Delhi District Court
Shri Raj Kumar Singh Bhadauria vs Shri Jagdish Singh Bhadauria on 3 December, 2018
IN THE COURT OF SMT RAJ RANI MITTRA:
ADDL. DISTRICT JUDGE-04 : SOUTH-WEST DISTT:DWARKA
COURTS:NEW DELHI:
CS No.15251/2016 (Old No.86/16)
SHRI RAJ KUMAR SINGH BHADAURIA
S/o LATE SHRI MAN MOHAN SINGH
BHADAURIA, THROUGH POWER OF
ATTORNEY SHRI KEDAR SINGH
BHADAURIA S/O LATE SHRI MAN MOHAN
SINGH BHADAURIA,
R/o F-46, MAN SAROVAR GARDEN,
NEW DELHI
(THROUGH SHRI ARVIND SINGH AND
SHRI ARVIND KUMAR, ADVOCATES) .....PLAINTIFF
VERSUS
1.SHRI JAGDISH SINGH BHADAURIA
S/o LATE SHRI MANMOHAN SINGH
BHADAURIA, R/o 4, WEST MOORELAND
Ct. Markham, Ontario, Canada- L 3 R 8 L 9
2.SMT. PUSHPA BHADURIA
W/o SHRI JAGDISH SINGH BHADAURIA
R/o 4, WEST MOORELAND
Ct. Markham, Ontario, Canada- L 3 R 8 L 9
(DEFT.NOs.1&2 THROUGH:MS NAMITA ROY, ADVOCATE)
3.SUB REGISTRAR-IX
GOVT OF NCT OF DELHI, KAPESHERA,
NEW DELHI AND
4.TEHSILDAR, REVENUE ESTATE (T)
TEHSIL BUILDING, NAJAFGARH,
NEW DELHI ....DEFENDANTS
Date of filing of suit/appeal: 07.05.2007
Date of reserving judgment: 05.11.2018
Date of pronouncement : 03.12.2018
Raj Kumar Bhaduria vs Jagdish S Bhaduria 1 of 19
SUIT FOR RESCISSION, CANCELLATION OF THE PURPORTED
SALE DEED DATED 12.04.2006, DECLARATION, POSSESSION
AND FOR PERMANENT INJUNCTION.
JUDGMENT
1. Plaintiff has filed this suit for rescission and cancellation of sale deed dated 12.04.2006, declaration, possession and permanent injunction against defendant no.1 and 2 through Shri Kedar Singh Bhadauria, his attorney. Defendant no.1 is the real brother of the plaintiff and defendant no.2 is the wife of defendant no.1. Both the defendants are foreign nationals and are Canadian. Plaintiff had migrated to Canada in December 1982 to pursue higher education and since then he is settled abroad. It is further stated in the plaint that plaintiff is the owner of agriculture land situated in the revenue estate of village Chhawla, Najafgarh, New Delhi comprising in New Khewat No.232/2, Khasra No.45/8/2 having 1 Bigha 2 Biswas of land, in Khasra No.45/12/2 having 2 Bighas and 17 Biswas and in Khasra No.45/13/1 having 3 Bighas and 11 Biswas of land which was purchased from Shri Sher Singh. It is alleged that plaintiff executed a limited power of attorney on 01.01.2004 in favour of defendant no.1 for a limited purpose and for khasra no.45/12 only and not for other khasras and land in question. The power of attorney did not allow defendant no.1 to sell or mortgage the above land from Khasra Nos.45/8/2, 45/13/1 and 45/12/2. Plaintiff has referred clause 2 and 7 of the aforesaid power of attorney. It is further alleged in the plaint that the power of attorney was given to defendant no.1 as he used to come frequently to India whereas the plaintiff was not coming to India. The Raj Kumar Bhaduria vs Jagdish S Bhaduria 2 of 19 plaintiff had visited India in December 2003 and he realized that his mother was ailing. It was with this thought that he executed the limited power of attorney in favour of defendant no.1 who had earlier visited Delhi at the same time so that financially the plaintiff could help his mother in case of need out of earnest money from khasra no.45/12. The mother of plaintiff expired on 11.02.2004 barely a month after the execution of power of attorney which was executed in favour of defendant no.1 in fiduciary capacity and faith as expressed between the brothers.
2. It is further alleged in the plaint that defendant no.1 became greedy and broke the trust. As per plaintiff, defendant no.1 had sold the entire land in question including the land of which he was not empowered under the power of attorney to his own wife defendant no.2 and no consideration whatsoever passed to the plaintiff from the purported sale deed from the purported vendee. It is alleged that defendant no.1 had even purchased the stamp papers of his own and not the defendant no.2. It is alleged in the plaint that false declaration was made in the purported sale deed that defendant nos.1 and 2 are Indian nationals whereas they are Canadian and being foreigners they can not buy agricultural property in India. Defendant nos.3 and 4 colluded with defendant no.1 to cheat the plaintiff as it was their duty of care and obligation cast upon by law to have enquired before the sale deed was executed whether they were Indian or not and that the GPA referred to in the sale deed does not empower defendant no.1 to sell the land at all. Defendant no.1 after the expiry of the Raj Kumar Bhaduria vs Jagdish S Bhaduria 3 of 19 mother in a well planned conspiracy and well executed sinister plot did not return the power of attorney to the plaintiff but bought stamp papers worth Rs.1,96,500/- on 23.12.2004 and purportedly sold the said agricultural land on 12.04.2006 to defendant no.2 for a meager price of Rs.26,57,000/- (Rupees Twenty Six Lakhs Fifty Seven Thousand only) despite its price being crores of rupees. Attorney of plaintiff informed this fact to the plaintiff in the first week of August 2006. Plaintiff called upon defendant no.1 and persuaded that it is a family matter which should be resolved amicably or the family's name will be maligned to which defendant no.1 replied that he does not care as he does not live in India and he is not going to return the property worth crores of rupees. Hence, the present suit.
3. In the preliminary submissions of their written statement, defendant nos.1 and 2 have stated that the present suit is not maintainable as the same has been filed with the illegal and invalid power of attorney, that plaintiff is not the real owner of the suit property.
4. On merits, it is stated that plaintiff was a college going and vagabond student and later unemployed of about 18 years old when the suit property was purchased and was not having any source of income at that time. Defendant no.1 is the eldest and plaintiff is the youngest among five siblings. It is stated that father of plaintiff and defendant no.1 was a man of very meager income throughout his life who started his career as a cleaner with the Northern Railways, that over the years he got promoted to a shunter Raj Kumar Bhaduria vs Jagdish S Bhaduria 4 of 19 and finally as a driver for steam engine. On the other hand, defendant moved to Canada in the year 1970 where he got appointed as the Senior Physics Teacher and later on Head of the Science Department, got married to defendant no.2 Dr. Pushpa Bhadauria in the year 1972 at the Mansarovar Garden Home and after about an year of the marriage, defendant no.2 also joined the defendant no.1 and started earning by teaching in Canada. Both the defendants are legal and lawful owners of the suit property and are in possession of the same and have been maintaining the entire suit property since the day when it was purchased in the year 1981. The defendants paid the entire consideration amount for its purchase and plaintiff had not made any financial contribution for the purchase or maintenance of any of the properties.
5. On the basis of the pleadings of the parties, following issues were framed by the Hon'ble High Court vide order dated 02.05.2011 :
ISSUES
1.Whether the sale deed dated 12.04.2006 in respect of the lands in New Khewat No.232/2, Khasra No.45/8/2(1)-2); having 1 Bigha 1 biswas of land and in Khasra No.45/12/2; (2)-
17) 2 Bighas and 17 Biswas of land and in Khasra No.45/13/1, (3-11) admeasuring about 7 Bighas and 10 Biswas of land situated in Village Chhawala, Tehsil Najafgarh, Bijwasan Road, District Delhi through General Power of Attorney (GPA) of defendant No.1 in favour of defendant No.2 dated 12.04.2006 is illegal, void, nonest and liable to be cancelled? ...OPP
2.Whether the plaintiff is entitled for a decree of possession of said land being the owner of Raj Kumar Bhaduria vs Jagdish S Bhaduria 5 of 19 the same, as claimed? ...........OPP
3.Whether the suit filed by the plaintiff is not maintainable as the same has been filed on the basis of invalid Power of Attorney? .....OPD
4.Whether the suit is time barred and is not maintainable? ...........OPD
5.Whether the suit has been properly valued for the purpose of court fee and jurisdiction?
...........OPP
6.Relief.
6. In support of his case, plaintiff examined seven witnesses in all i.e. Shri Kedar Singh Bhadauria as PW1, Shri Lalit Kumar Parashar, UDC from the office of Sub Registrar (North), Kashmere Gate, Delhi as PW2, Ms Niyat Rani Ahlmad from the court of Ms Manika, Ld MM, Dwarka Courts, New Delhi again as PW2 (inadvertently this witness was also marked as PW2), ASI Nihal Singh, PS Chhawla, New Delhi as PW3, Shri Ashok Kumar, UDC as PW4, Shri Chattar Singh, DTC Conductor, Licensing Authority, Palam,New Delhi as PW5 and Shri Navneet Kumar Mathur as PW6.
7. On the other hand, defendant examined Shri Jagdish Singh Bhadauria, Defendant No.1 as DW1 and Smt Asha Devi as DW2.
8. PW1 attorney of plaintiff has tendered his affidavit dated 08.10.2009 as Ex.PW1/A wherein he has testified that plaintiff had authorized him for filing the present suit and signing of affidavits through power of attorney Ex.PW1/1. This witness has further proved on record certified copy of Raj Kumar Bhaduria vs Jagdish S Bhaduria 6 of 19 sale deed dated 02.04.1981 vide which the suit property, referred to in the present issue, was purchased as Ex.PW1/2. This witness has also proved on record certified copy of power of attorney dated 01.01.2004 executed by the plaintiff in favour of defendant no.1 as Ex.PW1/3. He has also proved on record certified copy of sale deed dated 12.04.2006 executed by defendant no.1 in favour of defendant no.2 as Ex.PW1/4 besides sizra and khatauni paimaish as Ex.PW1/4A and Ex.PW1/4B. This witness has further proved on record driving license of one Prabhakar Singh and was mention in the sale deed as identity of Jagdish Singh Bhaduria as Ex.PW1/5. This witness has also proved on record copy of complaint made to the police against the defendants as Ex.PW1/6.
9. During cross examination of this witness, the letters written by the father and other family members, which have been admitted by the witness as having been written by them were exhibited as Ex.PW1/D1 to Ex.PW1/D-17. This witness has denied the specific question of defendants that no money was ever sent by defendant nos.1 and 2 for purchase of land.
10. PW2 Lalit Kumar Parashar, UDC from the office of Sub Registrar (North), Kashmere Gate, Delhi has proved on record copy of power of attorney Ex.PW1/3 executed by Shri Raj Kumar Goria dated 01.01.2004 duly registered in the office.
11. Ms Niyat Rani, Ahlmad from the court of Ms Manika, Raj Kumar Bhaduria vs Jagdish S Bhaduria 7 of 19 MM, Dwarka Courts, New Delhi examined as PW2 (inadvertently marked as PW2 again) had brought the case file of complaint case no.1167/2010 PS Chhawla titled as Raj Kumar Singh Bhaduria vs State and further stated that FIR No.253/2009 under Section 420/467/471/34 IPC was registered.
12. PW3 ASI Nihal Singh has proved copy of FIR as Ex.PW3/1 registered at PS Chhawla under Section 420/467/471/34 IPC and stated that the case was still under investigation.
13. PW4 Shri Ashok Kumar, UDC from the office of Sub Registrar I, Kashmere Gate, Delhi has proved on record GPA dated 01.01.2004 as Ex.PW4/1.
14. PW5 Shri Chattar Singh, DTC Conductor, Licencing Authority Palam, Dwarka Sector-10 has proved on record his authorization letter as Ex.PW5/A. This witness had brought record regarding Licence No.P09012003283406 in the name of Shri Prabhakar Singh and proved a certified copy thereof as Ex.PW5/B.
15. PW6 Shri Navneet Kumar Mathur tendered his affidavit Ex.P6. He has testified that he is working as Assistant Engineer in DDA, that he knew plaintiff and defendant no.1 for the last more than 40 years, that plaintiff was the registered owner of the suit land and that plaintiff had executed a limited power of attorney on 01.01.2004 in favour of defendant no.1 for Khasra no.45/12 only on Raj Kumar Bhaduria vs Jagdish S Bhaduria 8 of 19 0.101.2004 when this witness accompanied them at the office of Sub Registrar, Kashmere Gate, Delhi and this witness also identified the power of attorney dated 01.01.2004 as Ex.PW1/3.
16. During his cross examination, this witness has deposed that he does not know as towhen and by whom and in whose name, the suit property was purchased, that at the time of execution of Ex.PW1/3, he came to know that the plaintiff was the owner of the suit property, that Ex.PW1/3 was not typed/prepared in his presence. This witness has further deposed in his cross examination that he does not remember the total area of the land for which Ex.PW1/3 was executed. This witness has also deposed during cross examination that he does not remember whether defendant no.1 had signed on any document on the date of registration of Ex.PW1/3.
17. Defendant no.1 (DW1) has tendered his affidavit dated 01.02.2017 as Ex.D1. This witness has relied upon, copy of income tax returns Mark A (colly), cheques Ex.DW1/2 to Ex.DW1/6, counter foils Ex.DW1/7 to Ex.DW1/9, power of attorney dated 10.08.1991 as Ex.DW1/10, photocopies of declarations Mark B (colly) and power of attorney dated 01.01.2004 as Ex.DW1/11. The document mentioned in affidavit of this witness as Ex.DW1/1 have already been exhibited in the statement of PW1 as Ex.PW1/7 to Ex.PW1/9.
18. DW2 Smt Asha Devi W/o Shri Prabhakar Singh Chauhan has appeared in the witness box and tendered her Raj Kumar Bhaduria vs Jagdish S Bhaduria 9 of 19 affidavit dated 14.12.2017 as Ex.DW2/A.
19. I have heard Shri Arvind Singh and Shri Arvind Kumar, learned counsel for the plaintiff, Ms Namita Roy, learned counsel for defendant nos.1 and 2 and have gone through the material on record including the evidence adduced on behalf of the parties.
20. Ld counsel for the plaintiff has argued that father of plaintiff and defendant nos.1 had purchased agricultural land situated at Revenue Estate of Village Chhawla, Najafgarh, New Delhi comprising in New Khewat No.232/2, Khasra No.45/12 having 2 bighas and 9 biswas, khasra no.45/13 having 3 bighas and 11 biswas land, khasra no.45/8/2 having 1 bigha 7 biswas of land, ad-measuring 7 bighas and 7 biswas of land which was duly registered vide sale deed Ex.PW1/2 which was got registered in the name of the plaintiff vide registered sale deed dated 02.04.1981 Ex.PW1/2. He has further argued that Shri Manmohan Singh Bhadauria has decent regular income as he was a Development Officer and before that during 1957 till 1961, he was an Agent of LIC and that this fact had even been admitted on behalf of the defendants.
21. He has further argued that plaintiff visited India in December 2003 to see his old age ailing mother and that is why limited power of attorney was executed on 01.01.2004 in favour of defendant no.1 only for khasra no.45/12 and not for entire property. He has further argued that forgery has been committed in the power of attorney to show that the Raj Kumar Bhaduria vs Jagdish S Bhaduria 10 of 19 power of attorney has been given for entire land mentioned therein, however, the document prima facie show that some words have been typed lateron. He has argued that no where it has been written in para no.2 that plaintiff has given power of attorney for the entire 8 bighas of land. He had only mentioned that he is the owner of 8 bighas of land as reveals from certified copy of said power of attorney as Ex.PW1/3. He has argued that upon comparison of Ex.PW1/3 and Ex.DW1/11, it is clear that there is tampering in the document Ex.DW1/11 which was used by defendant nos.1 and 2 to execute the sale deed and that the same is the main instrument to execute the sale deed dated 12.04.2006 and hence, defendant no.1 has committed criminal breach of trust and misappropriated the property of plaintiff by using forged and fabricated documents.
22. Ld counsel for the plaintiff has further argued that PW5 Chattar Singh has proved on record the DL No.P09012003283406 Ex.PW5/B which is in the name of one Shri Prabhakar Singh and that the said DL was used for identity of defendant no.1 in the office of Sub Registrar for execution of sale documents in favour of defendant no.2 and hence, the sale documents dated 12.04.2006 executed by defendant no.1 in favour of defendant no.2 are liable to be declared null and void as defendant no.1 was never authorized by the plaintiff to execute title documents in favour of anyone for the whole land.
23. Per contra, learned counsel for the defendant nos.1&2 has argued that first of all, the present suit is liable to be Raj Kumar Bhaduria vs Jagdish S Bhaduria 11 of 19 dismissed as per Section 5 of Indian Evidence Act read with Order III Rule 1&2 CPC since the plaintiff has not stepped into the witness box to prove his case. She has argued that it is only power of attorney who examined himself and who had no personal knowledge of the document in question i.e. Ex.PW1/3 and Ex.DW1/11. She has referred to the statement of PW6 on this point who has stated that power of attorney Shri Kedar Singh Bhaduria was not present during execution of the above said two documents before the Sub Registrar on 01.01.2004 and it is only the plaintiff and the witnesses who were present before the Sub Registrar.
24. Learned counsel for the defendant nos.1&2 has further argued that defendant no.1 was the eldest of the five siblings having the burden of feeding the whole family of seven people since the earning of their late father was not adequate, that in the year 1964, defendant no.1 had left for Canada and at that time, plaintiff was only 2-3 years old, that defendant no.1 had started remitting money to his father for the maintenance of whole family and that over the years, defendant no.1 also started remitting money to his father to buy property in Delhi for the family to reside and a property in which defendants wanted to open a school and that in the year 1981 the land in question was purchased in the name of plaintiff who was 18 years old at that time as defendant no.1 was not available in India. Ld counsel has relied upon the cheques Ex.DW1/2 to Ex.DW1/6 besides counter foils of said cheques as Ex.DW1/7 to Ex.DW1/9 to prove remittance of money to his father. She has further argued that when defendants asked the plaintiff Raj Kumar Bhaduria vs Jagdish S Bhaduria 12 of 19 to transfer the suit property in the name of defendant no.1, he executed a notarized power of attorney dated 10.08.1991 Ex.DW1/10 in favour of defendant no.1 and executed power of attorney dated 01.01.2004 Ex.DW1/11.
25. Ld counsel for defendants has further argued that there was no occasion for the defendants to tamper with the power of attorney since no benefit would accrue to defendant no.1, that power of attorneys Ex.DW1/11 were typed in a manual typewriter and that it is only plaintiff who had handed over a tampered power of attorney.
26. I have considered the rival contentions of the parties including the written arguments filed on behalf of the parties. My issue wise findings is as follows :
ISSUE No.4
4.Whether the suit is time barred and is not maintainable? ...........OPD
27. Onus to prove this issue was upon the defendants. As per plaint, cause of action had arisen in favour of the plaintiff on 12.04.2006 when the defendant sold the land in question to his wife, defendant no.2, it again arose on 27.06.2006 when the said land was mutated in favour of defendant no.2 on 27.06.2006 and again arose in July 2006 when the plaintiff learnt of the alleged illegalities committed by defendant no.1. The present suit had been instituted on 07.05.2007 i.e. within the period of limitation.
Raj Kumar Bhaduria vs Jagdish S Bhaduria 13 of 19
28. During his examination in chief by way of affidavit, defendant no.1 has testified that plaintiff has no cause of action to file the present suit as he is neither the lawful owner of the suit property nor has paid the consideration amount for the purchase of the same. However, admittedly, the suit property was purchased by the father of the plaintiff and defendant no.1 in the name of the plaintiff and the dispute between the parties is qua ownership and hence, it can not be said that no cause of action had arisen in favour of the plaintiff for filing the suit nor the same is barred by limitation as separate issues have also been framed qua reliefs claimed by the plaintiff by way the present suit. Defedants have not been able to prove this issue that the present suit is barred by limitation. Hence, the issue no.4 is decided accordingly in favour of the plaintiff.
ISSUE No.5
5.Whether the suit has been properly valued for the purpose of court fee and jurisdiction?
...........OPP
29. Onus to prove this issue was upon the plaintiff.
Plaintiff has assessed the court fees for the reliefs of jurisdiction, declaration, possession and injunction and has filed the appropriate court fees. Plaintiff has not been cross examined on this point at all. Even no arguments have been advanced on behalf of the defendants on this issue. Hence, the present issue is decided in favour of the plaintiff and against the defendants.
Raj Kumar Bhaduria vs Jagdish S Bhaduria 14 of 19 ISSUE No.3
3.Whether the suit filed by the plaintiff is not maintainable as the same has been filed on the basis of invalid Power of Attorney? .....OPD
30. Onus to prove this issue was placed upon the defendants. Defendant no.1 during his statement as DW1 has testified in para 20 of his examination in chief by way of affidavit Ex.D1 that the present suit is not maintainable because the same has been filed with the illegal and invalid power of attorney. I find force in the arguments of Ld counsel for the defendants that the power of attorney Ex.PW1/1 got executed overseas must be countersigned by the authorities in overseas jurisdiction and only thereafter it is recognized in the court of law in India. I am further in agreement with the arguments advanced on behalf of the defendants that the power of attorney executed in favour of defendant no.1 by the plaintiff is irrevocable and still existing.
31. During cross examination of DW1, no question was put to the witness regarding power of attorney Ex.PW1/1 nor any suggestion was put to this witness DW1 that the Ex.PW1/1 was a legal and valid power of attorney, nor it was suggested to the witness that he has deposed falsely during his examination in chief by way of affidavit Ex.D1 that the present suit is not maintainable because the same has been filed with the illegal and invalid power of attorney.
Raj Kumar Bhaduria vs Jagdish S Bhaduria 15 of 19
32. Further, during the course of arguments, learned counsel for defendant nos.1 and 2 has placed reliance upon the judgment in Civil Appeal Nos.147-148/2001 titled Man Kaur (dead) by L.Rs vs Hartar Singh Sangha delivered by Hon'ble Apex Court and Nagarathnamurthy Vs Sri S Narayanappa, dead through L.Rs of Hon'ble High Court of Karnataka to buttress her arguments. Though, it has been held in the case of Man Kaur (supra) that an attorney can file a suit, however, it has been also held that the attorney can depose about the facts within his knowledge only.
33. Further, para 13 of judgment of Nagarathnamurthy's case following the judgment of Hon'ble Apex Court in In Janki Vashdeo Bhojwani vs Indusind Bank Limited, 2005 (2) SCC, 217, has held as under :
"13.It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III Rules 1 and 2 CPC, empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power of attorney has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined".
Raj Kumar Bhaduria vs Jagdish S Bhaduria 16 of 19
34. Further, in case of Narasimha vs S.P. Sridhar, ILR 2014 Kar.84, it has been held by his lordship as under :
"6.Parties to a suit or proceeding are permitted to give evidence within the limits prescribed by S.5 of the Indian Evidence Act, 1872. A power of Attorney holder of a party can be examined as a witness like any other witness, if he is competent in law to testify to the existence or non existence of any fact in issue in any suit or proceeding or of such other facts as are declared to be relevant under the provisions of the Evidence Act, if such facts are within his personal knowledge, but he can not appear as a witness in the capacity of that party i.e. himself as the plaintiff or the defendant. When and to what extent a power of attorney holder could give evidence is explained by the Hon'ble Apex Court in Man Kaur vs Hartar Singh Sangha"
35. In view of the above, I find force in the submissions of learned counsel for the defendant nos.1 and 2 that the attorney of the plaintiff can only depose the facts within his knowledge and he can not be permitted to go beyond the scope of Order III Rules 1 and 2 CPC, as discussed hereinabove. Hence, issue no.3 is decided against the plaintiff and in favour of the defendants.
ISSUE Nos.1 and 21.Whether the sale deed dated 12.04.2006 in respect of the lands in New Khewat No.232/2, Khasra No.45/8/2(1)-2); having 1 Bigha 1 biswas of land and in Khasra No.45/12/2; (2)-
17) 2 Bighas and 17 Biswas of land and in Raj Kumar Bhaduria vs Jagdish S Bhaduria 17 of 19 Khasra No.45/13/1, (3-11) admeasuring about 7 Bighas and 10 Biswas of land situated in Village Chhawala, Tehsil Najafgarh, Bijwasan Road, District Delhi through General Power of Attorney (GPA) of defendant No.1 in favour of defendant No.2 dated 12.04.2006 is illegal, void, nonest and liable to be cancelled? ...OPP
2.Whether the plaintiff is entitled for a decree of possession of said land being the owner of the same, as claimed? ...........OPP
36. Onus to prove issue nos.1 and 2 was upon the plaintiff and plaintiff has relied upon the evidence adduced on record to prove these issues. However, in view of my findings on issue no.3 above, plaintiff is not entitled to the relief claimed by way of the present suit.
37. The argument on behalf of plaintiff that upon comparison of Ex.PW1/3 and Ex.DW1/11, it is clear that there is tampering in the document Ex.DW1/11 which was used by defendant nos.1 and 2 to execute the sale deed and that the same is the main instrument to execute the sale deed dated 12.04.2006 and hence, defendant no.1 has committed criminal breach of trust and misappropriated the property of plaintiff by using forged and fabricated documents can not be entertained as the fact of forgery has not been proved in accordance with law.
38. Further certain contradictions have been pointed out in the statement of DW1 and DW2 which are not relevant for the reason that plaintiff himself has not been able to prove his claims as per law and has not stepped into the Raj Kumar Bhaduria vs Jagdish S Bhaduria 18 of 19 witness box himself in support thereof.
39. Since, the claims of the plaintiff have not been proved in accordance with law, I do not find any merit in the present suit.
40. In view of the above, issues nos.1 and 2 are decided against the plaintiff.
RELIEF
41. In view of my findings on issues nos.1,2 and 3 above, the suit of the plaintiff is dismissed with costs.
42. Decree Sheet be prepared accordingly.
43. File be consigned to Record Room after due Digitally signed completion. RAJ by RAJ RANI MITTRA RANI Announced in the open court MITTRA Date:
2018.12.06 14:44:06 +0530 on 03.12.2018 (RAJ RANI MITTRA) ADJ-04/SW/DWARKA NEW DELHI/03.12.2018 Raj Kumar Bhaduria vs Jagdish S Bhaduria 19 of 19