Delhi District Court
Mrs. Sunita Sinha W/O Mr. S. Sinha vs M/S Leela Builders Pvt Ltd on 10 January, 2019
IN THE COURT OF MS VANDANA JAIN
ADDITIONAL DISTRICT JUDGE-07 (SE)
SAKET COURTS NEW DELHI
CS No. 1180/17
[MORE THAN NINETEEN YEARS OLD]
In the matter of:
1. Mrs. Sunita Sinha W/o Mr. S. Sinha
W/o E-177, East of Kailash, New Delhi.
2. Mr. Arvind Krishen Malhotra S/o Com. G.D. Krishen
R/o C-363, Sheikh Sarai Phase-I, New Delhi-110017
Also at:
273, Gulmohar Enclave, New Delhi-110049
...........Plaintiffs
VERSUS
1. M/s Leela Builders Pvt Ltd
2. M/s Swadesh Construction Pvt Ltd
3. M/s Meghdoot Overseas Pvt Ltd
4. M/s Priya Electricals India Pvt Ltd
5. M/s Pawansut Plastics Pvt Ltd
6. M/s Dam Traders Pvt Ltd
7. Mr. U.S. Sitani
8. Mrs. Leela Sitani
All R/o of 48, Sunder Nagar, New Delhi-110003
9. Mr Rajiv Luthra S/o R.K. Luthra
A-1/63, Panchsheel Enclave, First Floor,
New Delhi
10. Mr. Sanjeev Sethi S/o Late Brig. S.C. Sethi
R/o 21, Langford Court, Langford Garden,
Bangalore.
......... Defendants
Date of Institution : 13.08.1999
Date of reserving : 17.12.2018
Date of Judgment : 10.01.2019
Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 1 of 34
JUDGMENT
1. Present suit for mandatory injunction (or in the alternative for grant of decree of possession), recovery of mesne profits and for permanent injunction has been filed in respect of property bearing no. 48, Block No. 171, Sunder Nagar, New Delhi measuring 966.33 Sq Yds. (hereinafter referred to as suit property).
2. The brief facts of the present case are that suit property was allotted to one Sh R.N. Luthra vide perpetual lease deed dated 30.11.1961 and he constructed two and a half storeyed superstructure/bungalow alongwith servant quarters and garage block over the suit property. Sh. R.N. Luthra died on 16.12.1972 leaving behind a will dated 10.09.1971 whereby he bequeathed and divided the suit property in 1/ 3 rd equal shares to his grandson namely Sh Rajiv Luthra (defendant no. 9 herein), his daughters namely Smt Santosh Sethi and Smt. Nirmal Krishnan. The suit property was probated in the name of the aforesaid legal heirs vide order dated 26.11.1975. Thereafter, Smt Santosh Sethi died on 29.06.1984 leaving behind a will dated 20.02.1983 whereby she Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 2 of 34 bequeathed her 1/ 3rd undivided share to her son namely Sh Sanjeev Sethi (Defendant no. 10 herein). Thereafter, Smt Nirmal Krishnan had died on 03.10.1990 leaving behind her 1/ 3 rd undivided share in the suit property in favour of her husband Com. G.D. Krishnan vide will dated 30.12.1988. Thereafter, suit property was mutated in the name of the abovesaid persons vide letter dated 04.05.1992. Com. G.D. Krishen died intestate on 19.09.1998 leaving behind the plaintiffs as legal heirs.
3. Defendants no. 1 to 6 are companies incorporated under Companies Act and defendant no. 7 represented himself to be the director and authorized signatory of defendant no. 1 to 3 and defendant no. 8 represented herself to be the director and authorized signatory of defendant no. 4 to 6.
4. During the lifetime of Smt Nirmal Krishnan, she alongwith defendant no. 9 & 10 entered into an agreement to sell dated 24.01.1989 with the defendant no. 1 to 6 wherein they had agreed to sell their respective shares in the said property to the defendant no. 1 to 6 for a total consideration of Rs. 80,70,000/-.
5. It is further submitted that in performance and discharge of Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 3 of 34 their obligations under the said agreement to sell, the then owners of the property initiated action to seek cancellation of re-entry as agreed upon between the parties. On the basis of representatives made by the erstwhile owners of the suit property, L&DO cancelled/revoked the re-entry orders and re-entry was withdrawn by the lessor on or about 10.09.1990 and parties had also obtained NOC for sale of the said property in accordance with the agreement to sell u/s 269 UC of Income Tax Act. Thereafter, the then owners had also initiated action for mutation of the property in their names but in the meanwhile, Smt Nirmal Krishnan died on 03.10.1990. Thereafter, Com G.D. Krishnan got his name substituted alongwith the names of the other two joint owners i.e. defendant no. 9 & 10 as owners of the property vide letter dated 04.05.1992 issued by L&DO.
6. It is further stated that ground and first floor of the suit property were in possession of the tenants at the relevant time and to facilitate the handing over the possession of the suit property to defendant no. 1 to 6, joint owners of the property gave a power of attorney in favour of the representatives of the defendant no. 1 to 6 Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 4 of 34 for getting back the possession of the said premises. On the basis of power of attorney, defendant no. 1 to 6 got the premises vacated from the said tenants and as agents of the then owners have occupied the said premises. Though the second floor of the suit property was in possession of the joint owners of the property, defendant no. 1 to 7 have also started using the said portion of the premises without any authorization from the joint owners. Defendant no. 1 to 8 who had obtained the possession of the suit property failed to pay the part consideration of Rs. 62,40,000/- in terms of clause 4 of the agreement to sell. Thereafter, agreement to sell stood cancelled and part payment of Rs. 10,50,000/- stood forfeited. Thereafter, joint owners of the suit property demanded back the possession of the suit property from the defendant no. 1 to 8 but they failed to return back the possession of the suit property.
7. The joint owners had also called upon the defendant no. 1 to 8 vide letter dated 23.11.1993 to return back the possession but defendants failed to vacate the same. Hence, this suit.
8. Written statement was filed by defendant no. 1 to 8 wherein it Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 5 of 34 was stated that defendants are in peaceful possession and occupation of the suit property for last 11 years since March, 1989 which has also been in the knowledge of the plaintiffs. Defendants had purchased the suit property pursuant to an agreement to sell dated 24.01.1989 executed between them and the joint owners of the property namely Smt Nirmala Jain (since deceased), Sanjeev Sethi (defendant no. 10 ) and Rajiv Luthra (defendant no. 9) and no dispute had ever been raised by any of the owners. It is further stated that suit has not been correctly valued as at the time of institution of the present suit, the suit property had appreciated manifolds and was approximately worth Rs. four Crores whereas sale consideration was only Rs. 80,70,000/-.
9. It is further stated that erstwhile owners of the suit property have already received full consideration in respect of the suit property and had handed over the vacant and peaceful possession of the premises to the defendants on 03.08.1989 and that is the reason defendant no. 9 & 10 who were original seller had not chosen to file the suit but the suit has been filed by LR of one of the deceased seller. The plaintiffs by means of fraudulently making Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 6 of 34 false documents at the back of the defendants by not disclosing their transaction to L&DO in the year 1992 had mutated the name of the Com. G.D. Krishna, Rajeev Luthra and Sanjeev Sethi in the record with respect to lease hold suit property. It is further stated that while possession was handing over in the year 1989, application for substitution was made by aforesaid persons before L&DO in October, 1991.
10. It is further stated that on 03.08.1989 an irrevocable general power of attorney was jointly executed by sellers in favour of defendant no. 7, countersigned by Com. G.D. Krishna granting absolute ownership in favour of the defendants in respect of the suit property after receiving the full consideration by them. The present suit has been filed by LR of Nirmala Krishnan after nine years of her death without joining other two surviving sellers namely Sanjeev Sethi and Rajiv Luthra. It is also stated that no dispute was raised by Com. G.D. Krishnan, husband of Nirmala Krishnan during his lifetime. The present suit has been filed after 11 months of his death. It is stated that an agreement to sell was entered on 24.01.1989 and advance payment of Rs. 10,50,000/- Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 7 of 34 was given to sellers and clearance under Section 269 UC of Income Tax Act was taken and sum of Rs. 12,00,000/- by two banker's cheque was given on 01.08.1989. In the meantime, sellers were unable to have the ground floor and first floor of the suit property vacated from the tenants in discharge of their responsibility to give clear possession of the entire property to the defendants and they on 03.08.1989 handed over symbolic possession of the tenanted portion and vacant physical possession of the self occupied portion i.e. second floor to the defendants and on the same date sum of Rs. 15,00,000/- was paid to the sellers under a receipt by three cheques of Rs. 5,00,000/- each which were duly accepted by them.
11. The defendants got the respective floors vacated from the tenants after paying a sum of Rs. 25,00,000/- and Rs. 20,00,000/- respectively for the ground floor and first floor and which was to be adjusted against payment to be made to sellers. Further a sum of rs. 8,23,646.72/- towards the total demand for revocation of re- entering and condoning the breaches alongwith interest was to be paid by lessor and this amount was paid by way of demand draft to Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 8 of 34 the L&DO under the cover of letter dated 26.04.1990 written by Rajeev Luthra from the accounts of the defendants which was also got adjusted towards the balance consideration to be paid to the seller. It is stated that in total sum of Rs. 90,73,646.72/- for purchasing the suit property as against the agreed price of Rs 80,70,000/- was paid.
12. It is stated that all the documents including irrevocable general power of attorney executed by seller in favour of the defendants leaves no room for any doubt that full payment have already been made against sale consideration and there had been no breach of contract at the part of the defendants.
13. It is stated that property having being transferred to said defendants could not be devolved on Com. G.D. Krishnan after demise of Nirmal Krishnan on 30.11.1990. With respect to letter dated 23.11.1993 allegedly written by joint owners, it is stated that no such letter was ever received by defendants and it is also stated that it is not believable that owners would remain silent for six years after writing the said letter and would not institute a suit. The rest of the contents of the plaint were denied. It is stated that Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 9 of 34 present suit is liable to be dismissed.
14. Replication to written statement was filed wherein the contents of the plaint were reiterated and defence raised in the written statement were denied.
15. Thereafter, following issues were framed on 06.03.2012 as under:-
1. Whether the plaintiffs are entitled to decree of mandatory injunction or in the alternative decree for possession ? OPP
2. Whether the plaintiffs are entitled to decree of mesne profits and if so, at what rate and for what period ? OPP.
3. Whether the plaintiffs are entitled to decree of injunction as prayed for ? OPP.
4. Whether the plaintiffs have no locus standi to file the present case ? OPP.
5. Whether the agreement to sell dated 24.01.1989 stood cancelled as alleged in para 14 of the plaint ? OPP.
6. Whether the suit is barred by limitation ? OPD.
7. Whether the suit has not been properly valued for the Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 10 of 34 purposes of court fees ? OPD.
8. Whether the answering defendants have discharged their obligation under the Agreement to Sell dated 24.01.1989 ? OPD.
9. Whether defendant nos. 1 to 8 were given possession of the suit property after receipt of the full consideration ? OPD.
10. Whether the predecessor-in-interest of the plaintiffs and defendant no. 10 ceased to have any right, title or interest in the suit property, after execution of the duly registered, irrevocable General Power of Attorney dated 03.08.1989, in favour of the nominee (defendant no. 7) of defendant no. 1-6 ?
OPD.
11. Relief.
16. Thereafter, matter was listed for plaintiff's evidence. Plaintiff No. 1 examined herself as PW-1. Thereafter, PE was closed.
17. Thereafter, matter was listed for defendant evidence Defendants examined Sh. U.S. Sitani as DW-1 who was defendant no. 7 in the present matter. DW-2 is sh Jai Bhagwan, Retd. Sub Post Master, DW-3 is Lalit Kumar, Postal Assistant, DW-4 Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 11 of 34 Surender Saha, Retd Post Master from Kalkaji, Head Post office, DW-5 Rajender Bahadur Singh, Post Master, Naraina, New Delhi. Thereafter, DE was closed.
18. Thereafter, matter was listed for final arguments.
19. I have heard the arguments and have perused the record carefully.
20. Ld Sr. Counsel for plaintiffs has argued that property was sold for total consideration of Rs. 80,70,000/- whereas amount of Rs. 62,40,000/- was not paid by defendants, consequently resulting in cancellation of agreement to sell and forfeiture of advance of Rs. 10,40,000/-. With respect to power of attorney, Ld Sr. Counsel for plaintiff has argued that joint owners had executed a general power of attorney in the name of the representatives of defendants no. 1 to 6 to facilitate the handing over of the possession of the suit property to them for taking appropriate action to get back the possession of the premises from the tenants and same was got vacated, however, it was never handed over back to the owners and the second floor which was in possession of the joint owners was also used unauthorizedly by the defendant Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 12 of 34 nos. 1 to 8 and they are liable to pay mesne profits @ Rs. 1,00,000/- per month alongwith interest @ 24 % per annum. It is further argued that since full consideration was not paid, the defendants are not entitled to retain the possession of the property. It is stated that father of the plaintiff, defendant no. 9 & 10 had got the property mutated in their name in the year 1992 and on 23.11.1993 a letter was written by joint owners to defendant no. 1 to 8 to return back to the possession of the suit property, however, same was not returned and, therefore, suit was filed by plaintiffs in the year 1999 within the period of limitation. Ld Sr. Counsel for plaintiffs has relied upon judgment i.e. Ashok Kumar Vs. Rustam & Ors 227 (2016) DLT 385 on the point that in a suit for possession based upon title, the relief of declaration of title is implicit in it and the limitation for filing such suit will be 12 years in terms of Article 65 of the Limitation Act. Ld Sr. Counsel for plaintiffs has further relied upon judgments:- Currimbhoy & Co. Ltd Vs. L.A. Creets & Ors AIR 1930 CAL 113, Ram Niranjan Das & Anr Vs. Loknath Mandal & Ors AIR 1970 PAT 1, Ajmer Singh Vs. Shamsher Singh AIR 1984 P&H 58, Mahavir Prashad Vs. Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 13 of 34 Sukhdev Mongia & Anr 40 (1990) DLT 82 on the point that one co-owner/co-sharer can maintain a suit for possession against unauthorized occupant.
21. Ld Sr. Counsel for plaintiffs has further argued that in the para no. 10 of the affidavit of DW-1, it is stated that in the agreement to sell it was agreed that defendants would pay another sum of Rs. 62,40,000/- and the vacant physical possession was to be delivered after the payment of the said sum, however, at the stage of receipt of 03.08.1989, new understanding was arrived between the parties that any payment made by purchaser to the defendants for having the property vacated or other payments were made by defendants would be adjusted against final consideration to the sellers. It is argued that though this understanding was stated to be have been arisen on 03.08.1989 but the stamp paper purchased for execution of GPA is of 02.08.1989 which shows that defendants had planned in advance for getting said GPA executed and deposition of DW-1 in this regard is incorrect. Ld counsel has further argued that only documents i.e. agreement to sell cannot confer any right, title or Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 14 of 34 interest in the suit property in favour of defendants and same is hit by judgment titled as Suraj Lamp & Industries (P) Vs. State of Haryana & Anr (2012) 1 SCC 656.
22. On the other hand, Ld counsel for defendants has argued that combined perusal of agreement to sell dated 24.01.1989 and GPA 03.08.1989 would reveal that possession of the entire property was handed over to the defendants after receiving full consideration amount and with an understanding that whatever amount which would be paid by the defendants for vacating the property to the tenants or any payment made anywhere else in respect of the suit property shall be adjusted against balance sale consideration to be paid to the sellers. It is argued that none of the sellers have ever raised any question upon the ownership of the defendants in respect of the suit property since year 1989. It is further argued that mutation got done by husband of Nirmala Krishnan and defendant no. 9 & 10 in the year 1992 is based on fraudulent documents which could not have been done as the title stood transferred to the defendants in the year 1989 itself through an irrevocable registered GPA which is clear from the reading of Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 15 of 34 the GPA itself. It is further argued that suit is barred by limitation as no declaration for cancellation of GPA has been sought which could have been done only within three years from the date of its execution and, therefore, suit for possession filed without seeking declaration in this regard and claiming that limitation period for filing the for same is 12 years is completely misconceived. It is further argued that adequate court fee has not been paid as the value of the suit property at the time of filing of suit was approximately was Rs. 4 Crores whereas initially suit was valued at Rs. 12,00,000/- and though thereafter it was changed to Rs. 80,70,000/- (the sale consideration given in the agreement to sell on 24.01.1989) It is argued that letter dated 23.11.1993 was never received by defendants and even the father of plaintiff namely Com G.D. Krishnan had not filed any suit against defendants and the suit is liable to be dismissed.
23. I shall deal with the issues as here under:-
24. Issue No 4. Whether the plaintiffs have no locus standi to file the present case ? OPP. Issue No 8. Whether the answering defendants have discharged their obligation under Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 16 of 34 the Agreement to Sell dated 24.01.1989 ?. Issue No. 9 Whether defendant nos. 1 to 8 were given possession of the suit property after receipt of the full consideration ? OPD. Issue No 10. Whether the predecessor-in-interest of the plaintiffs and defendant no. 10 ceased to have any right, title or interest in the suit property, after execution of the duly registered, irrevocable General Power of Attorney dated 03.08.1989, in favour of the nominee (defendant no. 7) of defendant no. 1-6 ? OPD.
25. Issue no. 4, 8, 9 & 10 are taken up together, being inter- related.
26. The perusal of the agreement to sell and power of attorney reveals that in the agreement to sell, there was a stipulation to pay Rs. 62,40,000/- on receiving approval u/s 269 UC IT Act and thereafter the possession (vacant physical possession for self occupied portion and symbolic possession for portion occupied by tenants) was to be handed over. This agreement to sell is dated 24.01.1989. The advance payment of Rs. 10,50,000/- was also made. Thereafter on receiving the clearance u/s 269 UC of IT Act, Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 17 of 34 payment of Rs. 12,00,000/- was made on 01.08.1989. This receipt of Rs. 12,00,000/- is signed only by Rajiv Luthra, one of the seller. During the cross examination of PW-1, she stated that this amount was not received by her mother, however, at the same time, it was stated by her that there is no dispute between her and Rajiv Luthra with respect to this amount and suit is against defendants only. In a way, she has acknowledged that the sum of Rs. 12,00,000/- was received by Rajiv Luthra on behalf of all the sellers including her mother, Nirmal Krishnan. Rajiv Luthra was not entered the witness box on behalf of plaintiff to deny this receipt. Then on 03.08.1989, payment of Rs. 15,00,000/- was made through cheques, which is acknowledged by a receipt of even date wherein it is mentioned as under:-
"RECEIVED a sum of Rs. 15,00,000/ (Rupess fifteen lacs only) as further part saleproceed from M/s Leela Builders Pvt Ltd., M/s Swadeshi Construction Private Limited. M/s Meghdoot Overseas Private Ltd., M/s Priya Electricfals Industries Private Limited, M/s Pawansut Plastics Private Ltd. And M/s Dan Traders Private Ltd by means of Banker Cheque No's 258986, 258988, 258985 all dated 01.08.89 drawn on Bank of Madura, Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 18 of 34 Nehru Place, New Delhi110019 for Rs. 5,00,000/ (Rupees five lacs only) each favouring each of us towards the sale consideration in respect of 48, Sunder Nagar, New Delhi. The balance sale consideration shall be paid at the time of registration of the deed of sale.
We have, also handed over the vacant physical possession of the self occupied portion and symbolic possession of the tenanted portion of the aforesaid 48, Sunder Nagar, New Delhi to the aforesaid six cobuyers who shall also be entitled to receive and claim the rent and accordingly the agreement to sell dt. 24.01.89 stands modified to that extent. We have executed General Power of Attorney in favour of nominee of the purchasers Shri U.S. Sitani which is irrevocable. Delhi : 1. Smt. Nirmal Krishnan.
Dated: 03.08.89.
2. Shri Sanjiv Sethi.
3. Shri Rajiv Luthra.
27. Alongwith this receipt, an irrevocable registered GPA was also executed on same date. Some important authorizations which were given in the GPA are as under:-
Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 19 of 34
28. "2. To carry out construction, reconstruction, additions, alterations either after demolition or otherwise over the said plot, engage any contractors, architects, labour sub contractor, workmen, electricians, plumber, sanitary engineers, structural engineer, draftsman and any other person(s) for completion of the construction over the said property.
3. To apply and obtain any extension for period of construction before the Municipal Authority and for revalidation of plans, to sign and submit any plans for additions, alterations or revised plans, to apply and obtain form 'C' from 'D' severage connection, completion, to pay any composition compounding fee, betterment charges, to get any unauthorised construction regularised, to furnish any indemnity, guarantees, security bond, security.
7. To create leases, transferable, heritable licences, to receive consideration, premium, rents, licence fee, issue receipts, give discharge thereof, to sign and execute any rent note, to induct or reject tenants, and to appear before any concerned authority for such eviction;
8. To sell to sign and execute any agreement to sell, flatbuyer agreement, deed of sale, receive earnest money, part payment, consideration, advance amount, appear and act Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 20 of 34 before the Registrar of Assurances or any other Registrar which may be appointed under the Delhi Apartment Ownership Act, to admit execution and receipt of consideration and get the said documents registered, for the said purpose to obtain any requisite permission or sanction, incometax clearance, to engage any Chartered Accountant and to apply for permission to sell from the President of India/Lessor of land/L&D.O., Competent Authority;
29. These clauses above even gives power to demolish or reconstruct, sell, create lease or deal with the property in any manner whatsoever. This GPA is exhaustive. In the receipt, it is clearly mentioned that agreement to sell stands modified to this extent. Section 62 of The Indian Contract Act, 1872 provides effect of novation, rescission and alteration of contract. It provides that "If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed." In the agreement to sell between the parties i.e. original sellers and the defendant no. 1 to 8 had agreed to pay total consideration of Rs. 80,70,000/- out of Rs. 10,50,000/- was paid as earnest money and remaining amount was to be paid after Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 21 of 34 seeking clearance u/s 269 UC of Income Tax Act. This agreement was of 24.01.1989, however, all the parties who were the signatories to the agreement to sell, later on executed an irrevocable GPA alongwith receipt dated 03.08.1989 altering the terms of the agreement to sell and handing over the possession of the suit property to the defendants giving the absolute rights by GPA to defendant no. 7 to deal with property in the manner howsoever. The execution of these subsequent documents i.e. GPA and receipt are nothing short of novation of the agreement to sell by altering the condition of the same. Any third party cannot raise an objection to the same as all the stakeholders of the suit property at the relevant time signed these documents. It is also pertinent to mention here that execution of GPA and the receipt dated 03.08.1989 is not disputed even by the plaintiffs.
30. What else is required to show that the property was handed over after receiving full and final consideration. The owners did not retain any right with them, except for being owners on papers in respect of the suit property. Even the cheques to the tune of approximately Rs. 8,23,000/- were paid by the defendants to the Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 22 of 34 L&DO for revocation of orders of re-entry, though under the name of the owners. It is pertinent to mention here that none of the original owner had ever taken a legal action against the defendants after executing agreement to sell and general power of attorney in favour of defendants. During cross examination of PW- 1 by Ld counsel for defendants, she has admitted that defendant no. 9 & 10 refused to join them in the present suit. She has further admitted that her mother never took any legal action against defendants during the period when she was alive though it was voluntarily stated that she remained alive for very less period after execution of these documents, however, no plausible explanation was given to show that her mother was constrained or compelled by any circumstance in not filing any suit or taking any legal action against defendants when she was alive. Even a single letter or correspondence between parties could not be shown to indicate or prove that her mother had ever demanded any balance sale consideration from defendant nos. 1 to 8 after execution of GPA dated 03.08.1989. The father of the plaintiffs remained alive for almost nine years from the date of execution of these documents Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 23 of 34 but he also did not take any action against defendants. The two original owners i.e. defendant no. 9 & 10 are alive and they were neither made plaintiffs nor were called by plaintiff as witnesses to support their version. Had there been any substance in the version of the plaintiffs, the original owners would have definitely joined the plaintiffs in this suit and would not have left the alleged unpaid money of Rs. 62,40,000/- so easily. The suit has been filed after nine years of death of the Nirmal Krishnan. Merely getting the property mutated in their favour by the husband of Nirmal Krishnan and defendant no. 9 & 10 has no bearing on this case and does not give any strength to the case of the plaintiffs. As far as the argument of Ld Sr. Counsel for plaintiffs that the GPA does not confer any right, title or interest in the suit property in favour of defendants in view of judgment Suraj Lamp & Industries Pvt Ltd (Supra) is concerned, it is stated that the suit has not been filed by the defendant rather it is filed by plaintiff. The defendants have not filed any counter claim seeking declaration with respect to ownership in respect of the suit property. However, the facts remains that an irrevocable GPA had been executed by joint Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 24 of 34 owners in favour of defendant no. 7 giving all rights to him in respect of the suit property which are vested with an owner. The GPA is still in existence and had never been revoked. As far as judgment Suraj Lamp & Industries Pvt Ltd (Supra) is concerned, this judgment was passed in October, 2011 and is prospective in operation whereas GPA was executed on 03.08.1989, so this argument is inconsequential in this case. Ld Sr. Counsel for plaintiffs has also argued that in the testimony of DW-1, he has stated that it was decided on 03.08.1989 itself that GPA would be prepared, however, this part of the testimony is belied by the date of purchase of stamp paper on which the GPA is prepared. GPA is dated 03.08.1989 whereas stamp paper was purchased on 02.08.1989 and, therefore, DW-1 had a prior plan in mind to get the GPA executed. This arguments is completely misconceived in view of the fact that execution of GPA is not denied. It is never the case of the plaintiffs that GPA was obtained by fraud or undue influence. In fact, none of the sellers/executors of the GPA in favour of defendant no. 7 had ever challenged this GPA which is still in existence till date in favour of defendant no. 7. Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 25 of 34
31. As far as, letter dated 23.11.1993 allegedly written by father of plaintiffs is concerned, original acknowledgment card has not been filed. It is pertinent to mention here that a stamp of money order has been put on the acknowledgment cards. It is alleged that letter dated 23.11.1993 was received by defendants, however, the acknowledgments have not been proved. Defendants during their evidence have summoned three witnesses from postal authority for showing that acknowledgment cards are not genuine. DW-2 appeared on his own and claims to have received call from someone and, therefore, his testimony cannot believed whereas DW-3 & DW-4 have come to the court pursuant to the summons received from the court and, during examination in chief have categorically stated that stamp on the acknowledgment card bearing money order stamp which is not from the postal office. It was also stated that on AD card, no such stamp is put instead a date of stamp is put. They were cross examined by counsel for plaintiffs, however, nothing material could be taken out and the testimony of DW-3 and DW-4 to the effect that money order stamp cannot be put on AD card could not be shaked. Even otherwise Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 26 of 34 since the original acknowledgment card were not produced, it cannot be believed that letter dated 23.11.1993 was ever served upon defendant no. 7. In any case, even it is presumed that father of the plaintiffs had written a letter dated 23.11.1993 to defendant no. 7 to give back the possession which was served, no action was taken by him for almost five to six years for which he remained alive pursuant of that letter, therefore, this letter becomes immaterial.
32. As as far, judgments Currimbhoy & Co. Ltd (Supra), Ram Niranjan Das & Anr (Supra), Ajmer Singh (Supra), Mahavir Prashad (Supra) relied upon by counsel for plaintiff with respect to maintainability of the suit by a co-owner or co-sharer against unauthorized occupant are concerned, the ratio of these judgments is not at all disputed, however, the defendant in the present suit cannot said to be unauthorized occupant of the suit property in view of the discussion done above and, therefore, these judgments cannot be said to be applicable to the case in hand. Since the property already stood transferred to the defendant nos. 1 to 6 in view of irrevocable GPA in the year 1989 itself when the mother of the plaintiffs i.e. one of the joint owner was alive, therefore, Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 27 of 34 plaintiffs had no right title or interest in the suit property. The aforesaid proposition is applicable only when all the co-shares are at the same footing, however, in the present case defendant no. 9 & 10 being the joint sellers are not claiming any right in the property whereas plaintiffs being the LRs of one of the joint seller are claiming right in the property stating that entire consideration amount was never paid. Hence, issue no. 4, 8, 9 & 10 are decided against the plaintiffs and in favour of the defendants.
33. Issue No. 5 Whether the agreement to sell dated 24.01.1989 stood cancelled as alleged in para 14 of the plaint ? OPP.
34. Onus to prove this issue was upon plaintiff. In view of discussion made in issue nos. 4, 8, 9 & 10, it cannot be said that agreement to sell dated 24.01.1989 stood automatically cancelled on non-payment of amount of Rs. 62,40,000/- as given in agreement to sell. The receipt dated 03.08.1989 bears the signature of all the joint owners at that time clearly finds mention of the fact that the agreement to sell dated 24.01.1989 stood modified to that extent. It also finds mention of execution of irrevocable GPA in favour of defendant no. 7 Sh. U.S. Sitani. Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 28 of 34 Therefore, this issue is decided against the plaintiffs and in favour of the defendants.
35. Issue No. 6 Whether the suit is barred by limitation ? OPD.
36. Onus to prove this issue was upon defendant.
37. The present suit has been filed after nine years of the death of mother of the plaintiffs who was the original owner of the 1/3 rd share in the suit property and after 11 months of the death of their father who was also aware of the transaction between the original owners and the defendants no. 1 to 8. The averment of the counsel for the plaintiff is that since it is a suit for possession and has been filed within 12 years from the date of execution of agreement to sell dated 24.01.1989, therefore it is within the period of limitation, however, on the other hand, Ld counsel for defendant has argued that suit could not have been filed after three years from the date of execution of GPA which has already expired and suit is barred by limitation. Perusal of record reveals that suit has been filed for possession, mesne profits and injunction. Apparently, for suit for possession, the period of limitation is 12 years from the Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 29 of 34 date of cause of action, however, facts of this case are peculiar. Defendants no 1 to 8 had come into the possession of the property which was handed over by the original sellers by executing an agreement to sell dated 24.01.1989 and subsequently an irrevocable GPA duly registered in favour of defendant no. 7 with the Sub Registrar on 03.08.1989 alongwith receipt of even date and was given powers akin to those given to the owner of the property, however, no declaration has been sought for cancellation of that irrevocable GPA dated 03.08.1989 alongwith receipt by which possession of the property was handed over to the defendants, which could have been done only within three years from the date of its execution. An attempt has been made to show that it is a simplicitor suit for possession wherein the limitation period for filing suit is 12 years under Article 65 of the Limitation Act. In the instant case, the limitation was only three years as relief of possession was a consequential relief only and the declaration was the substantive relief and falls under Article 58 of Schedule to the Limitation Act and not under Article 65 of the Limitation Act. As far as judgment Ashok Kumar (Supra) relied upon by Ld Sr. Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 30 of 34 Counsel for plaintiffs is concerned, the facts of that case were that plaintiff purchased the property from the seller through documents namely agreement to sell, power of attorney etc and he was put in the possession of the property. The plaintiff let out the said property on rent to the seller and the seller died and his LRs continued to remain in possession and when the plaintiff filed a suit for possession, the Hon'ble High observed that "Suit for possession based upon title, the relief of declaration of title is implicit in it and the limitation for filing such suit will be 12 years in terms of Article 65 of the Limitation Act." However, the facts of the present case are absolutely different. In the present suit, agreement to sell was entered into between the original owners and the defendants no. 1 to 6 through defendant no. 7 & 8 and thereafter irrevocable registered GPA was executed by owners jointly in favour of defendant no. 7 namely U.S. Sitani coupled with the receipt dated 03.08.1989 by which the possession of the suit property was handed over to the defendants no. 1 to 8. Herein the suit has been filed by LR of one of the joint owners of the suit property who had already sold their share in favour of defendants Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 31 of 34 as already discussed in the preceding paragraphs of other issues and, therefore, by no stretch of imagination, the ratio of this judgment relied upon by counsel for plaintiff can be applied to the present suit. It is not explained as to why the suit was not filed by their mother or father Com. G.D. Krishnan or even by the plaintiffs during their lifetime. It smacks of malafides on the part of the plaintiffs. Hence, this suit is barred by limitation. This issue is decided against the plaintiffs and in favour of the defendants.
38. Issue No. 7 Whether the present suit has not been properly valued for the purposes of court fees ? OPD.
39. Onus to prove this issue was upon defendant. Initially suit was valued at Rs. 12,00,000/- though the sale consideration in the agreement to sell was Rs. 80,70,000/-. Thereafter, the suit was amended and the valuation clause was also amended and suit was valued at Rs. 80,70,000/- and the appropriate advalorem court fee was paid. The defendants have taken a specific stand originally at the time of filing of written statement itself that at the time of filing of the suit, property was worth Rs 4 Crores. During the cross examination of PW-1, she has admitted that from year Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 32 of 34 1989, when the property was sold for Rs. 80,70,000/-, the prices of the property would have appreciated and could not have been same in the year 1999 when the suit was filed. Section 7 (v) of the Court Fee Act specifically provides for payment of advalorem court fee on the market value of the suit property in a suit for possession. It is clear that the suit has not been valued properly at the market rate and advalorem court fee on the market value of the suit property as on the date of institution of the suit does not stand paid. Hence, this issue is decided against the plaintiffs and in favour of the defendants.
40. Issue No. 1. Whether the plaintiffs are entitled to decree of mandatory injunction or in the alternative decree for possession ? OPP.
41. Onus to prove this issue was upon plaintiffs. In view of the findings given in issue no. 6 on limitation and issue nos, 4, 8, 9, 10 decided together, this issue is decided against the plaintiffs and in favour of the defendants.
42. Issue No. 2. Whether the plaintiffs are entitled to decree of mesne profits and if so, at what rate and for what period ? Sunita Sinha & Anr Vs. M/s Leela Builders Pvt Ltd & Ors Page 33 of 34 OPP
43. Onus to prove this issue was upon plaintiffs. In view of the findings given in issue no. 6 on limitation and issue nos, 4, 8, 9, 10 decided together, this issue is decided against the plaintiffs and in favour of the defendants.
44. Issue No. 3. Whether the plaintiffs are entitled to decree of injunction as prayed for ? OPP.
45. Onus to prove this issue was upon plaintiffs. In view of the findings given in issue no. 6 on limitation and issue nos, 4, 8, 9, 10 decided together, this issue is decided against the plaintiffs and in favour of the defendants.
46. Relief.
47. In view of the findings on abovesaid issues, suit of the plaintiffs is dismissed. Decree sheet be prepared accordingly.
48. File be consigned to Record Room after due compliance.
VANDANA Digitally signed by
VANDANA JAIN
JAIN Date: 2019.01.10 16:15:53
+0530
Announced in the open ( VANDANA JAIN)
court on 10.01.2019 Additional District Judge-07/SE
Saket Courts, New Delhi.
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