Delhi District Court
Umesh Jain vs Sikhar Chand Jain on 30 March, 2024
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
Civil Suit No.6979/2016
DLST010002312011
DLST-01-000231-2011
1. Sh. Umesh Jain,
S/o late Sh. Jag Mandar Dass.
2. Smt. Sashi Jain,
W/o Sh. Umesh Jain.
Both R/o House No.534-536,
Ward No.5, Near Bangla Doodh wali Gali,
Mehrauli, New Delhi-110030. ..... Plaintiffs.
VERSUS
Sh. Sikhar Chand Jain,
S/o Late Sh. K M Jain,
R/o H. No183, Ward No.3,
Parshavnath Apartments,
Opposite Vikas Hospital,
Mehrauli, New Delhi-110030. ..... Defendant.
Date of institution : 18.03.2011.
Date for reserving judgment : 07.03.2024.
Date of pronouncement of judgment : 30.03.2024.
Suit for Permanent and Mandatory Injunction, Possession and
Specific Performance.
AND
Civil Suit No.6191/2016
DLST010000722011
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND
CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 1 of 37
DLST-01-000072-2011
Sh. Sikhar Chand Jain,
S/o Late Sh. K M Jain,
R/o H. No183, Ward No.3,
Parshavnath Apartments,
Opposite Vikas Hospital,
Mehrauli, New Delhi-110030. .....Plaintiff.
VERSUS
1. Sh. Umesh Jain,
S/o late Sh. Jag Mandar Dass.
2. Smt. Sashi Jain,
W/o Sh. Umesh Jain.
Both R/o House No.534-536,
Ward No.5, Near Bangla Doodh wali Gali,
Mehrauli, New Delhi-110030. ..... Defendants.
Date of institution : 08.04.2011.
Date for reserving judgment : 07.03.2024.
Date of pronouncement of judgment : 30.03.2024.
Suit for possession of immovable property, permanent and
mandatory injunction and recovery of Rs.73,900/-.
JUDGMENT
1. Brief facts as stated in the plaint are that the plaintiffs are residing at House No.534-536, Ward No.5, Near Bangla Doodh wali Gali, Mehrauli, New Delhi-110030 in 1 ½ storey (hereinafter referred as 'the suit property") built upto second floor. It is stated that defendant CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 2 of 37 is the uncle of plaintiff and the defendant had sold the suit property measuring 20 square yards of property no.536 comprising of passage, lobby, bathroom, kitchen, one room and a shop and a room on the second floor, the left side ground floor, first floor and second floor. It is stated that defendant has left the suit property on 01.10.2008 with his whole family and thereafter desired to sell the suit property to the plaintiff through Manohar contractor and Smt. Alka, residing in part of premises no.535. Defendant received Rs.4,50,000/- in presence of Smt. Kanti Devi Jain (Buaji), Sh. D. C. Jain and Smt. Shella Jain and other family members of plaintiffs as advance towards the total consideration of Rs.8,50,000/- on 14.10.2009. Defendant handed over the physical vacant possession with lock & key of premises number 536 built up to double storey measuring 20 square yards and first floor and roof rights of the property no.534. Thereafter, plaintiff spent huge sum towards the renovation of the suit property as it was in dilapidated condition. After completion of renovation, suit premises was inaugurated on 25.11.2009 and thereafter defendant received the balance payment of Rs.4,00,000/- in presence of Sh. Prem Kumar, Premi, Chander, Sumer Chand Jain, Anuj Jain, Santosh and Sanjani on 13.11.2010. It was further stated by plaintiffs that sale deed could not be executed as the defendant was not well and since it was a transaction between the family members so there was no question of doubt, but thereafter greed prevailed upon the defendant and he demanded rupees two Lacs more in lieu of the execution of the sale deed.
2. It was further stated that defendant had already sold his rights of the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 3 of 37 part of the property bearing no.536 but due to vested interest, lodged false complaints in the police station and leveled false allegations to extort further money from the plaintiffs. Thereafter, plaintiffs after many negotiations and with the intervention of relatives and neighbours, convinced the defendant to execute a sale deed. The defendant agreed to executed the sale deed in favour of the plaintiffs upon a further payment of Rs.2,00,000/-. Defendant got prepared the rough draft of sale deed and gave the copy of the same to the plaintiffs. Plaintiffs purchased the stamp papers and got prepared the bank draft of Rs.1,50,000/- in March, 2010 but that time defendant denied to do the needful and the bank draft had to be cancelled. Thereafter, again with the intervention of the respectable persons of the family and community, defendant agreed to execute the sale deed. Then plaintiffs again got prepared the demand draft of Rs.2,00,000/- in November, 2010 but again defendant refused to do the needful due to vested interest and hence present suit was filed by the plaintiffs for permanent and mandatory injunction, possession and specific performance.
3. Written Statement: In his written statement defendant has denied having entered into any agreement to sell or executing any sale deed in respect of the suit property with the plaintiffs. Defendant further stated that plaintiffs were not entitled to any right, title or interest in the suit property nor they could claim any relief against the defendant. The suit of the plaintiffs was not maintainable hence it was liable to be dismissed. It was further stated that defendant never agreed to sell the suit property to the plaintiffs and defendant never CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 4 of 37 gave the possession of the suit property to plaintiffs. It was further stated that plaintiffs were the trespassers in the suit property and had filed a frivolous suit against the defendant and concealed and suppressed the material facts from the court.
4. It was further stated that the suit property was the ancestral property and was inherited and owned by Sh. Khazanchi Mal Jain. Sh. Khazanchi Mal Jain had married twice during his lifetime. A son Sh. Jagmander Dass was born from the first marriage of Sh. Khazanchi Mal Jain. The second marriage of Sh. Khazanchi Mal Jain was solemnized with Smt. Gulkandi Devi Jain. A son Sh. Shikhar Chand Jain (defendant herein) and two daughters were born from the second marriage of Sh. Khazanchi Mal Jain. Sh. Khazanchi Mal Jain died on 18.06.1943. He was survived by his son Sh. Jagmander Dass from his first marriage and another son (defendant) and two daughters from his second marriage and the second wife Smt. Gulkandi Devi Jain. The daughters were married with the efforts of defendant and his mother and huge amount was spent in their marriage and they laid no claim in the estate of Sh. Khazanchi Mal Jain.
5. Hence, Sh. Jagmander Dass Jain, the defendant and Smt. Gulkandi Devi Jain were the actual legal heirs and representatives of Sh. Khazanchi Mal Jain after his death. After his death, the entire property bearing no.534 and 536 near Bangla Doodhwali Gali, Mehrauli devolved upon his two sons and wife as mentioned above. It was further stated that with the consent of the parties, the entire properties were mutated in the name of Smt. Gulkandi Devi Jain in CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 5 of 37 the records of MCD etc. in the year 1963. In the year 1973, an oral family partition took place between Sh. Jagmander Dass Jain, the defendant and Smt. Gulkandi Devi Jain whereby properties nos.534 and 536 were partitioned.
6. It was further stated that the left side portion of the ground floor of the property no.536 and some portion of the right side came under the share of Sh. Jagmander Dass Jain as shown in red colour in the site plan. The right side portion of the ground floor of property no.536 came under the share of the defendant as shown in green colour in the site plan. The yellow portion was left as common passage.
7. It was further stated that the property no.534 also came under the share of defendant and it was occupied by tenants. Smt. Gulkandi did not take her separate share but merged her share with the defendant as she was living with him. In the year 1973, property no.536 consisted of ground floor and comprised of two big rooms in the back portion, adjoining courtyard, one kitchen and covered verandah with passage in front portion. Property no.534 consisted of a shop on the ground floor under the tenancy of one Sh. Durga Prasad and Sh. Jai Prakash and an improvised room on first floor. In April, 1973, an oral family settlement took place vide which a partition wall was constructed and the left side portion on the ground floor of property no.536 and some portion of right side covered verandah came in the share of Jagmander Dass Jain and right side portion of the ground floor of property no.536 came in the share of the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 6 of 37 defendant.
8. In 1976-77 defendant redesigned and renovated his ground floor portion in property no.536 and built first floor on it. He also built a room with sheets roof on second floor upon his first floor portion in the year 1993. In the year 1982 defendant also built up mezzanine and first floor on his portion in suit property 534.
9. It is further stated that Sh. Jagmander Dass Jain also redesigned and renovated his portion of the property no.536 in the year 1974. In the year 1976-77 he also build first floor upon his share of the ground floor in property no.536.
10. Sh. Jagmander Dass Jain died in the year 1996 and his rights devolved upon his sons i.e. plaintiff no.1, Sh. Vijay Kumar Jain and Sh. Ashok Kumar Jain. Thereafter in the year 1999, his sons built the entire second floor portion, upon their first floor portion.
11. Around October, 2009, defendant had shifted to a new premises bearing no.183, Ward no.3, Parshav Nath Apartments, Mehrauli, New Delhi and locked the aforesaid property and left his articles there. When on 08.11.2010 the defendant visited his aforesaid property and was shocked to find that plaintiffs had illegally broken the locks of the first floor of the property bearing no.534 and first floor of property no.536 and had illegally trespassed upon the same.
12. It was further stated that plaintiffs also threatened the defendant that CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 7 of 37 they would break open the locks of other portions of the defendant also. The defendant had no option but to hastily report the matter to the police on 08.11.2010. The defendant vide notice dated 07.02.2011 called upon the plaintiffs to immediately vacate the first floor portion of the properties no.534 and 536. All the allegations in the plaint were denied or stated to be false.
13. Plaintiffs filed replication to the written statement of defendant controverting the stand taken by him in his written statement and reiterated the facts of their plaint.
14. From the pleadings of the parties, following common issues were framed on 19.12.2012 in suit no.6979/2016 as well as in suit no.6191/2016:
1. Whether the suit of the plaintiff is not maintainable? OPD.
2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for in clause A of his plaint? OPP.
3. Whether the defendants are liable for eviction with respect to ground floor of premises No.536, Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi - 30.
4. Whether the plaintiff is entitled to the relief of Specific Performance in respect of suit property bearing No.536, two storey building measuring 20 sq. yards., Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi? OPP.
5. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for in prayer clause C of his plaint? OPP.
6.Whether the plaintiff in suit No.386/11 is entitled to the relief of possession of suit premises, as prayed for in clause no. (a) of his suit?
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 8 of 37 OPP.
7. Whether the plaintiff in suit No.386/11 is entitled for the reliefs of permanent injunction of suit premises, as prayed for in prayer clause
(b), (c), (d), (e), (f) and (g) of the said suit? OPP.
8. Whether the plaintiff in suit No.386/11 is entitled for the relief of mandatory injunction and recovery of Rs.73,900/-, as prayed for in prayer clause (h) and (i) respectively of the said suit?OPP.
9. Whether the plaintiff in suit No.386/2011 is entitled to the relief of future mesne profits with interest, as prayed for in prayer clause (j) of the said suit? OPP.
10. Relief.
15.Plaintiffs' Evidence: Common evidence of both the suits was recorded in suit no.6979/2016. During the plaintiffs' evidence, plaintiffs examined two witnesses. Smt. Shashi Jain (plaintiff no.2) was examined as PW-1 and she tendered her affidavit in evidence as Ex.PW1/A. She relied upon the following documents:
• Ex.PW1/1 is the site plan.
• Ex.PW1/2 is the agreement for sale-cum-Bayana Receipt. • Ex.PW1/3 (colly) is expenses incurred by plaintiffs. • Mark -X are 24 photographs.
• Ex.PW1/5 is envelope containing the name and address of photographer.
• Mark -Y is draft of sale deed.
• Mark-Z is statement of account.
• Mark-A and Mark-B are copies of two bank drafts. • Mark-C is copy of refund voucher.
• Ex.PW1/8 to Ex.PW1/10 are police complaints dated 25.04.2011, CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 9 of 37 21.08.2011 and 27.08.2011.
• Mark-Z1 is copy of the complaint addressed to Commissioner of Delhi.
• Ex.PW1/12 is complaint dated 04.01.2011.
• Ex.PW1/15 is complaint dated 25/29.06.2011.
• Ex.PW1/17 is affidavit dated 28.01.2012 • Mark-Z2 are copies of four fee receipts.
• Ex.PW1/19 are three RTI reports.
16. Plaintiffs examined Sh. Chandan Kumar as PW-2 who tendered his affidavit in evidence as Ex.PW2/A. He stated that he was a local resident of Mehrauli and both plaintiffs and defendant were known to him. He corroborated the plaintiff and the facts of the plaint in his evidentiary affidavit.
17. No other witness was examined by plaintiff in support of his case and plaintiff's evidence was closed.
18.Defendant's Evidence: Defendant Shikhar Chand Jain examined himself as DW-1 and tendered his affidavit in evidence as Ex.DW1/1. He relied upon following documents:
1. Ex.DW1/1 (OSR) is copy of letter dated 15.07.1963 of Zonal Assistant, MCD. (objected to mode of proof).
2. Ex.DW1/2 (OSR) is copy of letter dated 06.08.1963 of Zonal Assistant, MCD. (objected to mode of proof).
3. Ex.DW1/3 (OSR) is copy of letter dated 28.12.1963 of House Tax Department.
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 10 of 37
4. Ex.DW1/4 (OSR) (colly 6 pages) is copy of House Tax Notice dated 13.11.1975 alongwith 4 house tax receipts. (First two pages i.e. house tax notice at page no.31 and 32 are objected to).
5. Ex.DW1/5 (colly) are 15 original electricity bills from page nos.37 to 47 and page no.53 to 56.
6. Ex.DW1/6 (colly) are 13 original water bills.
7. Ex.DW1/7 (OSR) (colly) is copy demand letter from MTNL dated 12.02.1985, copy of letter dated 24.03.1991 of MTNL and bill of MTNL dated 17.09.1991.
8. Ex.DW1/8 (OSR) is copy of birth certificate of my son namely Rupesh Jain.
9. Ex.DW1/9 (OSR) is copy of delivery voucher date 15.04.1974.
10. Ex.DW1/10 (OSR) is receipt of gas delivery dated 15.04.1974.
11. Ex.DW1/11 (OSR) is copy of subscription voucher dated 15.04.1974.
12. Ex.DW1/12 (OSR) is copy of receipt dated 14.02.1977.
13. Ex.DW1/13 (OSR) is copy of bill of Bajaj scooter dated 25.02.1977.
14. Ex.DW1/14 (OSR) is copy of gas transfer connection dated 26.07.1976.
15. Ex.DW1/15 (OSR) is copy of my Voter ID card.
16. Ex.DW1/16 (OSR) is copy of my passbook of PNB, branch Sarvodaya Enclave issued on 04.12.2010.
17. Ex.DW1/17 (OSR) (colly) are copies of 18 house tax receipts of property no.534, Doodhwali Gali, Mehrauli, New Delhi.
18. Ex.DW1/18 (OSR) is copy of Surrender Letter of ground floor CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 11 of 37 shop in said property no.534 dated 26.12.1980.
19. Ex.DW1/19 (OSR) is copy of licence dated 21.09.1983 of floor mill at said property no.534.
20. Ex.DW1/20 (OSR) is copy of letter dated 04.08.1989 of MCD.
21. Ex.DW1/22 (OSR) is copy of receipt dated 28.03.2001 of Delhi Jal Board.
22. Ex.DW1/23 (OSR) is copy of bill dated 28.03.2001 of Delhi Jal Board of said premises no.534.
23. Ex.DW1/24 (OSR) is copy of bill dated 19.07.2004.
24. Ex.DW1/25 (OSR) is copy of receipt dated 31.12.1985.
25. Ex.DW1/26 (OSR) is copy of invoice dated 08.02.1997.
26. Ex.DW1/27 (OSR) is copy of complaint dated 08.11.2010 to SHO PS Mehrauli.
27. Ex.DW1/28 (OSR) is copy of complaint dated 09.02.2011 to SHO PS Mehrauli.
28. Ex.DW1/29 (OSR) is legal notice dated 07.02.2011 sent to plaintiffs.
29. Ex.DW1/30 (OSR) is reply dated 15.02.2011 to legal notice.
30. Ex.DW1/31 (OSR) is copy of complaint dated 15.03.2011 to SHO PS Mehrauli.
31. Ex.DW1/32 (OSR) is site plan of the suit property.
33. Mark A to Mark E are 5 copies of electricity bills from page nos.48 to 52 (part of Ex.DW1/5, as mentioned in my affidavit of evidence).
34. Mark F is copy of my old Voter ID card (part of Ex.DW1/15, as mentioned in my affidavit of evidence).
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 12 of 37
35. Mark G is copy of letter of DDA dated 05.11.1997(mentioned as Ex.DW1/21 in my affidavit of evidence and now deexhibited).
19. No other witness was examined by defendant in support of his case and defendant's evidence was closed.
20.Final arguments were addressed by counsel for plaintiffs and defendant and written arguments were also filed by both the parties.
21. I have gone through the documents placed on record and perused the evidence of the parties and both the judicial files carefully.
22. As evident from the discussion of the factual matrix, two suits have been filed interse between the parties i.e. Umesh Kumar Jain & Anr. on one hand and Shikhar Chand Jain & Ors. on the other side. While suit no.6976/16 has been filed by Umesh Jain & Anr. for permanent and mandatory injunction, possession and specific performance, suit no.6191/16 has been filed by Sikhar Chand Jain & Ors for possession, permanent injunction and recovery. Both the suits are related to the same facts situation and hence, common issues were framed vide order dated 19.12.2012. Therefore, in the interest of justice, it is best that both the suits are decided together.
Issue No.1. Whether the suit of the plaintiff is not maintainable? OPD.
23.It is the case of the plaintiff that in suit no.6976/16 an agreement to sell Ex.PW1/2 dated 14.10.2009 was entered between Umesh Kumar CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 13 of 37 Jain and Shikhar Chand Jain and pursuant to that agreement upon payment of Rs.4,50,000/- in cash, physical and vacant possession of the suit property was handed over to Umesh Kumar Jain. The suit for specific performance of the said agreement was filed on 17.03.2011 i.e. three years from the date of the agreement and within the period of limitation. On the other hand, it is the case of Shikhar Chand Jain in suit no.6191/16 that Shikhar Chand Jain alongwith his family, around October 2009 shifted to another location i.e. Ward No.3, Parsavnath Apartment, Mehrauli, New Delhi and that he had locked the suit property and on 08.11.2010. When Shikhar Chand Jain visited the aforesaid property, he found that Umesh Kumar Jain and his wife had illegally broken the locks of first floor of the property bearing no.534 comprising of a room with WC and bath, and first floor of property bearing no.536 comprising of a big room, kitchen and a balcony, a total area being 48.70 square meters approximately. Shikhar Chand Jain also filed police complaint to that effect on 08.11.2010. Hence, the cause of action arose qua Shikhar Chand Jain on the said date. Both the suits are within limitation and hence maintainable. The said issue is decided accordingly in favour of plaintiff in suit no.6979/2016.
Issue No.2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for in clause A of his plaint? OPP.
Issue No.3. Whether the defendants are liable for eviction with respect to ground floor of premises No.536, Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi - 30? OPP.
Issue No.5. Whether the plaintiff is entitled to the relief of mandatory CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 14 of 37 injunction, as prayed for in prayer clause C of his plaint? OPP. Issue No.6.Whether the plaintiff in suit No.386/11 is entitled to the relief of possession of suit premises, as prayed for in clause no.(a) of his suit? OPP. AND Issue No.7. Whether the plaintiff in suit No.356/11 is entitled for the reliefs of permanent injunction of suit premises, as prayed for in prayer clause (b), (c), (d), (e), (f) and (g) of the said suit? OPP.
24. Issue nos.2, 3, 5, 6 and 7 are taken up together as they are connected. Onus to prove all these issues was on the plaintiff. The suit for possession, permanent and mandatory injunction i.e. Civil Suit No.6191/2016 has been filed by Shikhar Chand Jain wherein he seeks possession of the Suit property precisely marked in green colour in the site plan. The only defence of the defendant i.e. Umesh Kumar Jain in the said suit is the Agreement to Sell dated 14.10.2009. It is an admitted fact that the said Agreement to Sell cum Bayana Receipt is an Unregistered Agreement. It is a settled legal position that after the Amendment dated 24.09.2001 in Section 53-A of the Transfer of Property Act, 1882 an unregistered Agreement to Sell cannot be used for protecting the possession of a person who has been put in possession in pursuance of an unregistered Agreement to Sell. In other words courts cannot protect the possession of the defendant who, in a suit for possession filed by the plaintiff, claims that he was put in possession of the property in pursuance of an unregistered Agreement to Sell. Had the said Agreement been a registered agreement then this defence would have been available to the defendant to defend and shield his possession. The legal position has been succinctly explained by the Hon'ble Supreme Court of India CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 15 of 37 in the recent case of R Hemlatha v. Kasthuri, 2023 wherein it has been held:
Thus, as per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under ChapterII of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document.
11. At this stage, the primary statement of objects and reasons to the Tamil Nadu Amendment Act, 2012, is also required to be referred to and considered. The primary statement of objects and reasons seem to suggest that amendment has been introduced by the State of Tamil Nadu bearing in mind the loss to the exchequer as public were executing the documents relating to sale of immovable property etc. on white paper or on stamp paper of nominal value.
12. At this stage, it is required to be noted that the proviso to Section 49 came to be inserted vide Act No.21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable."
25. In other words, in case where the title of the property is not disputed and the title holder files a suit for possession, then the only defence available to the defendant in case he seeks to protect his possession on the basis of Agreement to Sell is that the agreement should be registered. This is clearly not the case here and hence the possession of the plaintiff i.e. Umesh Kumar Jain cannot be protected. In fact the protection of possession on account of part performance has not even been pleaded. From the other standpoint also, it is settled that the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 16 of 37 only purpose an Unregistered Agreement to Sell serves is that it may be received in Evidence in a suit where the party seeks a relief of getting a Registered Instrument executed in its favour on the basis of that Unregistered Agreement to sell i.e. the Sale Deed. In this case also, Suit for Specific Performance i.e. Suit no. 6979/2016 has been filed by Umesh Kumar Jain. In the said suit, the said Agreement to Sell has been received in Evidence and has been considered but after considering the other Evidence on record as elaborately discussed in the issue relating to Specific Performance, the party has failed to prove its 'Readiness and Willingness' therefore the possession of Umesh Kumar Jain after having failed in the suit for Specific Performance has become unauthorised.
26. In the light of the foregoing, the plaintiff in suit no.6979/2017 i.e. Umesh Kumar Jain has failed to show his claim for possession, permanent and mandatory injunction and specific performance against the defendant Shikhar Chand Jain. At the same time, the plaintiff in suit no.6191/2016 i.e. Shikhar Chand Jain has succeeded in his claim for possession, permanent and mandatory Injunction against the defendant Umesh Kumar Jain. The present issue is hence decided against the plaintiff in suit no.6979/2017 and in favour of the defendant. The issue is decided in favour of the plaintiff in suit no.6191/2016 and against the defendant. On the basis of the same, the issues nos.2, 3, 5, 6 and 7 are accordingly decided in favour of the defendant and against the plaintiff in suit no. 6979/2017 and in favour of the plaintiff and against the defendant in suit no.
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 17 of 37 6191/2016.
Issue No.4. Whether the plaintiff is entitled to the relief of Specific Performance in respect of suit property bearing No.536, two storey building measuring 20 sq. yards., Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi? OPP.
27. In plaint filed in suit no.6191/16 Shikhar Chand Jain averred that vide an oral family partition in April, 1973, the properties no.534 and 536 Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi were partitioned vide a horizontal partitioned wall. As per site plan, the property marked as Red went to the descendants of Sh. Jagminder Das Jain i.e. the defendants in suit 6191/16. While the property marked as Green went to the plaintiff in suit no.6191/16 i.e. Shikhar Chand Jain. The factum of oral partition has not been disputed and therefore, its an admitted fact that the said properties were partitioned vide oral partition of April 1973. Hence, there is no dispute with respect to the ownership of the suit property and the same lies with legal heirs of Smt. Gulkandi Devi Jain, who are the plaintiffs in suit no.6191/16. It is also an admitted fact that till October, 2009 when plaintiff in suit no.6191/16 shifted to a new premises, both the parties were enjoying peaceful possession of their respective shares in the property i.e. 534 and 536, Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi.
28. The dispute is with respect to the contradictory position of the parties in light of the alleged events which took place post October 2009. The said contradictory position is that on 14.10.2009, Shikhar CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 18 of 37 Chand Jain entered into an agreement to sell-cum-bayana receipt with Umesh Kumar Jain. The same is disputed by Shikhar Chand Jain who in turn alleges that no such agreement to sell took place and in fact, it is Umesh Kumar Jain who had illegally broken upon the locks of the suit property and continues to illegally occupy the same. Umesh Kumar Jain thus filed suit no.6979/16 to specifically enforce the agreement to sell dated 14.10.2009. In order to adjudicate the same, definitive finding on two aspects is necessary. (1) Whether the agreement to sell dated 14.10.2009 exhibited as Ex.PW1/2 can be admitted in evidence and stands proved. (2) If the answer to (1) is affirmative, whether the plaintiff in suit no.6979/16 is entitled to a decree of specific performance.
29. It is noteworthy to mention that Shikhar Chand Jain in his written statement filed in suit no.6979/16 has denied the existence of any such agreement and it has been averred that the parties did not enter into any agreement and hence question of its performance did not arise. The plaintiffs in suit no.6979/16, as per the averment of the defendants, have concocted a false story to grab the property of the defendant. The said agreement to sell was sent to FSL lab and vide report dated 31.08.2016 of Assistant Director (Documents), it has been opined that the signature stamped and marked Q1 (signature of the executant of agreement to sell i.e. Ex.PW1/2) and S1 to S5 i.e. five admitted signatures of defendant are all written by one and the same person. Although, the person who submitted the report could not be cross examined as his presence could not be secured in the proceedings before this Court.
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 19 of 37
30.In relation to the evidentiary value of handwriting expert, the hon'ble Delhi High Court in the case of Sarabjit Singh Vs. Gurpal Kaur held as under :-
"In the matter of Lalit Popli v. Canara Bank &Others (2003) 3SCC 583 the Apex Court while dealing with the case of civil nature, in the following para, held that 13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45,47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter (See Murari Lal v. State of M.P.) It would be thus seen that it is for the Court to decide in the facts of each case whether to accept the evidence of the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 20 of 37 handwriting expert even if the same has not been proved on record by summoning the expert witness as there is no straight jacket formula or rule of thumb in this regard. Be that as it may, this Court does not find any fault on the part of the learned Trial Court in placing reliance on the two FSL reports submitted by the Senior Scientific Officer to form its view that the appellant husband had not only forged signatures of the respondent wife on the joint petitions but had committed a serious fraud upon the Court by producing some imposter in place of his actual wife i.e. respondent herein. There is enough material available on record other than FSL reports which clearly points out such forgery and fraud committed by the appellant husband in obtaining the said judgment and decree dated 22.4.2008. There is no denial of the fact that the appellant husband had moved two separate applications, one for adducing independent handwriting expert and the other raising objections to the said FSL reports and for examination of the author of the two FSL reports. On perusal of the impugned judgment, it is manifest therefrom that the appellant husband did not press the said application for producing his own handwriting expert and, therefore any contention being raised by the counsel for the appellant husband contrary to the said record merits straightway rejection. The other objection raised by the counsel for the appellant husband with regard to the filing of objections against the said reports and for cross- examination of the author of the FSL reports, the answer thereto has already been given in the above discussion. For the sake of repetition, it is reiterated that in the given facts of each case the Courts can either enter into the realm of evidence to decide the objections to the report of the expert witness by calling the expert witness in the witness box or take the help of an expert opinion in terms of Section 45, 47 and 73 of the Indian CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 21 of 37 Evidence Act, 1872 read with Order 26 Rule 10A of the CPC,1908 so as to give a finding on the handwriting or on the signatures taking note of the other corroborated material available on record. Here it is pertinent to mention that the expertise of the Senior Scientific Officer who is from a Government laboratory, CFSL, known for its independence and impartiality, cannot be easily doubted in the absence of any mature suggestion otherwise and therefore also no fault can be found with the reasoning of the learned trial court giving due weightage to the said two FSL reports.
From the above, it is clear that the Hon'ble Court has held that in case evidence of handwriting expert is uncorroborated, it is for the court to decide whether to accept such evidence or not. In such a scenario, the court can resort to the provision of Section 73 of Indian Evidence Act vide which it can compare the signature, writing or seal with others admitted or proved.
31. Section 73 Indian Evidence Act is as under:-
"Comparison of signature, writing or seal with others admitted or prove - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person".
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 22 of 37
32. After taking the aid of the above Section, this court is of the considered opinion that the signature marked at point X on Ex.PW1/2 prima facie seem to resemble the admitted signature of Shikhar Chand Jain. Hence, the agreement to sell stands proved and can be admitted into evidence.
33. Once the court has come to the above conclusion, the effect of this agreement to sell and its implications on the fate of the suit filed by the plaintiff in suit no.6979/16 has to be seen. Section 17(1)(A) of the Registration Act holds as under :-
"The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001".
34. The said section is however qualified by Section 49 of the Registration Act which holds as under :-
"Clause (a) of Section 49 provides that an unregistered document shall not affect any immovable property comprised therein, if such document is required to be registered by any law. The decisions under clause
(c) have uniformly laid down that the unregistered document can be adduced in evidence for any purpose other than that of affecting the immovable property.
But there has been a divergence of judicial opinion as to the extent to which evidentiary use may be made of documents which purport to affect immovable property.1 In one line of cases it has been held that a covenant, such as a personal covenant in a mortgage deed, can be proved, but where the transaction is indivisible, that is to say where there is no separate evidence of the loan or CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 23 of 37 payment other than the deed itself, such loan or payment cannot be proved by the documents alone.
Cases such as Sambayya v. Gangayya, stand on a different footing, since what was sought to be enforced in that case were the rights or obligations contained in the deed which would arise only if the deed were valid. There is another line of cases which hold that an unregistered document can be used to prove matters like the character of possession, status, acknowledgment etc. Clause (c) in its present form, a couched in a language which prohibits the reception of the unregistered document as evidence of any transaction affecting the property. It must be noted that even if the document is received in evidence it will merely prove that there was a contract or agreement which, however, did not ripen into a valid transaction affecting the immovable property, for want of registration.
Such evidence, even if let in, will be ineffective to create any right, title or interest in immovable property. On the other hand, it should be open to the parties to prove the document itself in order to bring before the Court the best evidence relating to what was in fact done and if it falls short of a valid transaction relating to the immovable property, the rights based upon contract, such as, refund of money or damages and the like, should be capable of being enforced by the Court without, however, in any way validating the transaction or enforcing any right, title or interest in the immovable property.
The unregistered document shall not in any way be used to establish a right, title or interest in immovable property1 on the basis or a transaction which requires a registered document or in respect of which a document, if there be one, requires compulsory registration whether by section 17 or by any other law.
35. The cumulative effect of both these section read together is that post the amendment in Section53A of Transfer Property Act, an agreement to sell executed after 24.09.2001 is compulsorily required to be registered for obtaining part performance based on the said CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 24 of 37 agreement to sell but the same does not preclude the court to receive the said agreement to sell as evidence of a contract in a suit for specific performance. Therefore, the said agreement to sell is very much material for determining whether the plaintiff in suit no.6979/16 is entitled to a decree of specific relief.
36.The essential requirements for obtaining a decree of specific relief are mentioned in Section 16(c) of Specific Relief Act which enumerates that the party who seeks a decree of specific performance of a contract in his favour must prove that he has performed or has been ready and willing to perform the essential terms of the act, which are to be performed by him, other than terms the performance of which has been prevented or waived by defendant. Therefore, the grant of decree of specific performance entails a factual finding of the court on the issue of readiness and willingness of the party who seeks the specific performance of the contract. The same are to be borne out specifically from the evidence on record.
37. The agreement to sell dated 14.10.2009 mentions three things, firstly the property i.e. first floor with roof rights of 534 ward no.5. measuring approximately 22 square yards and ground floor, first floor, second floor and roof rights of property 536, Near Bangla Doodh wali Gali, Mehrauli, New Delhi-110030 approximately 20 square yards had been sold for total sale consideration of Rs.8,50,000/-. Out of Rs.8,50,000/-, an amount of Rs.4,50,000/- was given in cash and physical vacant possession was delivered and it was promised that balance amount i.e. Rs.4 Lacs shall be paid at the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 25 of 37 time of execution of sale deed. Regarding the payment of the balance amount i.e. Rs.4 lacs, Ms. Shashi Singh i.e. PW1 in her cross examination in suit no.6979/16 categorically stated that "I do not have any proof regarding alleged payment of Rs.4 lacs to the defendant. The said arrangement of Rs.4 lacs was done by me from the mutual funds of my children or my husband. I did not file any proof of release of said mutual funds for making arrangement of funds in the present matter".
38. It is a matter of record that a complaint dated 08.11.2010 was lodged by Shikhar Chand Jain in which he alleged that Umesh Kumar Jain and his wife have forcibly broken the locks of the suit property i.e. the same property which Umesh Kumar Jain alleges that it was transferred to him vide agreement to sell. It appears highly unlikely that just three days after the criminal complaint the plaintiff in suit no.6979/16 i.e. Umesh Kumar Jain and his wife paid the balance amount under that agreement to sell to Shikhar Chand Jain and did not even take the receipt of the same.
39. In addition, the said balance amount was to be paid at the time of execution of the sale deed as per the terms of agreement to sell. Therefore, a prudent person in such a situation would have entered into a written agreement of some sort wherein the receiver of the balance amount promises to execute a sale deed on the date agreed. No such agreement was done in this case. Also, as is evident from the cross examination of Smt. Shashi Jain, who stated that she arranged the money from releasing the mutual funds. If the same was true, CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 26 of 37 there was bound to be some record of the same which would have been easily available since mutual funds are in dematerialized form and hence the record of their buying and selling is readily available. Even the witness i.e. Sh. Chandan Kumar did not remember the denomination of the notes in which Rs.4 Lacs were paid. All these facts cumulatively suggest that there is no reliable evidence for the payment of balance amount of Rs.4 Lacs to Shikhar Chand Jain.
40. After arriving to the said finding the court is of the opinion that the plaintiff in suit no.6979/16 was not able to satisfy this court that balance consideration was paid by him.
41. The next step for this court is to embark upon an inquiry as to the readiness and willingness of the plaintiff in 6979/16 to perform his part of the contract i.e. to pay balance amount of Rs.4 Lacs. For the same, the following facts as borne out from the records are relevant. (1) The agreement to sell was entered into on 14.10.2009. The complaint by Shikhar Chand Jain against the plaintiff in 6979/16 was lodged on 08.11.2010. Between the period of 14.10.2009 to 08.11.2010. There are no communications/reminders etc calling upon Shikhar Chand Jain to perform his part of the contract and also the plaintiff asserting his readiness and willingness to perform his respective part. There is no legal notice to that effect or appointment taken with the Sub Registrar. Even the e-stamp paper (Ex.PW1/6) were purchased on 07.12.2010 i.e. after the lodging of complaint by Shikhar Chand Jain. There is no written record that post the filing of criminal complaint by Shikhar Chand Jain, there was definite CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 27 of 37 understanding between Shikhar Chand Jain and Umesh Kumar Jain that e-stamp paper would be purchased and he shall execute the sale deed.
(2) As far as the financial capacity of the plaintiff in suit no.6979/16 is concerned, copies of the bank statement of bank account of Smt. Shashi Jain maintained in Punjab National Bank which are marked as Ex.PW1/7 have been annexed by the plaintiff. The said statements are between the periods 02.03.2010 to 30.01.2011. In this regard, it is noted that the said statements at no point of time depict a balance of Rs.4 Lacs i.e. the balance amount that was to be paid by plaintiff as per agreement to sell dated 14.10.2009. The maximum amount maintained in the said bank account is Rs.1,85,000/- (approximately). Apart from the said bank statement, nothing has been produced on record to show the financial capacity of the plaintiff in suit no.6979/16. The existence of requisite financial capacity is sine qua non for demonstrating the readiness to perform the contract. The hon'ble Supreme Court in the case of U N Krishnamurthy (since deceased) through LR's v. A M Krishnamurthy, Civil appeal 4703 of 2022, SC, held as under:-
21.It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement.
Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that the has the money or has alternatively made necessary arrangements to get the money......
24.Section 16 (c) of the Specific Relief Act, 1963 bars the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 28 of 37 relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However,explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
25.To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money,the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
42. In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd. And Anr. AIR 1968 Supreme Court 1355, this Court held that "it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 29 of 37 contract....." and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon.
43. In D.L.F. Housing and Construction (Pvt.) Ltd. AIR 1971 Supreme Court 2324, the court held that "in the absence of an averment on the part of the plaintiff in the plaint, that he was ready and willing to perform his part of the contract, it was held that the Plaintiff had no cause of action so far as the relief for specific performance was concerned. In this case, of course, there is an averment in the plaint that the respondent plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the Respondent Plaintiff had proved his readiness and willingness to perform his obligations under the contract".
44.In Umabai v. Nilkanth Dhondiba Chavan, Aironline 2005 SC 350, the Hon'ble Apex court held that "a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The court would necessarily have to arrive at the finding that the plaintiff all along were, and still are ready and also willing to perform their part of the contract, taking into account the entirety of the pleadings as also the evidence brought on record. The court held as follows:
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 30 of 37 "So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved."
45. In K.S. Vidyanadam v. Vairavan, AIR 1997 Supreme Court 1751, it was held that "grant of the relief of specific performance is discretionary and the Court is not bound to grant it. This Court further held that though time is not of essence to a contract relating to transfer of property,such contracts need to be completed within a reasonable time period. Thus the time element cannot be completely ignored".
46.In a suit for specific performance of a contract, the court is required to pose unto itself the following questions, namely:-(i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and(ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 31 of 37 under Section 16(c) of the Specific Relief Act, 1963.
47. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996 SCC (4) 526, the court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. The same view was taken by the Hon'ble Apex Court in Kalawati v. Rakesh Kumar, AIR 2018 Supreme Court 960.
48. Therefore, on the basis of clear law laid down on the said subject and applying the same on the fact situation of this case, it is clear that the plaintiff in suit 6979/16 has neither proved the readiness nor the willingness to perform his part of the contract and hence a decree of specific performance ought not to be awarded in his favour. Issue no.4 is decided accordingly in favour fo the defendant and against the plaintiff in suit no.6979/16.
49.Ordinarily, party claiming Specific relief is also entitled to make an alternate prayer for refund of earnest money, deposit etc. by virtue of Section 22 of the Specific Relief Act, 1963 which provides as under:
Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 32 of 37 of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-
section (1) shall be without prejudice to its powers to award compensation under Section 21.
50.The plaintiff in suit no. 6979/2016 i.e. Umesh Kumar Jain has not claimed this alternate relief and hence the amount of Rs.4,00,000/- which was purportedly paid in cash by the plaintiff cannot be granted to him.
Issues nos.8 and 9 shall be decided together as the same are inter connected, which are as under :-
Issue No.8. Whether the plaintiff in suit No.356/11 is entitled for the relief of mandatory injunction and recovery of Rs.73,900/-, as prayed for in prayer clause (h) and (i) respectively of the said CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 33 of 37 suit?OPP.
Issue No.9. Whether the plaintiff in suit No.356/2011 is entitled to the relief of future mesne profits with interest, as prayed for in prayer clause (j) of the said suit? OPP.
51. On the basis of the observations made in the preceding issues, it is clear that the Plaintiff in civil suit no. 6979/2016 i.e. Umesh Kumar Jain was put in possession of the Suit Property based on the unregistered Agreement to Sell. Two things arise from the same, that the possession of the plaintiff, as mentioned earlier, is not legally tenable as he could not have claimed the benefit under Section 53-A Transfer of Property Act, 1882 to defend his possession. In any case, once his suit for specific performance fails on account of his failure to demonstrate his readiness and willingness to perform his part of the contract then his possession anyways becomes unauthorised. Therefore, the plaintiff in suit no. 6191/2016 i.e. Shikhar Chand Jain has to be awarded mesne profits for suit property which is in the possession of the defendant in suit no.6191/2016 i.e. Umesh Kumar Jain. It is an admitted fact and has also been borne out from the order dated 10.06.2021 disposing an application of plaintiff in suit no.6191/16 under Order 39 Rule 1 & 2 that the plaintiff in Suit no. 6191/2016 i.e. Shikhar Chand Jain was in possession of Ground Floor of part of suit property i.e. 536, Doodhwali Gali while Umesh Kumar Jain has remained in possession of the rest of the suit property. Hence, Shikhar Chand Jain is entitled to mesne profits accruing on the portion of suit property in which Umesh Kumar Jain is in possession since 25.11.2009. Having observed the same, the CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 34 of 37 court is of the view that the Agreement to Sell dated 14.10.2009 was duly received in Evidence and stands proved. As per the said agreement, the defendant in suit No.6191/2016 i.e. Umesh Kumar Jain paid Rs.4,50,000/- cash to Shikhar Chand Jain out of the total Sale consideration of Rs.8,50,000/- although he has contended that he has paid Rs.4,00,000/- in cash also later but the same could not be proved from the evidence on record. Hence, in computing the mesne profits to be paid to Shikhar Chand Jain, it would be just that Rs.4,50,000/- which have been paid by Umesh Kumar Jain at the time of signing of Agreement to Sell are to be adjusted after computing the mesne profits. Although, plaintiff has not brought anything on record to show the existing rate of rent but he has sought a mesne profit of Rs.10,000/- per month for an unauthorized occupation. The court cannot ignore the fact that the suit was filed in the year 2011 and is being decided in 2024. Hence, keeping in view the inflation and rate of rents, it is directed that the plaintiff in suit no.6191/16 be paid a mesne profit of Rs.20,000/- per month for unauthorized occupation by the defendant Umesh Kumar Jain. Payment of Rs.4,50,000/- be adjusted accordingly. Hence, this issue is also decided in favour of the Plaintiff in suit No.6191/2016 and against the defendant.
52. As already noted in the preceding issues, the Agreement to Sell dated 14.10.2009 clearly mentions that the physical and vacant possession of the suit property has been handed over to Umesh Kumar Jain. The Plaintiff in suit no.6191/2016 has not filed any evidence to the effect that at the time of handing over the suit property any list of items was CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 35 of 37 prepared and agreed upon by both the parties as lying in the suit property which are entrusted in the care and trust of defendant in 6191/2016. The onus to prove the same was upon the Plaintiff which he has failed to discharge. Only the invoices/bills etc. of the allegedly stolen items have been filed which do not prove plaintiff's case in that regard. Hence, this issue is decided against the plaintiff in suit No. 6191/2016 and in favour of the defendant.
Relief in Suit No.6979/2016.
53. In view of the above discussion and findings given while deciding issue no.1, both the suits are within limitation and hence maintainable. Further, the plaintiffs in suit no.6979/2017 i.e. Umesh Kumar Jain has failed to show his claim for possession, permanent and mandatory injunction and specific performance against the defendant Shikhar Chand Jain.
54. As decided in issued no.4, the plaintiffs Umesh Jain and Shashi Jain are not entitled to the relief of specific performance in respect of suit property bearing No.536, two storey building measuring 20 sq. yards., Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi and property bearing no.534 comprising of a room with WC and bath, and first floor of property bearing no.536 comprising of a big room, kitchen and a balcony, a total area being 48.70 square meters approximately.
55. Suit no.6979/2016 is dismissed accordingly.
CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 36 of 37 Relief in Suit No.6191/2016.
56. The plaintiff in suit no.6191/2016 i.e. Shikhar Chand Jain is entitled for possession, permanent and mandatory Injunction against the defendants Umesh Kumar Jain and Shashi Jain in respect of suit property bearing No.536, two storey building measuring 20 sq. yards., Ward No.5, Bangla Doodh Wali Gali, Mehrauli, New Delhi and property bearing no.534 comprising of a room with WC and bath, and first floor of property bearing no.536 comprising of a big room, kitchen and a balcony, a total area being 48.70 square meters approximately.
57. Plaintiff Shikhar Chand Jain in suit no.6191/2016 is entitled to mesne profits accruing on the portion of suit property in which Umesh Kumar Jain is in possession since 25.11.2009. Defendants Umesh Kumar Jain and Shashi Jain in suit no.6191/16 are directed to pay mesne profit of Rs.20,000/- per month for unauthorized occupation of the suit property to plaintiff Shikhar Chand Jain. Payment of Rs.4,50,000/- be adjusted accordingly.
58. Hence, suit no.6191/2016 is decreed. Separate decree sheets be prepared accordingly in both the suits subject to filing of deficient court fee, if any. File be consigned to Record Digitally Room after due signed by compliance. PURVA PURVA SAREEN SAREEN Date:
2024.04.10 15:50:22 +0530 Announced in open court (Purva Sareen) On 30th March, 2024. Additional District Judge-01, (South) Saket District Courts, New Delhi CS No.6979/2016, Umesh Jain and Anr. v. Sikhar Chand Jain. AND CS No.6191/2016, Sikhar Chand Jain v. Umesh Jain and Anr. Page 37 of 37