Delhi District Court
Shashi Kumar And Ans vs Mrs. K. Nirmala And Ans on 28 February, 2024
IN THE COURT OF SH. SUNIL BENIWAL, ADDITIONAL
DISTRICT JUDGE06, SOUTH, SAKET COURTS,
NEW DELHI
CNR No.DLST010031142018
CS DJ No.455/2018
1. Mr. Shashi Kumar,
Son of late Bishan Lal,
2. Master Yash
(Through his natural guardian Mr. Shashi Kumr),
Both resident of:
House No.18/81,
DDA Flats, Dakshinpuri Extension,
New Delhi 110062. ....PLAINTIFFS
Versus
1. Shri Vishal
S/o Sh. V Murth and late Mrs. Nirmala
R/o House No.E2,
3rd Floor, Property No.19B,
Ward No.1, Mehrauli,
New Delhi 110030. ....DEFENDANT
Date of filing of the suit : 05.05.2018
Date of reserving judgment : 24.02.2024
Date of judgment : 28.03.2024
Page 1 of 26
JUDGMENT
1. Present suit has been filed by the plaintiffs against the defendant for possession and recovery of mesne profits/damages in respect of flat bearing private no.E2, on roof of the third floor measuring approximately 500 sq feet of property of property no.19B in Ward No.1, measuring 240 sq yards in Khasra No.1151/3 min, situated in abadi of Lal Dora in village Mehrauli, Tehsil Hauz Khas (Mehrauli) New Delhi 110030 (hereinafter referred to as suit property).
2. Before proceeding further with the case it is pertinent to mention herein that during the pendency of the trial, defendant no.1 had expired and defendant no.2 being her legal heir continued with the case.
3. The brief facts of the case are that, as alleged, the plaintiff no.1 and his since deceased wife Lt. Smt Natasha were the absolute owner/ landlords of one flat bearing Private No.E2, on the roof of the third floor measuring approximately 500550 sq feet of the property at property no. 19B in ward no.1, measuring 240 sq yds in Khasra no.
1151/3 min, situated in abadi of Lal Dora in Village Mehrauli, Tehsil Hauz Khas (Mehrauli), New Delhi110030. It is has been alleged that the plaintiff no.1 and his since deceased wife Natasha Page 2 of 26 were the joint owners of the suit property, however, due to the untimely demise of the wife of the plaintiff no.1 dated 01.08.2016, the undivided 50% share in the abovementioned premises by way of Hindu Succession got devolved upon the only surviving legal heirs ie plaintiff no.1 & plaintiff no.2 being the son of the deceased. The death certificate has been appended and exhibited as EXHPW1/3.
4. It is alleged that the plaintiffs had let out the subject property for residential purpose on rent for a fixed period of 11 months, w.e.f 01.03.2014 for Rs 6,500/ per month. Further, a tenancy lease agreement was executed between the parties dated 08.03.2014 mentioning all the terms and conditions. The same has been appended along with the plaint, duly exhibited as PW1/5(OSR).
5. It is alleged that the said tenancy was terminated with the efflux of time on 31.01.2015 and no fresh agreement was executed between the parties.
6. It is stated by the plaintiff that the possession on the part of the defendant no.1(deceased), after the termination of the tenancy agreement is wholly unauthorized/illegal and the defendant are liable to be evicted from the suit property along with paying Rs Page 3 of 26 10,000/ per month towards the unauthorized use/ possession of the suit premises till the possession of the suit premises. Further, the plaintiff sent a legal notice to the defendant dated 07.04.2018 calling upon the defendant to make the payment of arrears of rent, mesne profit and further, to handover the quiet, peaceful and vacant physical possession of the suit property. The same has been appended by the plaintiff and duly exhibited as PW1/6.
7. The plaintiff has valued the suit for Rs 3,12,000/ and ad valorem fees of Rs 5,320/ has been appended by the plaintiff.
8. The defendants no.1 & 2 in their joint written statement have raised a preliminary issue pertaining to the suit not being maintainable as the same is undervalued, along with other objections.
9. Further, the defendants have mentioned in their written statement that the plaintiff has fraudulently executed the sale deed by playing fraud upon the defendant no.1 without any consideration by misusing the property of document of defendant no.1 as a collateral security against the loan of Rs 1,00,000/ advanced by the plaintiff to the husband of defendant no.1.
Page 4 of 2610. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
11. On the pleadings of the parties following issues were framed on 13.08.2018:
(1)Whether the plaintiff is entitled to a decree of possession against the defendants in respect of the suit property?OPP (2)Whether the plaintiff is entitled to a sum of Rs.3,12,000/ towards recovery of arrears of rent?OPP (3)Whether the plaintiff is entitled to mesne profit @ Rs.7150/ per month w.e.f. 01.05.2015 to 01.04.2018 along with pendentelite and future interest?OPP (4)Whether the defendant is the owner of the suit property and the plaintiff has fraudulently manipulated and fabricated the sale documents of the suit property in his favour under the garb of mortgage?OPD (5)Whether there is relationship of landlord tenant between the parties?OPP (6)Relief.
12. PW1 Shashi Kumar (plaintiff no.1) entered into witness box as PW1.She tendered her evidence by way of affidavit Ex.PW1/A. She relied upon Conveyance Deed dated 02.09.2009 executed by defendant no.1 in favour of plaintiff no.1 and his late wife Smt. Natasha as Ex.PW1/1, Site Plan as Mark X1, death certified of Page 5 of 26 Smt.Natasha as Ex.PW1/3, copy of Aadhar card of plaintiff no.1 as Ex.PW1/4 and Sale Deed Ex.PW1/5(OSR). He was crossexamined and discharged.
13. Upon perusal of the said exhibit, it is evident that the same was executed between the parties herein, being duly registered before the Sub Registrar V New Delhi dated 03.09.2009 bearing registration number 11,553 in additional book no.1 vol. no.9,490 on page 100106, for a sale consideration amount of Rs 5,00,000/, which was paid by DD amounting to Rs 3,00,000/ and remaining Rs 2,00,000/ in cash, which stands acknowledged in the registered sale deed.
14. The defendants have not led any satisfactory evidence to rebut the same.
15. Per Contra, the defendant have led their evidence wherein they have exhibited a certified copy of the registered conveyance/ sale deed executed in their favor by the erstwhile owners dated 07.02.2004 being duly registered and having no. 1435 in addl book no.I vol. 3812 on pages 52 to 56, before the Sub Registrar V, New Delhi, for a sale consideration amount of Rs 2,00,000/. The certified true copy of the same was exhibited as MARK DW1/1(COLLY). Further, the original registered sale deed has not been exhibited by the defendants. DW1 has further relied upon copy of electricity bill for the month of November 2009 and March 2010 as mark DW1/2, site plan of suit property as Ex.DW1/3, photocopy of Aadhar card as Page 6 of 26 Ex.DW1/4, photocopy of death certified of his father late K. Vishnu Murthy as Mark DW1/5, copy of police complaint dt.07.09.2017 as Mark DW1/6, copy of legal notice dated 16.02.2018 sent to plaintiff as Ex.DW1/7, copy of tracking report as Mark DW1/8, cop of reply of plaintiff's legal notice as Ex.DW1/9 and copy of tracking report as Mark DW1/10.
16. DW1 was crossexamined in part. However, vide order dated 23.08.2023, opportunity of defendant to lead further DE was closed.
17. I have heard arguments and perused the record carefully.
18. All the issues settled in the present case are interconnected based on the same evidence and hence can be conveniently disposed of together.
OBSERVATIONS:
19. From the facts of the matter, it is evident that there exists two registered sale deeds. The sale deed in favour of the defendant is dated 2004 while the sale deed in favour of the plaintiff, executed between the plaintiff and defendant dates 2009. Further, it is evident that the earlier registered sale deed in favour of the defendant goes to prove the existing chain of documents visàvis the most recent registered sale deed. Further, it also establishes the derivative right qua which the defendants herein (now deceased) executed the registered sale deed dated 2009 in favor of the plaintiff.
20. The defendants can not be allowed to approbate and reprobate in the Page 7 of 26 same breath and in the same course of pleadings.
21. Further, the defendants have not sought a relief of cancellation by way of declaration visàvis the registered sale deed as executed by them in favor of the plaintiff.
22. The Hon'ble Supreme Court of India in case of Damodhar Narayan Sawale (D) through LRs. vs. Shri Tejrao Bajirao Mhaske & Ors, (2023) SCC Online SC 566 has held that while observing that the need to take into consideration the surrounding circumstances and the conduct of parties in deciding the passing of title would arise only if the recitals in the document are indecisive and ambiguous, the Hon'ble Supreme Court said that the Hon'ble High Court has committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial Court. A two Judge Bench of Hon'ble Justice M.R. Shah and Hon'ble Justice C.T. Ravikumar clarified that "where a deed of sale had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold".
23. Going by the background of the case, as per the plaint, the first two original defendants sold the suit field in favour of the plaintiff as per registered sale deed. Soon on its execution the Plaintiff was put in Page 8 of 26 possession but the second defendant started disturbing his possession. Suit was then filed in 1979. In view of the registered sale deed, he obtained absolute title over the suit land and in such circumstances, the second defendant who sold the same for discharging debts and family got no right or reason to disturb his peaceful possession. The total sale consideration of ten thousand was given to defendant for the said entire extent of over 3 acres as the first defendant obtained title over 2 acres out of the total extent from the second defendant as per registered sale deed and the second defendant remained as the owner in possession of the balance one acre. It was his case that the second defendant had utilised the sale consideration passed on to him for different purposes, including to pay his debts. Thereafter, for the non compliance with the order of the Chamber Judge, the SLP stood dismissed qua sixth respondent.
24. When the matter reached the Trial Court, it was concluded that the plaintiff had not purchased the suit field as claimed and the sale deed was a sham document which was executed only as a security for a money lending transaction and consequently, the original suit was dismissed with costs. The Regular Civil Appeal, filed by the unsuccessful plaintiff before the First Appellate Court was allowed. After considering the submissions and referring to the Fragmentation Act, the Apex Court observed that it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the Page 9 of 26 better cultivation thereof. The Apex Court further observed that the decision of the High Court on the validity of the sale transaction covered under the sale deed executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, were unsustainable.
25. "The very object of the mandate for registration of transfer of an immovable property worth more than Rs.100/ under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary", added the Court. While affirming the fact that there can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor, the Hon'ble Apex Court elucidated that if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting nonpassing of consideration to prove the said asserted fact. "Certainly, parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose", added the Court. The Bench went on to highlight that in view of the factum of registration of the sale deed and admission of its execution and the recording of payment of consideration thereon, the second Page 10 of 26 respondent was not justified in raising grievance, initially, even against the sale of the extent of one acre. Thus, noticing that by virtue of Section 54 of the Transfer of Property Act and Section 17 of the Registration Act and since the immovable property was worth more than Rs 100, the deed was reduced in writing and registered, the Bench concluded that the intention of the parties was also reflected specifically in the deed and at the same time, nothing reflected a contraintention not to pass the title and ownership even impliedly therein.
26. Hon'ble Apex Court has further held that:
"10. Even though the powers under Article 136 of the Constitution of India must be exercised sparingly, yet there is absolutely nothing in the said Article which prohibits the Supreme Court from reversing even concurrent findings of the fact by courts below, if it is of the opinion on the basis of the evidence on record, that affirming the findings of the courts below would result in a grave miscarriage of justice. It was so held by this Court in Charanjit & Ors. v. State of Punjab & Anr. (2013) 11 SCC 163 [LQ/SC/2013/698] as also in Adambai Sulemanbhai Ajmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 [LQ/SC/2014/586 ;] .
Therefore, if a relevant material legally brought on record and the question of law arising out of its Page 11 of 26 existence were not considered by the High Court, despite its due consideration by the First Appellate Court, while reversing the judgment founded on such consideration this Court has necessarily to consider the same in invocation of the power under Article 136. While considering this appeal, in that view of the matter, it is only proper and profitable to refer to the following crucial and relevant facts obtained in the case:(i) Exhibit 128 is a registered sale deed.(ii) Its execution is admitted by both the original defendant. (True that the second defendant (first respondent herein) contends that it was executed as a collateral security at the time of a money lending transaction).(iii) The second defendant (first respondent herein) has also admitted execution of registered sale deed in favour of defendant No. 1 (earlier in point of time than Exhibit
128) in respect of 2 acres and 20 guntas. (Here also, the second defendant claimed that the sale deed was executed as a collateral security for the money borrowed and therefore repayable to him along with the quantified fixed interest thereon).
11. We have already referred to the issues/points formulated by the courts below and the findings Page 12 of 26 returned by the respective courts which formed the basis for their respective judgments. Bearing in mind the decisions referred supra and also the relevant facts available, as noted above and also the relevant provisions under the relevant enactments, to be referred to hereafter, we may proceed to consider this appeal.
12. As noted earlier, after reversing the judgment and decree of the First Appellate Court, the High Court restored the decree of the trial Court. In this context, it is apt to note the reframed substantial question of law No. 3 by the High Court, extracted above, that carries the query whether, while reversing the findings recorded by the trial Court, the lower appellate Court had ignored the findings recorded by it on the material facts in the light of undisputed factual position. We may hasten to add here that a bare perusal of the impugned judgment would reveal that after framing such a question of law the High Court did the very seemingly attributed act inasmuch as it did not consider the legal impact and effect of Ext. 128, registered sale deed, which was taken into consideration by the First Appellate Court, while reversing the judgment and Page 13 of 26 decree of the First Appellate Court.
13. A scanning of the trial Court judgment would reveal indisputably that despite the admission of the execution and registration of Exhibit 128 sale deed dated 21.04.1979 by the second defendant in favour of the plaintiff and also that of the sale deed dated 04.07.1978 by him to the first defendant, it had failed to consider the legal effect and impact of execution and registration of such a sale deed in view of the provisions under the Transfer of Property Act, 1882, as also the Registration Act, 1908, and sans such consideration accepted the second defendant contention that it is a sham document. Paragraph 7 of the judgment of the trial Court would reveal that despite the admission of execution and registration of Ext. 128 sale deed dated 21.04.1979 by the second defendant as also by the first defendant, the trial Court held that the burden of proving the factum of execution of sale deed and passing of the consideration amount was on the plaintiff. The trial Court had also failed to consider the relevance and application of Section 92 of the Indian Evidence Act, 1872 while appreciating the oral evidence against Ext.
128. Evidently, the trial Court accepted the case of the Page 14 of 26 second defendant that the said sale deed was one executed as a collateral security to a money lending transaction and that it was never intended to be acted upon. The trial Court has also held the sale deed virtually invalid by accepting the contention that the transaction violated the provision under Section 8 of the Fragmentation Act and in that regard the sale deed dated 04.07.1978 executed between defendant Nos. 1 and 2 was held as one creating a fragment and therefore, violating the prohibition. This was done without looking into the question as to its jurisdiction to entertain and adjudicate upon such a plea in view of the statutory bar of jurisdiction under Section 36A of the Fragmentation Act. In that regard it is noteworthy that nothing was specifically mentioned in paragraph 14 or anywhere else in the written statement filed by the second defendant regarding the violation of the provisions under the Fragmentation Act and, in fact, only vague reference was made on that aspect in paragraph 16 reproduced as under:
16. ...In event, according to provision of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff not entitled to any relief.Page 15 of 26
14. In view of the aforementioned facts as also taking note of the contentions raised on behalf of the contesting respondents, in support of the impugned judgment, that the First Appellate Court failed to consider at all the voidness of the sale transaction of 2 acres and 20 guntas between original defendant 1 and 2, its impact on the sale of consequentially created fragmentation of one acre by the second defendant and the whole sale transaction effected under Exhibit 128 sale deed by operation of the Fragmentation Act and further that the said aspect was rightly considered by the High Court, we think it only proper to deal with that matter appropriately.
15. At the outset, we may say that there is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word transfer is not defined under the Fragmentation Act though the expression land has been defined Page 16 of 26 thereunder. As per Section 2 (5) of the Fragmentation Act, the term land means, agricultural land whether alienated or unalienated. In the said circumstances, to know the meaning of the words transfer of any land used in Section 9 (1) of the Fragmentation Act, one may have to see the definition of transfer of property under Section 5 of the Transfer of Property Act, 1882, (hereinafter referred to as, the TP Act), which reads thus:
5. Transfer of property defined. --In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or it himself] and one or more other living persons; and to transfer property is to perform such act.[in this section living person includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]
16. In the contextual situation it is also relevant to refer to the definition of sale given under Section 54 of the TP Act, which reads thus: Page 17 of 26
54. Sale defined.--Sale is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
17. The term transfer is a word in a broader sense and the word sale is a specific word. Sale, going by the definition under T.P. Act, presupposes transfer from one person to another of the right in property and in other words, in sale, the ownership of the property is transferred. A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/ shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/ by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned. We are not oblivious of the fact the mere registration of a document is no proof of its execution.
We will deal with this aspect a little later. It will not be inappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the Page 18 of 26 purpose of the better cultivation thereof;
18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified local area, but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof.
19. In the context of the above mentioned rival pleadings, contentions and the position revealed from the facts and the provisions, the question to be considered is whether the second defendant herein had made out any case for attracting the provisions of the Fragmentation Act /or in other words, whether the trial Court was right in applying the provisions under the said Act and the High Court was legally correct in restoring the decree of the trial Court after reversing the judgment and decree of the First Appellate Court, in view of the mutually annihilative pleas taken up by the second defendant viz., the first respondent herein and accepted by the trial Court and the High Court. Contextually, it is apposite to state that though in a suit a defendant is entitled to raise alternative inconsistent Page 19 of 26 plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment.." AIR 2023 SC 3319"
27. Therefore, the Hon'ble Supreme Court held that a registered sale deed is a final and conclusive document conveying the title of the property when executed with due compliance.
28. In the above case as cited, Defendant No.1 and No.2 sold the land in question to the Plaintiff, in accordance to the registered Sale Deed giving complete ownership of the land. However, upon Defendant No.2 causing disturbances to the Plaintiff's possession, dispute arose between parties wherein Defendant No. 2 questioned legitimacy of the Sale Deed stating the deed to be a sham document and not meant to be acted upon.
29. It was submitted that the sale Deed was executed without intention of transferring ownership and only as collateral financial security. The matter travelled from trial court to Hon'ble High Court and then to Hon'ble Apex Court. The question before Apex Court was whether the title is transferred through the sale deed, even if transfer of the same is not intended?
30. While answering the question, Hon'ble Apex Court referred to Section 54 of the Transfer of Property Act, 1882 (TOPA) along with Section 17 of the Indian Registration Act, 1908; which conclusively mandates for registration of sale deed of an immovable property for Page 20 of 26 its enforcement.
31. Thus it was noted that, the execution and registration of Sale Deed was not in dispute however, the dispute was only for nature of the transaction. It was noted that registered Sale Deed having recitals for transfer of right, title and interest in favour of recipient along with recitals of sale considerations shall give a presumption of valid title. Therefore, it is entirely upon the Defendant to establish otherwise and to prove that it did not reflect the true nature of transaction.
32. Such registration along with consideration for sale, validates the transfer of property with all its rights and title that the owner possessed. However, Hon'ble Apex Court further noted that the need to refer to the circumstances and the conduct giving rise to the deed must come only when the document passing title is ambiguous or indecisive. It further noted that when execution of Sale Deed is challenged then registration itself can not be held as proof of execution and compliance under section 67 of Evidence Act is necessary.
33. The Hon'ble Apex Court in this case, read provisions of Transfer of Property Act, 1882 along with the provisions of Registration Act and further emphasized that a Sale Deed, when registered and executed in due compliance, shall confer a valid and legitimate title to the receiver.
34. In view of above discussion this court is of the view that the Page 21 of 26 plaintiffs have been able to establish that the plaintiff is entitle to decree of possession against the defendant in respect of suit property. Plaintiffs have also been able to establish their entitlement to a sum of Rs.3,12,000/ as prayed for. Plaintiffs have also been successful in establishing that there is relationship of landlord and tenant between the parties as Lease Agreement Ex.PW1/5 has been duly proved on the record. As such issues no.1, 2, 3 and 5 are decided in favour of plaintiffs and against the defendant.
35. Further defendants have failed to prove that he is owner of the suit property and the plaintiffs have fraudulently manipulated and fabricated the sale documents of the suit property in his favour under the garb of mortgage. Issue no.4 is decided adverse to the defendant.
DECISION/RELIEF
36. In light of the above mentioned, this Court is impressed upon to allow the present suit in favour of the plaintiff and against the defendants through their LR.
37. The relief of money decree amounting to Rs.3,12,000/ as prayed for is granted in favour of the plaintiff along with pendent lite interest at a simple rate of 12% per annum from the date of filing of the present suit till the date of decision, being the decree amount. Further, interest at a simple rate of 12% per annum is granted on the decree amount till the date of its full and final realization.Page 22 of 26
38. Further, the plaintiffs are entitled to a relief of possession qua the subject property, against the defendant herein, which is being granted.
39. Costs of litigation of Rs 25,000/ are being granted in favour of the plaintiff and against the defendant.
40. Suit of the plaintiff stands decreed in above terms.
41. Further, for the purpose of granting the relief of possession, as claimed by the plaintiff, the Court by way of the present order is inclined to appoint a Court Commissioner to inspect the suit property, see the status of affairs and determine the condition of the suit property along with the situation on ground, for the said purpose, and to submit a report before this Court.
42. For the same, Sh. Nikhil, Advocate, enrollment No.D/4723/2017, office at Chamber No.824, Lawyer's Chaber Block, Saket Courts, New Delhi, mobile no.9625973189, is appointed as the Local Commissioner. Fees of Local Commissioner is fixed at Rs.75,000/ to be paid by the plaintiffs.
43. Upon filing of the report, this Court shall draw/pass a decree, wherein the learned Local Commissioner shall assist this Court and the Plaintiffs shall be put in possession of their property, in accordance with the law.
44. Further, the concerned parties are directed to assist the Ld. Local Commissioner in the process of execution of the Court Commission. The Ld. Local Commissioner is at liberty to seek the assistance of a Page 23 of 26 Draughtsman and/or an architect, as the case may be, for which the expenses shall be paid by the plaintiff.
45. The plaintiff is directed to contact the Ld. Local Commissioner and to remunerate him before the commencement of commission proceedings by paying his fees within a period of seven (7) days from today.
46. The Ld. Local Commissioner is directed to file his/her report within a period of twenty one(21) days from today in accordance with the directions of the Court, and the law of the land.
47. Further, in several judgments as pronounced by the Hon'ble High Court of Delhi, it has been held as follows:
Louis Vuitton Malletier Petitioner vs. Mr. Omi & Anr. S CCP(O) 10/2018 in CS(COMM) 291/2018 Delhi High Court (07 Aug 2018)
22. In the opinion of this Court, a Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. [See:
Autodesk Inc. & Anr. v. Arup Das & Ors, 2013 SCC OnLine Del 4225 and Anil K. Aggarwal V. Union of India, 2014 SCC OnLine Del 2292].
48. In the case of Anil K. Aggarwal vs. Union Of India & Anr 2014 SCC OnLine Del 2292 Delhi High Court (05 Nov 2014) held Page 24 of 26 that:
12. The person to whom commission to record evidence is issued acts as an arm/agent of the Court which has issued the commission. We find a Single Judge of this Court in Autodesk INC v. Arup Das 205 (2013) DLT 665 to have, while holding so, also observed that the Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out the precincts of his Court and a Local Commissioner is appointed to act as the eyes and ears of the Court.
49. In Light of the above stated, the Ld. Court Commissioner is directed to complete the proceedings of the commission in an expeditious manner, whilst acting as an extension of the Court.
50. The SHO of the concerned police station is directed to provide police assistance and protection to the Ld. Local Commissioner for effective execution of proceedings of the Commission. The concerned SHO is hereby directed to depute two (2) police constables, male & female, for the protection and assistance of the Ld. Local Commissioner on the day(s) of the execution of the proceedings.
51. It is evident that the plaintiff is not in possession of the subject property, and thus, the court fee has to be calculated on the market value of the subject property. The Ld. Local Commissioner is also directed to assist the Court with the present issue at hand.
52. The plaintiff is being granted a period of four(4) weeks to rectify the Page 25 of 26 issue pertaining to the requisite court fees, as per the provisions of the Court Fee Act. The plaintiff is directed to file a valuation report based on the present market value of the property, and accordingly file the requisite court fee as per the statute.
53. The relief(s), as granted, shall be subject to filing of the requisite Court fees, as stated in the preceding paragraphs.
54. Decree sheet be prepared upon filing of deficit court fees.
55. Suit of the plaintiff stands disposed of.
56. File be be tagged with the miscellaneous application for further proceedings and upon completion of proceedings in the miscellaneous file, both files be consigned to record room.
57. Ahlmad is directed to register separate miscellaneous application for compliance and report of Local Commissioner. Announced in the open Court on 28.02.2024.
(Sunil Beniwal) Additional District Judge06(South), Saket Courts, New Delhi.
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