Delhi District Court
D.A.V. Medical Mission vs ) Smt. Tripta Sharma on 18 August, 2011
In the court of Dr Rakesh Kumar: Commercial Civil Judge of
North Delhi District at Tis Hazari Courts, Delhi.
Suit No. 69/02
Unique I.D. No. 02401C0251422002
In the matter of:
D.A.V. Medical Mission
(A registered Charitable Society under
Societies Registration Act)
West Block, Friends Enclave,
Mundka, Delhi110041 through its
Chairperson, Mrs. Usha Saini .........Plaintiff
Versus
1.) Smt. Tripta Sharma
W/o K.C. Sharma
R/o 65, DDA Flats, Jaidev Park,
New Delhi110026
2.) Jai Narain S/o Mange Ram
R/o Village Mundka (PS Nangloi),
Delhi110041 .........Defendants
Date of Institution: 19.03.1999
Date of reserved for judgment: 30.07.2011
Date of pronouncement: 18.08.2011
SUIT FOR SPECIFIC PERFORMANCE, RECOVERY OF
POSSESSION AND FOR MESNE PROFITS
JUDGMENT
1. This is a suit for specific performance of the agreement to sell dated 27.08.1981 entered into between Mission/ the plaintiff and the defendant no.1 in favour of the plaintiff and against the defendant no.1, for possession of the suit property and mesne Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 1/17 profits with interest.
2. Facts are that the plaintiff purchased two plots of land bearing Nos.11 and 12, parts of Khasra No.903, Block D, W.B.F.E. Colony, Near Railway Station Mundka, Delhi (hereinafter referred to as the suit property) in the year 1981 from the defendant No.1 for Rs.4,000/; that an agreement dated 27.09.1981 and some other documents with regard to the purchase of the aforesaid plots were executed by the defendant No.1 in favour of the plaintiff through its Chairman G.L. Satyarathi; that the defendant no.1 also issued two receipts in token of having received the aforesaid sale proceeds - one receipt was dated 10.09.1981 for Rs. 2,500/ and another receipt was for Rs.1,500/ paid in cash; that the defendant no.1 had also handed over the actual physical possession of the aforesaid plots to the plaintiff; that the plaintiff constructed a boundary wall over the aforesaid two plots and started using the same for the purposes of plaintiff; that later on in 198485 the plaintiff constructed two rooms, kitchen, latrine and a bath and a water hand pump and a wooden gate at the entrance and a board on the side of the entrance; that G.L. Satyarathi died on 13.07.1985 and had executed a registered Will on 30.01.1985 whereby he transferred substantially the whole of his property to a trust i.e. "Dr. Gobind Lal Satyarathi Charitable Trust" and appointed himself as the Chief Trustee and Mrs. Usha Saini as Deputy Chief Trustee; that the said Will also stated after the death of G.L. Satyarathi, Mrs. Usha Saini shall be the Chief Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 2/17 Trustee of the trust; that the said trust is being run and managed by Mrs. Usha Saini; that after the death of G.L. Satyarathi, his wife and children raised a dispute against Mrs. Usha Saini regarding the property of Late G.L.Satyarathi in the court of law; that taking an undue advantage of aforesaid legal dispute between Mrs. Usha Saini and the wife and children of G.L. Satyarathi and of the fact that the documents in respect of plot Nos.11 and 12 of Khasra No.903, property in dispute, are now no longer in the possession of the plaintiff, the defendant no.1 along with her son Deepak Sharma in November, 1986 at the instance and illegal instigation of wife of G.L. Satyarathi and in connivance with each other tried to resell the above said premises/plots Nos. 11 and 12 and also tried to harass the plaintiff by stealthily and forcibly taking away the important documents of the plaintiff from the above said premises for which a report was lodged with S.H.O. PS Nangloi on 07.11.1986 by the plaintiff through its Chairman and prior to that a specific report of the theft was lodged with the P.S. on 15.01.1986 regarding the aforesaid theft of documents; that on 09.11.1986, the defendant no.1 and her son Deepak Sharma along with 4 labourers illegally and forcibly demolished one wall of the said premises in question by illegally tress passing into the property and a report to that effect was lodged in P.S. Nangloi on 10.11.1986; that in December, 1986 the defendant No.1, her son Deepak Sharma and her daughter started sitting outside the said premises and also threatened the Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 3/17 Chairperson of the plaintiff with dire consequences; that Mrs. Usha Saini also got published a legal notice on 26.03.1986 in Times of India thereby intimating the public in general that the property of the plaintiff including the suit property are subject matter of legal proceedings which are pending in the court; that in spite of all these facts being within the knowledge of the defendants, the defendant no.1 and her son Deepak Sharma at the instigation of wife of G.L. Satyarathi with a view to cause wrongful loss to the plaintiff, entered into an agreement with the defendant no.2 for the resale of the suit property in favour of the defendant no.2 Jai Narain and in the middle of January, 1987 this fact came to the knowledge of the plaintiff as the defendant no.2 started threatening that he has purchased the suit property i.e. plot Nos.11 and 12 from the defendant no.1; that a notice dated 21.01.1987 was sent to the defendant no.1 requiring him not to resale the property in dispute which he refused to accept; that the defendant no.2 was aware of the earlier sale made by the defendant no.1 in favour of the plaintiff; that after the defendant no.2 started claiming himself to be the owner of the said property and with a view to take illegal possession and to start illegal construction have got unloaded a truck lod of bricks outside the suit property and these bricks were brought by the defendant no. 2 on 03.02.1987 in the morning, however, could not succeed in spite of his aforesaid illegal activities and the actual possession of the suit property on all the relevant times continue to remain Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 4/17 with the plaintiff; that the aforesaid action of the defendant no.2 in collusion and conspiracy with defendant no.1 is wrong, illegal, malafide, uncalled for and unwarranted, gave a cause of action to the plaintiff to institute the present suit.
3. The present suit was contested by the defendants no.1 and 2 by filing separate written statement of their defence wherein took common preliminary objections to the effect that the suit is barred by time; that there is no cause of action for filing the present suit; that the suit is not properly valued for the purposes of court fee and jurisdiction.
4. In reply on merits, it is contented that one Plot No.1 of Khasra No.903 was sold to the Mission by the defendant No.1 for a consideration of Rs.30,000/ and only part payment of Rs. 4,000/ was made in two installments of Rs.1500/ and Rs.2500/ respectively and a sum of Rs.26,000/ is still due on that account towards the plaintiff; that the defendant no.1 has had at no time either entered into an agreement or sold the plots in dispute to the plaintiff; that when at no time the plaintiff Mission was in possession, so, the question of making any construction does not arise at all; that the plaintiff has/had never been in possession of the plots in suit; that no document of any kind was executed by the defendant no.1 in favour of the plaintiff in regard to Plot No. 11 & 12 in dispute; that the plot was sold by the defendant no.1 to the defendant no.2 for the first time; that it is surprising that why the defendant no.1 is going to demolish the wall of her own plot;
Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 5/17that the defendant no.2 is the owner in possession of the suit property since 13.01.1987; that the defendant no.1 had full right and title to sell out the plots in question to the defendant no.2; that the suit property was originally belonged to Meer Singh of Village Mundka who sold the property to the defendant no.1 and the defendant no.1 further sold the suit land to the defendant no. 2 on 13.01.1987 by executing various documents.
5. It is denied that during the life time of G.L. Satyarathi purchased two plots of land bearing Nos.11 and 12, parts of Khasra No.903, Block D, W.B.F.E. Colony, Near Railway Station Mundka, Delhi in the year 1981 from the defendant No.1 for Rs. 4,000/. It is also denied that an agreement dated 27.09.1981 and some other documents with regard to the purchase of the aforesaid plots were executed by the defendant No.1 in favour of the plaintiff through its Chairman G.L. Satyarathi. It is also denied that the defendant no.1 also issued two receipts in token of having received the aforesaid sale proceeds - one receipt was dated 10.09.1981 for Rs.2,500/ and other receipt was for Rs. 1,500/ paid in cash. It is also denied that the defendant no.1 had also handed over the actual physical possession of the aforesaid plots to the plaintiff through its the then Chairman G.L. Satyarathi. It is also denied that on 09.11.1986, the defendant no. 1 and her son Deepak Sharma along with 4 labourers illegally and forcibly demolished one wall of the said premises in question by illegally tress passing into the property. It is also denied that in Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 6/17 December, 1986 the defendant No.1, her son Deepak Sharma and her daughter started sitting outside the said premises and also threatened the Chairperson of the plaintiff with dire consequences. Other allegations of the plaint and denied and disputed and prayed for the dismissal of suit.
6. The plaintiff filed replication wherein it denied the contentions raised by the defendants in their written statements and reiterated the allegations made in the plaint.
7. On the pleadings of the parties, the Learned predecessor of this court framed the following issues on 04.08.2000 for trial, namely:
1. Whether the suit has been filed by a duly competent and authorized person ? OPP
2. Whether the plaintiff entered into an agreement with the defendant no.1 on 27.08.1981 in respect of property No.11 and 12, Khasra No.903, BlockX , W.B.F.E., Colony, Railway Station, Mundka ? OPP
3. Whether the plaintiff was delivered possession of this property and continued in possession as alleged ? OPP
4. Whether the plaintiff made construction over this property within its own funds and later on the property was handed over to the Trust by Mr. G.L. Satyarthi ? OPP
5. Whether it is defendant no.2 who is in possession and real owner of the property in question ? OPD2
6. Whether the suit of the plaintiff is barred by limitation ? OPD Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 7/17
7. Relief.
8. The plaintiff examined ten witnesses. PW1 is Bhim Singh. Another PW1 is Dalel Singh. PW2 is Kishan Gupta. PW3 is Vijay Prakash Kaushik. PW4 is Lal Chand. PW5 is Ranbir Singh. PW6 is Doj Raj Sharma. PW7 is Smt. Usha Saini. PW8 is Bhim Singh. PW9 is Lakhi Ram. PW10 is Om Prakash. During his evidence, the plaintiff produced the documents Ex. PW1/1, Ex. PW1/2, Ex. PW2/1, Ex. P2, Ex. P3, Ex. PW4/1, Ex. PW4/2, Ex. PW4/A, Ex. PW5/1, Ex. PW6/1, Ex. PW7/1 to Ex. PW7/21, Ex. PW8/1, Ex. PW10/1, Ex. PW10/2.
9. The defendants examined three witness. DW1 is Jai Narain. DW2 is Neeraj Gupta. DW3 is Indal Singh. DW4 is Smt. Tripta Sharma. During their evidence, the defendants produced the document Ex. DW1/A to Ex. DW1/E.
10. I have heard counsel for the parties and perused the material available on record carefully. I have also gone through the written submissions tendered on behalf of the defendants and my findings are as follows:
11. My issue wise findings are as follows: Issues No. 1, 2,3, 4 & 6 Whether the suit has been filed by a duly competent and authorized person ?
Whether the plaintiff entered into an agreement with the defendant no.1 on 27.08.1981 in respect of property No.11 and 12, Khasra No.903, BlockX, W.B.F.E., Colony, Railway Station, Mundka ?
Whether the plaintiff was delivered possession of this property and continued in possession as alleged ?
Whether the plaintiff made construction over this property within its own Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 8/17 funds and later on the property was handed over to the Trust by Mr. G.L. Satyarthi ?
Whether the suit of the plaintiff is barred by limitation ?
12. Onus qua issues no.1 to 4 was placed on the plaintiff and onus qua issue no.6 was placed on the defendant. These issues are taken together being inter connected.
13. To prove these issues, it is stated by PW7 Smt. Usha Saini in her affidavit that Smt. Tripta Sharma, defendant no.1 who was the owner of Plot No.11 & 12, measuring 300 sq. yds part of Khasra No.903 situated in Village Mundka, Delhi, and colony known as West Block, Friend Enclave Near Railway Station, Mundka, Delhi. It is further stated that the defendant no.1 on 27.08.1981 has agreed to sale her above plots to plaintiff society through Dr. G.L. Satyarathi, Chairman of the society, for a sum of Rs.4,000/. It is further stated that she has received a sum of Rs.1,500/ from the plaintiff society as part sale consideration of the plots and executed a receipt of the above amount, in favour of the plaintiff society. It is further stated that the balance consideration of the sale Rs.2,500/ of the above plots was also received by the defendant no.1, from the plaintiff society, vide receipt dated 10.09.1981, which was duly registered in the office of sub Registrar, Delhi. It is further stated that the defendant no.1 also handed over the physical possession of the above plots to the plaintiff society. It is further stated that after purchasing the above plots, the plaintiff society boundary walled the said plots Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 9/17 and started using the same for the society use and in the year 198485 the plaintiff society constructed two rooms, kitchen, latrine and bathroom, a hand pump was also bored therein. It is further stated that Dr. G.L. Satyarthi during his lifetime on 30.01.1985, executed a registered Will thereby, he has divided/ bequeathed his property among his Lrs and on part of the property he created a trust and appointed Dr. Usha Saini as its Chief Trustee. It is further stated that because of the dispute over the personal property of Dr. G.L. Satyarthi and over the property upon which he created a trust, on 12.01.1986, the wife of Dr. G.L. Satyarathi and his son, committed a criminal tress pass and entered into the official residence of Dr. Usha Saini in Mundka and also entered in the property/hospital of the trust and forcefully got the locks opened. It is further stated that on the night of 05.07.1986, a theft was also committed in the office of the plaintiff and in the Satyarathi Parmarath Hospital. It is further stated that on 13.07.1986 once again, the wife and children of G.L. Satyarathi committed a criminal trespass and unlawfully entered into the premises of the plaintiff and put their own locks. It is further stated that taking an undue advantage of aforesaid legal dispute between Mrs. Usha Saini and the wife and children of G.L. Satyarathi, the defendant no.1 along with her son Deepak Sharma in November, 1986 at the instance and illegal instigation of wife of G.L. Satyarathi and in connivance with each other tried to resell the above said premises/plots Nos.11 and 12 and also Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 10/17 tried to harass the plaintiff by stealthily and forcibly taking away the important documents of the plaintiff from the above said premises for which a report was lodged with S.H.O. PS Nangloi on 07.11.1986 by the plaintiff through its Chairman and prior to that a specific report of the theft was lodged with the P.S. on 15.01.1986 regarding the aforesaid theft of documents. It is further stated that on 09.11.1986, the defendant no.1 and her son Deepak Sharma along with 4 labourers illegally and forcibly demolished one wall of the said premises in question by illegally tress passing into the property and a report to that effect was lodged in P.S. Nangloi on 10.11.1986. It is further stated that in December, 1986 the defendant No.1, her son Deepak Sharma and her daughter started sitting outside the said premises and also threatened the Chairperson of the plaintiff with dire consequences. It is further stated that the deponent being the Chairperson of the plaintiff mission, on 26.03.1986 got published a legal/public notice in The Times of India informing the public refraining them not to indulge to transact of mission property as there is dispute pending in the court of law. It is further stated that in spite of all these facts being within the knowledge of the defendants, the defendant no.1 and her son Deepak Sharma at the instigation of wife of G.L. Satyarathi with a view to cause wrongful loss to the plaintiff, entered into an agreement with the defendant no.2 for the resale of the suit property in favour of the defendant no.2 Jai Narain and in the middle of January, 1987 this Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 11/17 fact came to the knowledge of the plaintiff as the defendant no.2 started threatening that he has purchased the suit property i.e. plot Nos.11 and 12 from the defendant no.1. It is further stated that a notice dated 21.01.1987 was sent to the defendant no.1 requiring him not to resale the property in dispute which he refused to accept. It is further stated that the defendant no.2 was aware of the earlier sale made by the defendant no.1 in favour of the plaintiff.
14. To disprove these issues, it is stated by DW4 Smt. Tripta Sharma in her affidavit that she had sold the suit property to Jai Narain, the defendant no.2 on 13.01.1987 and handed over vacant and exclusive possession to him. It is further stated that the suit property was never in possession of the plaintiff mission or Dr. G.L. Satyarathi or Mrs. Usha Saini. It is further stated that she had never sold the property to the plaintiff mission or Dr. G.L. Satyarathi or Mrs. Usha Saini and the plaintiff mission or Dr. G.L. Satyarathi or Mrs. Usha Saini have no legitimate right, title or interest in the aforesaid property. It is further stated that she had agreed to sell another plot of land i.e. Plot no.1 out of Khasra No. 903, situated in the Revenue Estate of Village Mundka, Delhi to the plaintiff mission for a total sale consideration of Rs.30,000/, out of which a part payment of Rs.4,000/ was made by the plaintiff mission in two installments of Rs.1,500/ and Rs.2,500/ respectively and a sum of Rs.26,000/ is still due and outstanding on the plaintiff mission on that account. It is further stated that Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 12/17 she has never entered into any sort of agreement either with the plaintiff mission or Dr. G.L. Satyarathi or Mrs. Usha Saini in respect of plot no.11 and 12, Khasra No.903, Colony known as Friends Enclave situated in the Revenue Estate of Village Mundka, New Delhi110041 nor has she received any consideration from the plaintiff mission or Shri G.L. Satyarathi or Mrs. Usha Saini in respect of the aforesaid plot no.11 and 12. It is further stated that the alleged documents in this respect, if any, are false, forged and fabricated.
15. In the light of evidence produced on behalf of the plaintiff, at the outset, I hold that the case set up by the plaintiff is vague. In the plaint, on the one hand, the plaintiff has claimed to have purchased the suit property from the defendant no.1 on 27.08.1981 and on the other hand in the relief clause, the plaintiff is seeking specific performance of the agreement to sell dated 27.08.1981. If the plaintiff had already purchased the suit property on 27.08.1981, I have failed to understand why he is seeking specific performance of agreement to sell the suit property.
16. The Hon'ble High Court of Delhi has in G. Ram v. Delhi Development Authority AIR 2003 Delhi 120 held that an immovable property can be transferred only by executing a registered document as provided for under section 54 of the Transfer of Property Act read with section 17 of the Indian Registration Act. But, the plaintiff has placed on record no sale Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 13/17 deed to prove that the suit property has been purchased by the plaintiff.
17. The plaintiff has also failed to prove agreement for sale executed by the defendant no.1 in his favour. There is no material on record to prove that the defendant no.1 has ever agreed to sell the suit property to the plaintiff.
18. Even if, it is considered that an agreement for sale was executed by the plaintiff in favour of defendant no.1 qua the suit property, no right, title or interest qua the same was transferred in favour of the plaintiff. It has been held by he Hon'ble Supreme Court in Satyabrata Ghose v. Mugneeram Bangur and Co., AIR 1954 SC 44 that according to the Indian law, which is embodied in S. 54 of the Transfer of Property Act, a contract for sale of land does not of itself create any interest in the property which is the subject matter of the contract. The Hon'ble Supreme Court took a similar view in Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others, AIR 1960 SC 1368 and held that under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee. In the light of law declared by Hon'ble Delhi High Court and Hon'ble Supreme Court, a contract of sale creates no interest in the property. A contract for sale is, therefore, merely a Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 14/17 document creating a right to obtain another document i.e. of sale. Although the plaintiff has failed to prove any sale deed in his favour or agreement for sale qua the suit property executed by the defendant no.1 in his favour, even if it is assumed that the plaintiff had agreed to purchase the suit property on 27.08.1981. It is not clearly stated by the plaintiff up to what period the contract for sale of the suit property was subsisting. In the entire plaint, it is nowhere pleaded nor proved on behalf of the plaintiff that the plaintiff was always ready and willing to perform his part of essential terms of the contract. There is no material on record to prove that the plaintiff ever tried to get the sale deed executed in his favour from the defendant no.1.
19. The plaintiff has placed on record photocopy of Will (Ex. PW10/2) dated 09.10.1978 allegedly executed by husband of the defendant no.1 in favour of the plaintiff. Original Will was never produced in the court. The said Will was also not proved on behalf of the plaintiff as per law. The plaintiff has also failed to prove due execution and valid attestation of the said Will as per the law. So, this Will (Ex. PW10/2) remained unproved and is of no consequences.
20. In the plaint, it is stated by the plaintiff that an agreement dated 27.08.1981 was executed with regard to the purchase of the suit property with the defendant no.1. In paragraph no.13 of the plaint, it is stated by the plaintiff that the defendant no.1 and her son Deepak Sharma at the instigation of wife of Sh. G.L. Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 15/17 Satyarathi, with a view to cause wrongful loss to the mission plaintiff, entered into an agreement with the defendant no.2 for resale of the suit property in the middle of January, 1987. From these allegations made by the plaintiff in the plaint, it can be reasonably presumed that cause of action for specific performance of the contract in favour of the plaintiff had arisen in the month of January, 1987. As per Article 54 of the Limitation Act, 1963, period of limitation for filing a suit for specific performance of a contract is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused. In the light of evidence of the plaintiff, as I have already observed, the plaintiff has never been ready and willing to perform his part of essential terms of the contract and to get the sale deed executed in his favour from the defendant no.1. The present suit was instituted on 19.03.1999 which is clearly after expiry of the period of limitation.
21. For the aforestated reasons these issues are decided in favour of the defendants and against the plaintiff. Issue No.5 Whether it is defendant no.2 who is in possession and real owner of the property in question ?
22. Onus qua this issue was placed on the defendant no.2.
23. Admittedly, the plaintiff is not in possession of the suit property. Vide my findings on issues No.1 to 4 and 6, it has already been held that the plaintiff has failed to prove his case.
Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 16/17The case of the plaintiff is to be seen from the premises of the plaintiff. Once the plaintiff has failed to prove his case, I refrain from giving any findings on this issue.
Relief.
24. In view of my findings on issues no. 1 to 4, the plaintiff has failed to prove his case against the defendants. In view of my findings on issue no.6, it has already been held that the suit of the plaintiff is barred by limitation. In view of the above, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly.
Announced in the Open Court (Dr. Rakesh Kumar)
On 18.08.2011 Commercial Civil Judge
North Delhi District
Tis Hazari Courts: Delhi.
Suit No: 69/02 DAV v. Smt. Tripta Sharma Page 17/17