Delhi District Court
Smt.Maya Devi vs Smt.Kusum Lata Tyagi on 8 September, 2016
1
IN THE COURT OF MS KAVERI BAWEJA
ADDITIONAL DISTRICT JUDGE03 (WEST), THC, DELHI
In the matter of:
CS No.15/15/09 (New No.7/16)
1. Smt.Maya Devi
W/o Sh.Braham Singh
2. Shri Anand Pal
S/o Shri Braham Singh
Both R/o E4, Kunwar Singh Nagar,
Nangloi, Delhi110041
..Plaintiffs
Versus
1. Smt.Kusum Lata Tyagi
W/o Sh.Umesh Tyagi
2. Shri Umesh Tyagi
S/o Not Known
Both R/o A47, Maharani Enclave,
Hastal (Uttam Nagar)
New Delhi ..Defendants
Also at :
House No.4647, 'Sadan',
Gali No.12, Veer Bazar Road,
Gupta Enclave, Vikas Nagar,
Hastal Colony, Delhi110059
AND
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi &
Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr.
2
In the matter of:
CS No.283/14/10 (New No.11952/16)
Smt.Kusum Lata Tyagi
W/o Sh.Umesh Tyagi
R/o 4647, Gali No.12,
Vikas Nagar,
New Delhi. ... Plaintiff
Versus
1. Smt.Maya Devi
W/o Sh.Braham Singh
2. Shri Anand Pal
S/o Shri Braham Singh
Both R/o E4, Kunwar Singh Nagar,
Nangloi, Delhi110041 .... Defendants
Judgment reserved on : 29.08.2016
Judgment pronounced on : 08.09.2016
JUDGMENT
1. By this common judgment, I shall decide the above mentioned two suits, the facts whereof are enumerated as under: Case of Smt.Maya Devi vs. Kusum Lata Tyagi (CS No.15/15/09 New Case No.7/16) :
2. Plaintiff No.2 is the son of Plaintiff No.1 and Defendant Nos.1 & 2 are husband and wife. It is the case of the Plaintiff that they are absolute CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 3 owners and in possession of suit property i.e. Plot bearing No.E4, measuring area 200 sq. yds. out of Khasra No.13/4 and 5 situated in the revenue estate of village Saffipur Ranhola, Delhi area abadi known as Kunwar Singh Nagar, Nangloi, New Delhi by virtue of registered Sale Deed dated 30.01.2005.
3. It is the case of the Plaintiffs that Defendant No.2 gives loan on interest basis. Due to some family problem, the Plaintiffs were in need of money and they contacted Defendant No.2 for taking a loan on 20.10.2007. Defendant No.2 gave a loan of Rs.2 lacs to the Plaintiffs at the interest of 4% per month with the condition to repay the loan in 20 installments. The Plaintiffs deposited the sale deeds of the suit property to the Defendants with the condition to return the same at the time of payment of the last installment of the loan amount. It is further the case of the Plaintiff that the Defendants obtained their signatures on some blank stamp papers and some plain papers to prepare a mortgage deed and call the Defendants to the office of SubRegistrar, Nangloi on 22.10.2007 to execute the mortgage deed. It is further the case of the Plaintiff that they kept on making the payments of mortgaged money with interest regularly. The last payment was made on CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 4 22.06.2009. It is pleaded that the Plaintiffs have paid total sum of Rs.3,60,000/ and have duly paid the loan amount and that the Defendants were maintaining a private diary with regard to the records of the loan, which was some time signed by Defendant No.1 and some time by Defendant No.2 while receiving the installment of the loan amount from the Plaintiffs.
4. At the time of last payment of the loan, when the Plaintiffs asked for the diary, the Defendant No.2's brother namely Sh.Suresh Tyagi torn the diary and put it in the fire at the instance of the Defendants. The Defendants assured the Plaintiffs that the sale deeds of the suit properties are kept in locker and they can take the same after few days.
5. The Plaintiffs visited several times to the premises of the Defendants but the Defendants kept on giving the lame excuses in respect of returning the title deeds. On 05.07.2009, at about 8 PM, the Defendants called the Plaintiffs to their house where Defendant No.2 threatened the Plaintiffs to vacate and ask them to go and leave the suit property otherwise they would be killed.
6. On doubting the Defendant's intention the Plaintiffs checked on CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 5 the S.D.M. Office at Nangloi and found that instead of executing a mortgage deed the Plaintiffs have executed a registered Will and other documents of ownership in respect of the suit property. Thereafter, the Plaintiffs cancelled the said Will.
7. On 19.07.2009, the Defendant No.1 along with 23 bad elements visited the house of the Plaintiffs and threatened them to vacate the plot. Thereafter on 06.08.2009, when the Defendant No.1 was out of station, Defendant No.2 along with his associates again visited the house of the Plaintiffs and abused Plaintiff No.2. The Plaintiffs made a complaint to the Commissioner of Police and SubRegistrar, Nangloi, Delhi.
8. The Plaintiffs were again threatened by the Defendants on 30.09.2009 to vacate the suit property. The Plaintiffs also filed a complaint under Section 156(3) Cr.PC before the concerned court. Thereafter, Plaintiffs filed the present suit with the following prayers:
a) that a decree for redemption be passed directing the Defendants to handover the sale deeds which were kept by them by virtue of mortgaging the suit property and also handover the blank signed stamp papers;
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 6
b) to pass a decree of declaration in favour of the Plaintiffs and against the Defendants thereby declaring Agreement to Sell, GPA, Possession Letter, Affidavit etc. as forged which have been executed by the Defendants in place of the Mortgage Deed.
c) to pass a decree for permanent injunction in favour of the Plaintiffs thereby restraining the Defendants, their associates, assignees, legal heirs, agents, servants, etc. from creating third party interest in respect of the suit property.
9. The Defendants filed their written statement claiming that the suit of the Plaintiffs is a sheer misuse of the process of law and that the Plaintiffs have not approached the court with clean hands. It is further pleaded that the Plaintiffs are in unauthorized occupation of the suit property and are tresspassers therein. It is further the plea of the Defendants that Plaintiffs were known to the Defendants and as they were in need of money, they had approached the answering Defendants for the sale of their combined plot measuring 200 sq. yds. Both the Plaintiffs are owners of 100 sq. yds each and accordingly Defendants agreed to purchase the same vide duly executed documents dated 22.10.2007. It is submitted that the Plaintiffs executed the CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 7 irrevocable Power of Attorney, Agreement to Sell, Possession Letter, Affidavits and General Power of Attorney in favour of the Defendants and also handed over the possession of the suit premises vide possession letter dated 22.10.2007. However, the Plaintiffs requested the Defendants to allow them to stay in the suit premises till alternate arrangement of their residence is made. Keeping in view their relationship, the Defendants agreed for the same and permitted the Plaintiffs to remain in possession of the suit premises after the sale.
10. The Defendants have denied having extended any loan to the Plaintiffs. It is rather submitted that the suit property has been sold to them for a consideration of Rs.12 lacs, which amount has been duly received by the Plaintiffs. The Defendants have also denied having threatened the Plaintiffs at any point of time as alleged and rather claimed that they requested the Plaintiffs several times to vacate the suit premises which they failed to do. It is prayed that the suit of the Plaintiff is nothing but an abuse of process of law and merits dismissal.
11. In their replication, the Plaintiffs denied the submissions made in the written statement while reiterating the contents of the plaint. Following CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 8 issues were framed on the basis of pleadings of the parties on 27.04.2011:
i) Whether the Plaintiffs are entitled to the relief of redemption, as prayed for? OPP
ii) Whether the Plaintiffs are entitled to the relief of declaration, as prayed for? OPP
iii) Whether the Plaintiffs are entitled to relief of permanent injunction, as prayed for? OPP
iv) Relief.
12. In order to establish their case, Plaintiffs Smt.Maya Devi deposed as PW3 and led her evidence by way of her affidavit Ex.P3. Plaintiff No.2 Sh.Anand Pal also stepped into the witness box as PW4 and tendered his evidence by way of affidavit as Ex.P4. Besides this, the Plaintiffs also examined the Ahlmad from the court of the concerned MM as PW1, who produced the original record pertaining to the application under Section 156(3) Cr.PC filed by the Plaintiffs against Defendants on 17.09.2009. PW2 HC Naresh Chand from PS Nangloi deposed that he has not brought the summoned record since there is no record of any complaint made on 09.09.2009 as per Daily Register. PW5, 6 & 7 are the neighbours of the Plaintiffs who have also been examined by the Plaintiffs in support of their case.
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 9
13. Defendant Umesh Tyagi stepped into witness box as DW1 and led his evidence by way of his affidavit Ex.DW1/A, whereas Defendant Kusum Lata Tyagi led her evidence by way of affidavit as Ex.DW2/A. Sh.Kuldeep Singh and Sh.Suresh Tyagi were also examined as DW3 & DW4 respectively.
Case of Kusum Lata Tyagi vs. Smt.Maya Devi (CS No.283/14/10 New Case No.11952/16) :
14. The aforesaid Kusum Lata Tyagi later on filed a suit bearing No.CS No.283/14/10 against Smt.Maya Devi & Sh.Anand Pal on 21.10.2010 praying inter alia that a decree for possession in respect of the aforesaid property be passed in her favour and against the Defendants. She further prayed that a decree of permanent injunction be also passed in her favour restraining the Defendants from handing over the possession of the suit property to any other person.
15. Smt.Kusum Lata Tyagi stated that the Defendants who were the owners of the suit property approached her and her husband for the sale of the same as they were in need of money and accordingly she agreed to purchase the same for a sum of Rs.12 lacs. On 22.10.2007, the Defendants executed all the necessary documents like irrevocable Power of Attorney, CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 10 Agreement to Sell, Affidavits, GPA and Receipt of total consideration amount and the possession of the suit property was handed over to her vide duly executed possession letter by the Defendants. She applied for registration of the irrevocable Power of Attorney before the SubRegistrar and also paid stamp duty thereof on 19.09.2009.
16. It is her case that the Defendants had requested her and her husband praying them to stay in the suit property till alternate arrangements for their residence can be made by them. Keeping in view their relations, she and her husband agreed for some time only. The Defendants however refused to vacate the suit property and handover the peaceful and vacant possession to her after her repeated requests and reminders and thus are in unauthorized and illegal occupation of the suit property.
17. The Plaintiff also lodged a complaint with the police on 16.10.2009 against the Defendants and also got issued a legal notice dated 28.09.2010 requiring the Defendants to handover the vacant and peaceful possession of the suit property to them, but to no avail. The Plaintiff thereafter filed the present suit for possession and permanent injunction against the Defendants, as aforesaid.
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 11
18. In their written statements, the Defendants i.e. Maya Devi & Sh.Anand Pal denied having sold the suit property at any point of time to the Plaintiff. They also claimed that they have already filed suit for redemption and declaration and permanent injunction against the Plaintiff in view of the fact that they had only taken loan of Rs.2 lacs from Smt.Kusum Lata Tyagi on interest basis at the rate of 4% per month and had already repaid the entire loan amount along with interest. It is further their stand that the Plaintiff had obtained their signatures fraudulently on some blank papers stating that it was required for the purpose of preparation of mortgage deed. The original title deed had also been taken away by the Plaintiff deceitfully.
19. Following issues were framed in CS No.283/14 (New No.11952/16) vide order dated 01.06.2011: "1. Whether suit is not maintainable in view of the pendency of the other suits between the parties stated to be pending before Sh.Amit Kumar, learned Senior Civil Judge (West) Suit No.185/09? OPP
2. Whether agreement for sale and purchase dated 22.10.2007 was executed between the Plaintiff and the Defendant? OPP CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 12
3. Whether pursuant to the said agreement, possession has been handed over to the Plaintiff at that stage of the agreement? OPD
4. Whether Plaintiff has allowed the Defendant to stay on as a licencee by way of temporary arrangement till alternative arrangement on the request of defendant and whether defendant had refused to vacate the premises bearing No.E4, measuring 200 Sq.Yds out of Khasra No.13/4 and 5 situated in the village Saffipur Ranhola, Delhi. OPP
5. Whether Defendant had approached the Plaintiff for a loan and not for sale and purchase of property bearing No. E4, measuring 200 Sq.Yds out of Khasra No.13/4 and 5 situated in the village Saffipur Ranhola, Delhi. OPD
6. Whether sale and purchase agreement dated 22.10.2007 is a forged and fabricated document? OPD
7. Whether Plaintiff is entitled to the relief prayed for?
8. Relief"
20. In order to prove her case, the Plaintiff examined herself as PW1. Her husband Sh.Umesh Tyagi stepped into witness box as PW2. Smt. Maya Devi deposed as DW1 by way of her affidavit Ex.DW1/1. Sh.Anand Pal deposed as DW2.
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 13
21. It is pertinent to mention at this juncture that during the course of proceedings an order was passed by the learned District Judge (West), Tis Hazari Courts, Delhi on 03.02.2015 whereby the transfer petition filed by Smt.Maya Devi was allowed and the proceedings of Suit No.185/2009 pending in the court of Senior Civil Judge (West) titled as "Kusum Lata Tyagi vs. Maya Devi & Anr." were withdrawn from the said court and assigned to this court, where proceedings of Suit No.462/2012 were already pending, with the observations that in the facts and circumstances of the case, it would be expedient in the interest of justice to avoid conflicting verdicts in relation to the same issues, that both the cases be tried by a single Court.
22. I have heard detailed arguments advanced by the respective counsels for the parties and also gone through the evidence on record. Since the issues in both the cases are interconnected and interrelated, it would be appropriate and also necessary to take up the issues framed in both the cases simultaneously for just and effective decision of both the cases and in order to avoid conflicting verdicts.
Issues Nos.2,3,4 & 5 of Suit titled as Kusum Lata Tyagi vs. Maya Devi (CS No.283/14 New Case No.11952/16) CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 14
23. In order to prove the execution of the irrevocable Power of Attorney, Agreement to Sell, Affidavits, GPA, Receipts dated 22.10.2007, Smt.Kusum Lata Tyagi exhibited the copies of the said documents as Ex.PW1/2 (Colly) by way of her affidavit Ex.PW1/A.
24. She deposed that the Defendants who were known to her family were owners of the suit property as shown in red colour in the site plan Ex.PW1/1. They approached her and and her husband for the sale of suit property that they were in need of money and she agreed to purchase the same for a total consideration of Rs.12 lacs and the Defendants executed document Ex.PW1/2 (Colly) at the time of execution of documents. The Defendants requested her and her husband to stay in the suit premises till the alternate arrangement is made by them. Keeping in view their relations, she and her husband agreed to permit them to live in the suit premises for some time.
25. It is contended by learned counsel for the Defendants in Suit No.283/14 that the documents in question are not registered and are hence not admissible under Section 49 of the Registration Act. It is further contended that as per Section 54 of Transfer of Property Act, there is no sale CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 15 of the suit property by the Defendants to the Plaintiffs. It is stated that admittedly no sale deed has been executed by the Defendants in favour of the Plaintiffs and the unregistered GPA, Agreement to Sell etc. do not constitute a valid transfer of property. In this regard, learned counsel for the Defendant had placed reliance upon the judgment of Hon'ble Apex Court titled as Suraj Lamp vs. State of Haryana decided in SLP No.13917/09 decided on 11.10.2011, wherein it has been held as under: "...It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement to sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 16
immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
26. It is further contended that it is the claim of the Plaintiff (Defendants in CS No.15/15) that she and her husband permitted the Defendants to stay in the suit premises till alternate arrangement is made by them keeping in view the relationship between the parties. It is contended that admittedly the Defendants were indeed suppliers of milk and Plaintiff used to purchase milk from them. Apart from this, there is no evidence on record to show any other relationship between the parties.
27. In the course of arguments my attention was also drawn to the crossexamination of PW1 recorded on 31.10.2011 wherein PW1/Plaintiff admitted that "I never got possession of the suit property." In the course of same crossexamination, PW1 also deposed that a Bayana Receipt has also been executed between the parties. She also stated that she do not know whether the payments had been made in cash or by cheque. She also stated that she does not know the name of the witness who was present at the time of payment or earnest money or at the time of purchase of stamp papers. CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 17 She also stated that she does not know anything regarding the preparation of any document out of Ex.PW1/2 (Colly).
28. Learned counsel for Defendants also pointed out that the alleged consideration amount of Rs.12 lacs does not find mention anywhere in the documents Ex.PW1/2 (Colly). Rather, in the Agreement to Sell allegedly executed on 22.10.2007 a sum of Rs.2 lacs is mentioned as the consideration amount instead of Rs.12 lacs, as claimed by the Plaintiff. It is further pointed out that the receipt dated 22.10.2007 on the contrary mentions the sum of Rs.12 lacs, which is inconsistent with the Agreement to Sell filed by the Plaintiffs.
29. Learned counsel for the Defendant further pointed out that the possession letter relied upon by the Plaintiff is also rendered in consequential in view of the own admission of the Plaintiff in her cross examination that she never received possession of the suit property.
30. It is also pertinent to note that admittedly the second page of Agreement of Sell was found bearing the signatures of PW1 Smt.Kusum Lata Tyagi. However, in the photocopy thereof, her signatures were not appearing on the second page. During the course of recording of her cross CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 18 examination on 05.03.2013, the Plaintiff placed on record the copy of Agreement to Sell containing her signatures on the second page at point 'A'. It was submitted by learned counsel for the Defendants that this clearly indicates that after 30.11.2011, the Plaintiffs signed the Agreement to Sell and fabricated the same, as is apparent from the copy of Agreement to Sell placed on record by her on 05.03.2013 Ex.PW1/2X.
31. On the other hand, Plaintiff Smt.Kusum Lata Tyagi relied upon the testimonies of the witnesses examined by Smt.Kusum Lata Tyagi as DW1 & DW2 in CS No.15/15 and deposed that their testimonies establish that both the witnesses have categorically proved the execution of the sale documents and also proved the Bayana Agreement as Mark A and Mark B and the receipt of earnest money as Mark C and Mark D and have also deposed that the entire consideration in the suit property was Rs.12 lacs which was duly paid. PW2 Smt.Kusum Lata Tyagi also clarified in her crossexamination in CS No.15/15 that at the time of execution of the documents, the Plaintiff had requested to show a lesser amount in the sale documents. However, the receipt was executed for the entire consideration amount.
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 19
32. Sh.Kuldeep and Sh.Suresh Tyagi were also examined as DW3 & DW4 respectively. DW3, who is the son of Smt.Maya Devi deposed that he received a cheque for Rs.50,000/ from Sh.Umesh Tyagi on account of supply of milk.
33. A bare perusal of the affidavit of DW1 Sh.Umesh Tyagi in CS No.15/15 would reveal that Sh.Umesh Tyagi for the first time deposed about certain facts which are not only beyond his pleadings in both the above mentioned suit, but are also giving a new twist to the entire facts and circumstances of the case. It is for the first time in his affidavit Ex.DW1/A that DW1 Sh.Umesh Tyagi deposed that two Bayana Agreements dated 08.08.2006 for Rs.3 lacs were executed by the Plaintiffs i.e. Maya Devi & Anrs. by putting their thumb impressions/signatures in his favour. He also deposed that at the time of execution of the aforesaid Bayana Agreements and receipts, all the original documents of the aforesaid properties were handed over to him. The copies of the said Bayana Agreements and receipts dated 08.08.2006 are Mark A to Mark D respectively. DW1 Sh.Umesh Tyagi also deposed that as per the aforesaid documents, the balance amount was to be paid by 25.10.2007 and the Plaintiffs executed all the necessary CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 20 documents like irrevocable Power of Attorney, Agreement to Sell etc. along with Receipt for a total consideration amount i.e. Rs.12 lacs.
34. It is note worthy that the said alleged Agreement to Sell/Bayana Agreement Mark A to Mark D both dated 08.08.2006 appeared to have been executed in favour Sh.Umesh Tyagi. The Receipts Mark C & Mark D are also stated to be for Rs.3 lacs each stated to have been received in cash in advance from Sh.Umesh Tyagi. In his crossexamination DW1 Sh.Umesh Tyagi stated that he cannot recollect whether he had mentioned about the payment of Bayana in his written statement. It would be apparent on perusing the written statement that there is no mention of payment of any Bayana by the Plaintiffs on 08.08.2006, as deposed by DW1 for the first time by way of his affidavit Ex.DW1/1. Moreover, it has never been the case of the Defendants that Rs.6 lacs were paid as earnest money (Bayana) on 08.08.2006 and the remaining amount was to be paid by 25.10.2007. DW1 admitted in his crossexamination that "It is correct that I did not state anything about the execution of bayana receipt by the plaintiffs on my own but had stated so when said execution of bayana receipt was enquired by me in the crossexamination in the civil suit No.462/12." CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 21
35. DW1 further deposed that at the time of execution of the said documents and payment of Rs.6 lacs to the Plaintiffs, the previous chain of the suit property was obtained by him. Surprisingly, he also deposed for the first time that in the course of trial that out of said Rs.6 lacs which were given at the time of bayana agreement, a sum of Rs.5.5 lacs were given in cash and for Rs.50,000/ a self cheque was given to the Plaintiffs in the name of Kuldeep.
36. Said Kuldeep, who is the son of the Plaintiff Smt.Maya Devi was also examined by the Defendants as DW3. He admitted that Sh.Umesh Tyagi had handed over the cheque dated 02.08.2006 for Rs.50,000/ to him. A copy of the said cheque is Ex.DW3/1. In the same breath, however DW 3 Kuldeep deposed that the said cheque was issued by him towards the payment due qua the bill of milk and out of Rs.50,000/, Rs.30,000/ was towards the outstanding payment for three months and the balance amount was given as advance for supply of milk.
37. DW1 Sh.Umesh Tyagi further admitted in his crossexamination that in the Agreement to Sell, the amount of sale shown as Rs.2 lacs. Though, he voluntarily deposed that he did so at the request of Plaintiff CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 22 Sh.Anand Pal for the purpose of tax evasion. He further admitted that the consolidated receipt of Rs.12 lacs was obtained from the Plaintiff and no separate receipt was taken for Rs.6 lacs. He further deposed that no physical possession of the suit property was obtained. Interestingly, in his cross examination, both DW1 & DW2 Smt.Kusum Lata admitted that there was no relation between them and the Plaintiffs except that they used to sell milk in their locality and that they used to buy milk from him.
38. DW4 Sh.Suresh Tyagi though deposed that he had signed the Agreement to Sell Mark A & Mark B as a witness and also signed as attesting witness on the documents dated 22.10.2007 Ex.DW2/2 (Colly). However, it is apparent on considering the entire evidence on record that the documents Mark A to Mark D have not been duly proved by the Defendants.
39. As stated hereinabove, the claim with regard to the payment of bayana on 08.08.2006 in favour of Sh.Umesh Tyagi is a plea which is not only inconsistent with the entire case of the Defendants in the Suit No.15/15 and Plaintiffs in the Suit No.283/14, but is also clearly beyond their pleadings in both the cases. The claim of the Defendants that out of the said CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 23 6 lacs Rs.5.5 lacs were paid in cash and Rs.50,000/ by way of cheque also stands demolished by way of deposition of DW3 Kuldeep, who testified that the said payment on account of milk which the Defendants used to purchase from him.
40. It thus appears on consolidated consideration of the entire evidence on record that the Defendants Sh.Umesh Tyagi and Smt.Kusum Lata Tyagi, who are also Plaintiffs in CS No.283/14 have failed to establish their stand that any agreement to sell was entered into between them and the Plaintiff on 22.10.2007. Their inconsistent and beyond pleadings stand that for this purpose the bayana had been paid by them to the tune of Rs.6 lacs on 08.08.2006 also creates a fatal dent in their case. The inconsistent pleas raised for the first time by the Defendants by way of their affidavits for the first time which are also beyond their pleadings cannot, to my mind, be accepted as proof of their claim regarding existence of any agreement to sell between them and the Plaintiffs in respect of suit property.
41. On the other hand, it has been the case of Defendants in CS No.283/14 and Plaintiffs in CS No.15/15 that they had obtained a loan of Rs.2 lacs from the Defendants in CS No.15/15 with interest which were CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 24 repayable along with interest @ 4% per month. It is also their plea that at the time of obtaining the loan, the Defendants had obtained the original documents of the suit property from them and had also obtained their signatures on certain documents on the pretext of getting prepared a mortgage deed. It is also not in dispute that they went to the office of Sub Registrar on 22.10.2007. Though, it is the plea of the Plaintiffs that the said visit was for the purpose of registration of the Mortgage Deed as delivered to them by the Defendants. The defendants inconsistently have claimed that they paid the entire consideration of sale deed/agreement to sell. Defendants also failed to produce the original challan regarding alleged payment of stamp duty and only filed upon the photocopy which is inadmissible in evidence.
42. The aforesaid issues are decided against the Defendants in Suit No.15/15 in favour of Defendants in CS No.283/14/10. As far as Issue No. 6 of CS No.283/14/10 is concerned, the same are consequently decided against the Plaintiffs therein. Further, in absence of any ground to hold that the suit is not maintainable, issue No.1 is also decided accordingly.
43. In so far as Issues Nos. (i), (ii), (iii) in Suit No.15/15/09 (New CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 25 Case No.07/16) are concerned, it is held hereinabove that the claim of the Defendants regarding the execution of the documents dated 22.10.2007 has been held to be unsustainable. The Plaintiffs, on the other hand, have claimed that they had obtained a loan of Rs.2 lacs which has been repaid by them entirely. They had also approached the Defendants for return of their original documents but the Defendants tore up the diary in which they used to maintain the record of payment of installments of the loan and also burn the same. Thus, no record or proof with regard to repayment of the aforesaid loan has been brought on record by the Plaintiffs in Suit No.15/15/09. The admitted fact however remains that the original documents of the suit property are still in custody of the Defendants. Admittedly, no action was taken by the Defendants against the Plaintiffs till filing of the suit. Moreover, Suit No.283/14 was filed subsequent to Suit No.15/15. In these circumstances, I find force in the submissions of learned counsel for the Plaintiffs.
44. From the evidence led on record, the Plaintiffs in Suit No.15/15, to my mind, have failed to conclusively establish that they repaid the loan of Rs.2 lacs along with interest, as claimed. In absence of any evidence with CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 26 regard to rapayment of the said loan, the Plaintiffs in CS No.15/15 are directed to pay the admitted amount of Rs.2 Lacs, however along with interest @ 6% per annum which, to my mind, is reasonable, considering the totality of facts and circumstances of this case, within a period of six months, for redemption of the admitted loan and for being entitled to receive back their original documents of the suit property. The Defendants in CS No.15/15/09 and Plaintiffs in CS No.283/14/10 are directed to handover the original documents pertaining to the suit property to the Plaintiffs immediately upon tender and receipt of aforesaid amount.
45. The Suit No.283/14/10 is accordingly dismissed. Plaintiffs in Suit No.15/15/09 are held entitled for receiving back original documents of the suit property from the Defendants, subject to their tendering/repaying Rs.2 lacs with interest @ 6% per annum w.e.f. 22.10.2007 till realization to the Defendants. The documents viz., Agreement to Sell, G.P.A., Possession Letter and Affidavit dated 22.10.2007 are hereby declared in consequential. Further, Defendants (in Suit No.15/15/09) are restrained by a decree of permanent injunction from interfering in the peaceful possession of the Plaintiffs in respect of the suit premises i.e. plot bearing No.E4, measuring CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 27 area 200 sq. yds. out of Khasra No.13/4 and 5 situated in the revenue estate of village Saffipur Ranhola, Delhi area abadi known as Kunwar Singh Nagar, Nangloi, New Delhi. Parties are left to bear their respective costs.
46. Ordered accordingly. Decree Sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in open court today on 08.09.2016 (Kaveri Baweja) Additional District Judge03 (West) Tis Hazari Courts: Delhi.
CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr. 28
CS No.15/15/09 (New No.7/16) & CS No.283/14/10 (New No.11952/16) Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi Anr.
AND Smt.Kusum Lata vs. Smt.Maya Devi & Anr.
08.09.2016 Present : Counsel for the parties.
Vide separate common judgment of even date the Suit No.283/14/10 is accordingly dismissed.
Plaintiffs in Suit No.15/15/09 are held entitled for receiving back original documents of the suit property from the Defendants, subject to their tendering/repaying Rs.2 lacs with interest @ 6% per annum w.e.f. 22.10.2007 till realization to the Defendants. The documents viz., Agreement to Sell, G.P.A., Possession Letter and Affidavit dated 22.10.2007 are hereby declared in consequential. Further, Defendants (in Suit No.15/15/09) are restrained by a decree of permanent injunction from interfering in the peaceful possession of the Plaintiffs in respect of the suit premises i.e. plot bearing No.E4, measuring area 200 sq. yds. out of Khasra No.13/4 and 5 situated in the revenue estate of village Saffipur Ranhola, Delhi area abadi known as Kunwar Singh Nagar, Nangloi, New Delhi.
Parties are left to bear their respective costs. Decree Sheets be prepared accordingly. As judgment in both the suits are common, Ahlmad is directed to place the copy of this judgment in case file being CS No.283/14/10 (New Case No.11952/16) titled as Smt.Kusum Lata Tyagi vs. Smt.Maya Devi & Anr. also.
Both file be consigned to record room.
(Kaveri Baweja) Additional District Judge03 (West) Tis Hazari Courts: Delhi CS No.15/15/09 (New No.7/16) & Maya Devi & Anr. vs. Smt.Kusum Lata Tyagi & Anr. & CS No.283/14/10 (New No.11952/16) Smt.Kusum Lata vs. Smt.Maya Devi & Anr.