed over by him to Sh. Dinesh Chand Mahajan.
13.16. An another fact which is relevant for assessing the genuineness of the claim of the defendant is that he has not taken the plea that he is a poorly educated person or a simpleton rather he has himself deposed that he is in construction business. So, it is hard to believe his version that despite being an experienced businessman, he signed unaccountable blank papers and handed them over to Sh. Dinesh Chand Mahajan, who in turn handed over the same to the plaintiff for filing the present suit.
13.17. Now, this Court will analyse the agreement to sell and the receipt Ex.PW-1/B and Ex.PW-1/C, which are the core of the present case.
13.18. The perusal of the agreement to sell Ex.PW-1/B reveals that it is prepared on a Rs.50/- e-stamp paper and bears signatures of the defendant at the bottom of all the three pages, more specifically at the designated points for vendor which are earmarked for its signatures as first party. The important aspect of the document Ex.PW-1/B which needs to be highlighted is that its first page is an e-stamp paper which not only contains the name of plaintiff as well Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 14 of 24 15 as defendant as first and second party respectively but also specifically provides that the stamp paper is purchased for the execution of a sale agreement. This Court has particularly highlighted the aforesaid point as the entire case of the defendant is assembled around the plea that he signed some blank papers and the same has been misused but there can be no dispute or controversy to the fact that the aforesaid e-stamp which is part of Ex.PW-1/B can never be a blank document as it is a matter of common knowledge that an e-stamp paper is generated only after inputting of all the necessary details mentioned thereon by the applicant. So, this Court is not inclined to accept the argument of the defendant that the first page of Ex.PW-1/B which admittedly bears his signatures was blank at the time, he affixed his signatures thereon.
13.19. Now, coming to the receipt Ex.PW-1/C, the perusal of the same reveals that it bears the admitted signatures of the defendant on a revenue stamp of 100 paisa, which indicates that it was executed against payment of some amount. So, prima facie it supports the case of the plaintiff that it was executed after the receipt of the sale consideration in question.
13.20. Besides, the aforesaid discussion, this Court is of the opinion that the positioning of the signatures on a document is very important as when a person's signature appears on a document at the place / point where an Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 15 of 24 16 executant normally / generally affix his signatures, it indicates that the signatures were affixed for the execution of the said document.
13.21. In the present case, the perusal of the agreement to sell Ex.PW-1/B and the receipt Ex.PW-1/C which consists of four pages reveals that the admitted signatures of the defendant, Sh. Naveen Sethi are not at the same spot / identical part of the pages having a particular pattern rather they are exactly at those places where an executant of an agreement to sell and receipt generally affix his signatures. So, it can be inferred that the defendant affixed his signatures on the aforesaid documents with an intention of execution.
13.22. It be also noted that during his examination-in- chief, the defendant deposed that his signatures were obtained by Sh. Dinesh Chand Mahajan on blank papers while in his cross examination, he admitted that the agreement to sell Ex.PW-1/B was bearing the details of the parties at the time when he affixed his signatures thereon. The reply given by defendant as DW-1 during his cross examination is reproduced herein for better appreciation :
"It is correct Ex.PW-1/B was pre-printed with details of the parties before I signed the same. (Vol. The other side of the document was blank and Dinesh Mahajan assured me that he will get the sign of the other party later on) ." The aforesaid reply of the defendant manifest that the Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 16 of 24 17 agreement to sell Ex.PW-1/B was not a blank paper when it was signed by him, which is contradictory to the stand taken by him in his examination-in-chief.
13.23. Precisely speaking, the aforesaid reply given by the defendant practically demolishes his entire defence which is premised upon the fact that Sh. Dinesh Chand Mahajan obtained his signatures on the blank papers and later on the same has been misused by the plaintiff as through the aforesaid reply given by him in his cross examination, the defendant admitted that in the first place, the documents were not blank and secondly, the same were executed in pursuance of an another transaction having no connection with the advancement of loan by Sh. Dinesh Chand Mahajan.
13.24. In view of the aforesaid discussion, this Court is of the opinion that the contention of the defendant that his signatures were obtained on the blank papers prima facie appears to be hollow and frivolous.
13.25. Now, coming to an another important facet of the present case, it is a matter of record that the documents Ex.PW-1/A (Colly) vide which the defendant admittedly acquired rights in the suit property has been produced by the plaintiff and no plausible explanation has been offered by the defendant as to how these documents came into his possession. So, the custody of original documents Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 17 of 24 18 Ex.PW-1/A with the plaintiff prima facie corroborates his version of execution of agreement to sell by the defendant with him after the receipt of the entire sale consideration as otherwise, there is no probable explanation of plaintiff having control of the original GPA set of documents through which the defendant purchased the suit property.
13.26. Moreover, at the initial stage of his cross examination, the defendant deposed that he did not have the originals of Ex.PW-1/A (Colly) as he had given the same to the subsequent purchaser namely, Smt. Mamta but when he was confronted with the copy of an agreement to sell dated 23.12.2014 Ex.DW-1/P1 executed between one Sh. Raju and Smt. Mamta with respect to the suit property, he changed his earlier stand and stated that this agreement to sell was executed by Sh. Raju with Ms. Mamta at his instructions and made a somersault by stating that he did not handover the original chain of documents to Ms. Mamta and when during the later stage of cross examination, Ld. counsel for the plaintiff shown him the documents Ex.PW-1/A (Colly), he admitted the fact that he is claiming ownership of the property in question on the strength of these documents and no other document was executed between him and his predecessor in interest, Sh. Raju at the time of purchase of the suit property.
13.27. The aforesaid analysis of cross examination of defendant makes it plain that his testimony is full of Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 18 of 24 19 inconsistencies and he is changing his version as per his convenience, so this Court is of the opinion that defendant has been untruthful in his deposition and lacks consistency and consequently his testimony is uncredible.
13.28. So briefly stating, the defendant has failed to brought on record any material or evidence which could probablize the case set up by him regarding fabrication of the agreement to sell Ex.PW-1/B and receipt Ex.PW-1/C by using the blank signed document which were handed over by him to Sh. Dinesh Chand Mahajan.
13.29. However, before concluding the discussion, two important parts of the present case needs to be discussed. Firstly, there is no doubt that there is some incoherence in the replies given by the plaintiff during his cross examination especially with respect to the schedule of the payment of the sale consideration to the defendant but at the same time it should also be taken into consideration that he voluntarily stated on several occasions during his cross examination that he did not remember many things as he suffered a brain stroke but the aforesaid plea of the plaintiff was not challenged by the defendant either by asking him to produce relevant medical documents or by giving suggestion thereby negating the aforesaid plea.
13.30. Secondly, in his evidence, the defendant has relied upon a CD Ex.DW-1/3 and its transcript Ex.DW-1/4 for Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 19 of 24 20 establishing the fact that he was not known to the plaintiff and never entered into an agreement to sell with him regarding the suit property. However, this Court is not inclined to give any weightage to the aforesaid electronic evidence as the same is not supported with a certificate complying with the mandate of Section 65B The Indian Evidence Act. The certificate Ex.PW-1/5 filed by the defendant as the certificate under Section 65B The Indian Evidence Act does not satisfy the requisites provided under Section 65B and owing to the same, the same deserves rejection. Moreover, neither the identity of the voices of plaintiff, defendant and Sh. Dinesh Chand Mahajan have been established, which allegedly participated in the conversation which is recorded in the CD Ex.DW-1/3 nor the same reflects the date and time when the conversation took place. So, it is clear that the electronic evidence brought on record on behalf of the defendant as Ex.DW-1/3 and Ex.DW-1/4 is of no use and more particularly, inadmissible in law.
13.31. At this stage, it is relevant to highlight the well settled position of law that in a civil case, the preponderance of probability is the standard of proof and the said rule should be kept in mind while deciding the scale of sufficiency of evidence for proving a fact. Reference can be made to the judgment passed by Hon'ble Apex Court in Government of Goa through its Chief Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 20 of 24 21 Secretary Vs. Maria Julieta D'souza (Dead) and Others, Civil Appeal no.722 of 2016.
13.32. In view of the foregoing discussion, this Court is of the opinion that the material available on record suggests that the agreement to sell dated 23.05.2014 Ex.PW-1/B was duly executed between the plaintiff and defendant and the entire sale consideration was paid to the defendant at the instance of plaintiff vide receipt Ex.PW-1/C. 13.33. Accordingly, both the issues are decided in favour of the plaintiff and against the defendant.
14. ISSUE No.3:-
Whether the plaintiff is entitled for mesne profits, if yes, at what rate and for what period? OPP.
And ISSUE No.4:-
Whether the plaintiff is entitled for any interest if yes, at what rate and for what period and on what amount? OPP.
14.1. As both the aforesaid issues are interlinked so they are taken up together for adjudication. The onus to prove both the issues is upon the plaintiff. The testimonies of witnesses are not reproduced herein for the sake of brevity.
14.2. Section 2(12) CPC provides that mesne profits of property means those profits which the person in wrongful possession of such property actually received or might Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 21 of 24 22 with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to the improvements made by the person in wrongful possession.
14.3. It is clear from the aforesaid statutory definition that for claiming mesne profits, the defendant should be in unlawful possession of the suit property. However, in the present case, it is a matter of record that till today the sale deed of the suit property has not been executed in favour of the plaintiff and it is a well settled position of law that the title of a property gets transferred only upon registration of the transfer document. Moreover, it is also equally well settled position of law that an agreement to sell does not create any right in the subject matter property.
14.4. So, it is clear that the defendant is not in unlawful occupation of the suit property. Accordingly, the plaintiff is not entitled to recover any mesne profits from him for the occupation of the suit property.
14.5. In view of the aforesaid discussion, both the issues are decided in favour of the defendant and against the plaintiff.
15. ISSUE No.5:-
Whether the suit filed by plaintiff is barred under Order 2 Rule 2 CPC? OPD.Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 22 of 24 23
15.1. The onus to prove this issue is upon the defendant.
15.2. Order 2 Rule 2 CPC basically provides two principles of law :
(i) Firstly, when the plaintiff omits to sue in respect of any part of his claim, he cannot thereafter sue in respect of the portion omitted or relinquished by him at the time of filing of the first claim; and
(ii) Secondly, if a person omits to sue for all the reliefs in respect of a cause of action, except with the leave of the Court, he is not allowed to sue afterwards for any of the reliefs so omitted.
15.3. The perusal of the evidence affidavit of defendant Sh. Naveen Sethi reveals that he has not pleaded anything about the applicability of the principles of Order 2 Rule 2 CPC in the present case. Moreover, the defendant has also not brought on record the pleadings of the previous suit with respect to which the applicability of the provision of Order 2 Rule 2 CPC has been pleaded.
15.4. So, this Court is of the opinion that there is no material on record for establishing that the present suit of the plaintiff is barred by principles of Order 2 Rule 2 CPC.
15.5. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 23 of 24 2416.RELIEF 16.1. Accordingly, in view of the aforesaid discussion and findings on the issues, following reliefs are granted in favour of the plaintiff :
(i) The defendant is directed to execute a registered sale deed with respect to the suit property i.e. entire Ground Floor without roof / terrace rights of property bearing no.F-757 built up on land admeasuring 25 sq. yds. situated in the abadi of Raghubir Nagar, New Delhi;
(ii) The plaintiff is entitled to recover possession of the aforesaid suit property from the defendant after the execution of the registered sale deed.
Hence, the suit of the plaintiff is partly decreed.
17. Decree sheet be prepared accordingly.
18. File be consigned to record room.
Digitally signed by MANOJ MANOJ KUMAR
KUMAR SHARMA
Date: 2025.01.28
Announced in the Open Court SHARMA 16:35:08 +0530
on 28th January, 2025. (MANOJ KUMAR SHARMA) DJ-07 (West) Tis Hazari Courts, Delhi Sh Amarjeet Singh Vs. Sh. Naveen Sethi Page 24 of 24