Delhi District Court
Lal Mani Jain vs Avtar Singh on 1 April, 2026
THE COURT OF DISTRICT JUDGE-03
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: ATUL AHLAWAT, DHJS)
CNR No. DLSE01-001786-2016
RCA DJ No. 20307/2016
In the matter of:
Smt. Lal Mani Jain, deceased through:
I. Ram Pat Sahani Jain (husband of the deceased)
R/o 427, Old Mehrauli Road, Badarpur, New Delhi
II Vinod Kumar Jain S/o late Smt. Lal Mani Jain,
R/o 427, Old Mehrauli Road, Badarpur, New Delhi
III. Hans Kumar Jain S/o late Smt. Lal Mani Jain,
(since deceased ) through his LRs
a. Smt. Asha Jain
W/o late Sh. Hans Kumar Jain
b. Sh. Arun Kumar Jain
S/o late Sh. Hans Kumar Jain
c. Sh. Rahul Jain
S/o late Sh. Hans Kumar Jain
d. Sh. Divyans Jain
S/o late Sh. Hans Kumar Jain Digitally
signed by
Atul Ahlawat
Atul Date:
CNR No. DLSE01-001786-2016 Ahlawat
Lal Mani Jain Vs. Avtar Singh & Anr. 2026.04.01
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e. Ms. Renu Jain
D/o late Sh. Hans Kumar Jain
All R/o D -9, Vishvakarma Colony,
Lal Kuan, MB Road, Delhi - 110044
IV. Dhanesh Kumar Jain S/o late Smt. Lal Mani Jain,
R/o 427, Old Mehrauli Road, Badarpur, New Delhi
V Ajay Kumar Jain S/o late Smt. Lal Mani Jain
R/o 427, Old Mehrauli Road, Badarpur, New Delhi
VI Shashi Bala W/o Sh. Subhash Chand Jain
D/o late Smt. Lal Mani Jain
R/o E -1, Krishna Park, Deoli Road, Khanpur, New Delhi.
VII Smt. Urmila Jain W/o Sh. Hans Kumar Jain
D/o late Smt. Lal Mani Jain
R/o 1/10785, Panchsheel Garden, Main Road,
Subhash Park, Shahdara, Delhi
..... Appellants
VERSUS
1. Avtar Singh (since deceased, through his LRs)
I. Mange Ram @ Mangu Singh @ Balwinder Singh
S/o late Sh. Avtar Singh
Digitally signed
Atul by Atul Ahlawat
Date:
CNR No. DLSE01-001786-2016 Ahlawat
Lal Mani Jain Vs. Avtar Singh & Anr.
2026.04.01
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II. Smt. Palo Kaur W/o Sh. Pritam Singh
D/o late Sh. Avtar Singh
III. Indro Kaur
D/o late Sh. Avtar Singh
All R/o H.No. 369, Village Jaitpur,
New Delhi - 110044
IV. Inder Kaur @ Ravinder Kaur
R/o Village Kalwari, P.O.Subji,
District Karnal, Haryana
2. Puran Singh S/o Ganesh Singh (since deceased through LRs)
I. Smt. Surjeet Kaur
W/o late Sh. Puran Singh
II. Man Mohan Singh
S/o late Sh. Puran Singh
III. Manjeet Singh
late Sh. Puran Singh
IV. Smt Prem Kaur
W/o late Sh. Puran Singh
D/o late Sh. Puran Singh
Digitally
signed by
Atul Ahlawat
Atul Date:
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V. Smt. Rano Kaur
W/o Balbir Singh
D/o late Sh. Puran Singh
All R/o 195, Village Jaitpur, New Delhi
.....Respondents
Date of Institution : 27.04.2016
Arguments concluded : 07.03.2026
Date of decision : 01.04.2026
Result : Partly Allowed
APPEAL UNDER SECTION 96 R/W ORDER XLI OF THE CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 10.03.2016 PASSED BY THE COURT OF
LEARNED CIVIL JUDGE-04, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI IN CIVIL SUIT NO. 158/2013 TITLED
AS 'SMT LAL MANI JAIN VS. SH. AVTAR SINGH & ORS'.
JUDGMENT
(Pronounced on 1st day of April, 2026)
1. Vide this Judgment, I shall decide the appeal under Section 96 r/w Order XLI of the Code of Civil Procedure, 1908 against the judgment and decree dated 10.03.2016 passed by the court of Learned Civil Judge - 04, Central District, Tis Hazari Courts Delhi.
2. This appeal has been preferred against the impugned order dated 10.03.2016 passed by the Ld. Trial Court, wherein the suit for specific performance and for recovery of Rs. 70,000/- was dismissed. Digitally signed by Atul Ahlawat Atul Date:
Ahlawat 2026.04.01
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Case of the appellant/plaintiff before the Ld. Trial Court
3. As per the appellant, the respondent no. 1 was the owner of the land comprised in Khasra No. 78, admeasuring 4 bigha and 16 biswa situated in the revenue estate of village Jaitpur, Tehsil Mehrauli, New Delhi and the appellant and respondent no. 1 entered into Agreement to Sell (ATS) dated 18.10.1985, Ex. PW 1 /2, wherein it was agreed between the parties that the appellant shall pay total sale consideration of Rs. 70,000/- to the respondent no. 1 and out of the said sale consideration, an amount of Rs. 18,000/- was paid to the respondent no. 1 as part-payment. The respondent no. 1 duly issued a receipt Ex. PW 1/3, wherein he had admitted and acknowledged the payment received by him and the possession of the suit property was handed over to the appellant.
4. As per the terms of the ATS, Ex. PW 1 /2, the remaining sale consideration i.e. Rs. 52,000/- was supposed to be paid by the appellant within 3 years from the date of the execution of the ATS and in the meanwhile the respondent was to obtain the NOC and was supposed to get the sale deed registered in the name of the appellant or her nominee(s).
5. The appellant paid the balance sale consideration in five installments between 25.03.1986 to 03.06.1987 and the respondent no.1 acknowledged the receipt of the said payments by executing the receipts Ex. PW 1/ 4 to Ex. PW 1/ 7.
Digitally
signed by
Atul Ahlawat
Atul Date:
Ahlawat 2026.04.01
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6. As per the appellant, although the respondent no. 1 had received the entire sale consideration, however, with an ulterior motive and with malafide intent, he had executed the sale deed pertaining to the suit property in favour of the respondent no. 2. The respondent no. 2 always had knowledge and notice of the ATS executed between the appellant and the respondent no.1.
7. The appellant filed the suit before the Ld. Trial Court seeking specific performance of the ATS, Ex.PW 1/ 2 and the said suit was filed on 08.10.1987, i.e. within the prescribed period of limitation.
8. After the suit was filed before the Ld. Trial Court, vide order dated 14.10.1987, the Ld. Trial Court directed the parties to maintain the status quo.
Case of the defendant no. 1/respondent no.1 before the Ld. Trial Court :
9. The respondent no. 1 was earlier proceeded ex-parte, however, later on upon his application moved under Order IX Rule 7 CPC, 1908, the ex-parte order was set aside on 16.08.1988 and he filed his WS on 29.09.1988, wherein he categorically denied the execution of the ATS, Ex. PW 1/ 2 and issuance of the receipts Ex. PW 1/ 3 to Ex. PW 1/7. Furthermore, the respondent no.1 also denied execution of the Sale Deed with the respondent no. 2 and he claimed that he was still having the ownership and was in possession of the Digitally signed by Atul Lal Mani Jain Vs. Avtar Singh & Anr. Atul Ahlawat CNR No. DLSE01-001786-2016 Page 6 of 30 Date:
RCA DJ No. 20307/2016 Ahlawat 2026.04.01 14:48:53 +0530 entire land comprised in Khasra No. 78 of village Jaitpur. He further denied all the averments made in the plaint.
10. In the year 1991, the respondent no. 1 had expired and his LRs were impleaded on 05.11.1994.
Case of the defendant no.2/respondent no.2 before the Ld. Trial Court:
11. The respondent no. 2 had taken the stand that he had purchased a different portion of land from the respondent no. 1, vide registered Sale Deeds. He had categorically denied that the land purchased by him was the same land qua which the respondent no. 1 had earlier executed the ATS, Ex. PW 1/ 2 with the appellant.
12. The respondent no. 2 had further stated in his WS that the portion of the land belonging to the respondent no. 1, which the subject matter of the present suit was already divided into various small plots by the appellant and the respondent no.1. Furthermore, he admitted that the possession of the land which was subject matter of the ATS was with the plaintiff, however, he was in the possession of the remaining portion, which was purchased by him from respondent no. 1.
Issues framed before the Ld. Trial Court :
13. On the basis of the pleadings, vide order dated 10.08.2005, following issues were framed by the Ld. Trial Court :
Digitally signed by Atul Atul Ahlawat Ahlawat Date:
2026.04.01 14:48:58 CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Page 7 of 30 +0530 RCA DJ No. 20307/2016 I. Whether the defendant no. 1 agreed to sell the property to the plaintiff ? OPP II. Whether the defendant no. 2 purchased the property without notice of the agreement between the plaintiff and the defendant no. 1 ? OPD III. Whether the plaintiff was ready and willing to perform his part of the agreement ? OPP IV. Whether the Sale Deed executed by defendant no. 1 in favour of defendant no. 2 has any effect on the right of the plaintiff ? OPD V. Relief ?
14. During the proceedings before the Ld. Trial Court, the husband of the appellant Sh. Rampat Sahai was examined as PW1 and he gave the evidence on behalf of the appellant, since the appellant was suffering from various ailments and she had executed SPA dated 10.11.1996, Ex. PW 1/ 1 in the favour of PW1. The ATS Ex. PW 1/ 2 and the receipts Ex. PW 1/3 to Ex. PW 1/7, were brought on record through the testimony of PW1.
15. The respondent no. 1 did not cross-examine the PW1 Sh.Rampat Sahai and he was already proceeded ex-parte, however, respondent no. 2 conducted a detailed cross-examination of PW1 Sh.Rampat Sahai.
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16. Thereafter, the respondent no. 2 produced two witnesses i.e. defendant no. 2 himself as DW1 and DW2 Sh. Puran Singh.
During the testimony of DW1, the two sale deeds dated 17.07.1987 executed by the respondent no. 1 in favour of respondent no. 2 were brought on record as Ex. DW 1/1 and Ex. DW 1/2, respectively. The Jamabandhi was brought on record as Ex.DW 1/3 and the Khasra Girdawari was brought on record as Ex. DW 1/ 4. It was further deposed by DW1 that the Sh.Rampat Sahai, husband of the appellant, along with his associates namely Sh. Ghasiram and Sh. Rajender further sold the land bearing 2 bighas and 8 biswas by carving out plots through the respondent no.1.
17. Both the DW1 and DW2 were discharged without their cross-examination being conducted on behalf of the appellant.
18. Vide judgment and decree dated 10.08.2005, the Ld. Trial Court dismissed the suit of the appellant primarily on the grounds that the appellant did not appear in the witness box herself and on her behalf, her husband Sh.Rampat Sahai holding the Power of Attorney had appeared and deposed as PW1. Furthermore, the appellant could not prove the execution of the documents Ex. PW1/ 2 to Ex. PW 1/7. The testimony of DW1 and DW2 were unchallenged and unrebutted, since they were not cross-examined by the appellant, thereafter, it was held that the respondent no. 2 was not aware of the ATS Ex. PW 1/ 2, which was allegedly executed between the appellant and the respondent no. 1.
Digitally
signed by
Atul Ahlawat
Atul Date:
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19. The aforementioned judgment and decree dated
10.08.2005 was challenged by the appellant vide referring an appeal bearing RCA No. 21/2005. Vide judgment dated 23.11.2006, the Ld. Appellate Court had set aside the impugned judgment and decree dated 10.08.2005 and matter was remanded back to the Ld. Trial Court, wherein it was directed that two opportunities shall be granted to the appellant to produce the attesting witnesses of the ATS Ex. PW 1/ 2, at the responsibility of the appellant and two opportunities were also granted to the appellant to cross-examine DW 1 & DW2 and the respondent no. 2 was directed to produce both the said witnesses on the date fixed by the Ld. Trial Court.
20. The parties were directed to appear before the Ld. Trial Court on 05.12.2006 and thereafter on 25.10.2007, the appellant produced PW2 Sh. Ghasiram and PW3 Sh. Sonu, to prove the execution of the ATS Ex. PW 1/ 2 and the receipt Ex. PW 1/3. The PE was closed and the appellant was granted the opportunity to cross- examine the DWs.
21. On 03.06.2009, the appellant had expired and vide order dated 07.08.2013, the LRs of the appellant were impleaded in place of the appellant. Thereafter on 05.10.2013, even the respondent no. 2 had expired and his LRs were impleaded on 26.11.2014.
22. The Ld. Trial Court directed the LRs of respondent no. 2 to produce the DW1 and DW2 for their cross-examination, however Digitally signed by Atul Ahlawat Atul Date:
CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Ahlawat Page 10 of 30 2026.04.01 RCA DJ No. 20307/2016 14:49:14 +0530 since the respondent no. 2 failed to produce the said witnesses, the DE was ultimately closed.
23. Vide the impugned judgment and decree dated 10.03.2016, the Ld. Trial Court dismissed the suit of the appellant, wherein although qua issue no. 1, it was held that the appellant had proved that ATS Ex.PW 1/ 2 was duly executed between her and the respondent no.1, however the issue no. 2 with respect to the prior notice of respondent no. 2 of the existence of ATS Ex. PW 1/ 2 was decided against the appellant. The third issue with respect to readiness and willingness of the appellant to perform her part of the agreement was decided against the appellant. The issue with respect to the impact of the sale deeds executed between the respondent no. 1 and respondent no.2 upon the rights of the appellant was also decided in favour of the appellant. However, the appellant was denied the ultimate relief of specific performance or the recovery of Rs. 70,000/- as damages, on the ground that no issue with respect to the grant of damages was ever framed, but the Ld. Trial Court in order to dispose of the said issue went on to hold that since the appellant could not prove the payment of Rs. 70,000/- to the respondent no. 1 and neither she proved the ownership of respondent no. 1 with respect to the land which was allegedly agreed to be sold vide ATS Ex. PW 1/ 2 nor the appellant proved that the said portion was the entire land of the respondent no.1. The Ld. Trial Court then placed the reliance on the provision of Section 34 & 45 of the Delhi Land Reforms Act, whereby it was held that the alleged transfer vide ATS Ex. PW 1/ 2 was itself void and thus not enforceable. Furthermore since the appellant failed to prove her readiness and willingness to perform her Digitally signed by Atul Ahlawat CNR No. DLSE01-001786-2016 Atul Page 11 of 30 Lal Mani Jain Vs. Avtar Singh & Anr. Date:
RCA DJ No. 20307/2016 Ahlawat 2026.04.01 14:49:20 +0530 part of the contract, therefore, she was not entitled to the relief of specific performance.
24. As far as the relief with respect to the damages was concerned, it was held by the Ld. Trial Court that although the appellant had claimed that she had paid an amount of Rs. 70,000/- to the respondent no.1, however, she could not prove the payment of amount beyond Rs.18,000/-. Furthermore, since the appellant herself was in possession of the land in question and she had enjoyed the possession ever since the execution of the ATS Ex. PW 1/2, and in absence of proof regarding the entire payment of Rs. 70,000/-, the Ld. Trial Court did not deem it fit to award any damages to the appellant.
25. During the pendency of the appeal, the respondents were duly served, however since no one appeared on their behalf, they were proceeded ex-parte. The ex-parte oral arguments were advanced by Sh. R.S.Verma, Ld. counsel for the appellant.
26. The TCR was requisitioned and same was perused carefully.
27. Amongst the other grounds raised by the appellant, the primary grounds for assailing the impugned judgment and decree are enumerated as under :Digitally signed by Atul
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27.1 The impugned judgment is contrary to law and facts.
There is no material on record to disbelieve the unchallenged testimony of the husband of the appellant. The impugned judgment has been passed capriciously and without appreciating the evidence adduced by the appellants.
27.2 Because the impugned judgment is perverse and unsustainable. It is submitted that the defendants/respondents opted to stay out of the Court and despite affording various opportunities did not adduce any evidence in rebuttal. It is further submitted that mere making allegations would not take the place of proof. The respondents failed to substantiate the contentions raised by them in their written statement.
27.3. Because the Learned Trial Court did not assign any cogent or acceptable reason to discard the testimony of the appellants.
27.4 Because issue no. 1 which reads, "whether the defendant no.1 agreed to sell the property to the plaintiff ? OPP" was decided in favour of the plaintiff and against the defendant no.
1. Therefore, the defendant no. 1 was under legal obligation to perform the term incorporated in the agreement Ex. PW 1/ 2, but the defendant no.1 failed to perform his part of the contract. The issue no. III was wrongly decided against the plaintiff without any convincing reason. It is reiterated that that the defendant no.1 did not adduce any evidence and civil litigations is to be decided on the basis of preponderance of probabilities. The plaintiff categorically deposed that the entire sale consideration amount was paid to defendant no.1 and the Digitally signed by Atul Atul Ahlawat Date:
Ahlawat 2026.04.01 14:49:32 CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Page 13 of 30 +0530 RCA DJ No. 20307/2016 receipts were proved but the defendant no. 1 did not appear in the witness box to rebut the testimony of the plaintiff.
27.5 Because the impugned judgment suffers from serious legal infirmities which has resulted into miscarriage of justice.
In the para pertaining to 'relief' the Ld. Trial Court has travelled beyond the pleadings and focused the judgment outside the case pleaded by the parties. The Ld. Trial Court erred in holding that the agreement of sale Ex. PW 1/ 2 was not enforceable on the ground that the suit land is governed by the provisions of Delhi Land Reforms Act. This is patently an illegal and erroneous finding of the Trial Court. The finding of the trial court that agreement Ex. PW 1/2 is hit by Section 33 of Delhi Land Reforms Act is feigned and in utter disregard of law and facts. There is no material on record to suggest that suit land is governed by the provision of Delhi Land Reforms Act. As a matter of fact, the suit land is governed by the provisions of Punjab Land Revenue Act. Had the Trial Court before rendering the impugned judgment sought clarification on this point, the perverse findings would have been otherwise. The impugned judgment violates the norms of natural justice as no opportunity was afforded to the appellant to place on record material thereby suggesting that provisions of Punjab Land Revenue Act are applicable to the suit land. However, to substantiate the contention of the appellants, the appellants are annexing copy of Jamabandi and Khasra girdawari and those reveal that land in suit is governed by the provisions of Punjab Land Revenue Act and not by the provisions of Delhi Land Reforms Act.
Digitally signed Atul by Atul Ahlawat
Date:
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27.6 Because the impugned judgment is bad in law and suffers from serious legal flaws. The Ld. Trial Court focussed the judgment under appeal outside the pleadings. It is settled legal proposition that the decision of a case cannot be based on ground outside the pleadings.
27.7 Because the Ld. Trial Court ought to have decided issue no.2 and 4 in favour of the plaintiff. The reasons assigned by the Ld. Trial Court are unsustainable.
27.8 Because the judgment under appeal is liable to be set aside being illegal and based on conjectures and surmises.
28. It is submitted by Ld. counsel for the appellant the Ld. Trial Court had failed to ignore the records of the present case, wherein it had ignored the Sale Deeds Ex. DW 1/ 1 and Ex. DW 1/ 2, on the ground that said Sale Deeds were not brought on record by the appellant. The Ld. Trial Court ignored the decision of the Hon'ble Supreme Court of India and the Hon'ble High Courts, wherein it was held that the documents filed by one party, can be relied and used by the other party, even if the party bringing the said documents on record could not submit its witnesses for cross-examination and the evidence of the said witnesses was not considered due to the said reason.
29. It is further submitted by the Ld. counsel for the appellant that the Ld. Trial Court had failed to appreciate that PW1 Sh. Sampat Sahai had categorically deposed in his examination in chief that the respondent no. 2 Sh. Puran Singh had complete Digitally signed by Atul Ahlawat CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Atul Page 15 of 30 Date:
RCA DJ No. 20307/2016 Ahlawat 2026.04.01 14:49:43 +0530 knowledge about the ATS Ex. PW 1 /2, executed in her favour by the respondent no.1. The respondent no.1 did not conduct any cross- examination of the said witness and even in the cross-examination conducted on behalf of respondent no.2, he could not rebut the said deposition and in fact, no suggestion was given to PW1 with respect to the respondent no.2 not having any knowledge of the said ATS Ex. PW 1/ 2. The Ld. Trial Court failed to ignore the basic law of evidence that if the averments in the evidence affidavit/examination in chief by viva-voce are not cross-examined and they stand unrebutted, then they are deemed to be admitted. The initial onus was on the respondent no.2 to deny the knowledge of the execution of the ATS Ex. PW 1/ 2, however the said onus was not discharged by the respondent no.2 in the facts of the present case. Therefore, the findings of the Ld. Trial Court wherein it is recorded that the appellant could not prove the circumstances which shows that the respondent no. 2 had the notice of the said ATS, is erroneous and deserves to be set-aside.
30. It is further submitted by the Ld. counsel for the appellant that the Ld. Trial Court had given the perverse finding with respect to the identity of the suit property, since it failed to ignore the categorical testimony of PW1 Sh. Sampat Sahai and the pleadings, wherein the exact particulars of the suit property were duly mentioned. The ATS was duly brought on record as Ex. PW 1/ 2 and the said ATS duly contained the exact details including the boundaries and the surrounding properties by which the suit property was bound. There is a clear deposition of PW1 that after the ATS was executed, the same property was sold by the respondent Digitally no.1 to the signed by Atul Atul Ahlawat Date:
CNR No. DLSE01-001786-2016 Ahlawat 2026.04.01 Page 16 of 30 Lal Mani Jain Vs. Avtar Singh & Anr. 14:49:49 RCA DJ No. 20307/2016 +0530 respondent no.2. The respondents had further violated the status quo order dated 14.10.1987 by raising the boundry wall over the suit property and carving out of the plots from the said land. The Ld. Trial Court also ignored the applications filed by the appellant u/o XXXIX rule 2 (A) CPC, 1908, dated 11.04.1998 and 16.04.1999.
31. It is further submitted by the Ld. counsel for the appellant that the Ld. Trial Court had completely failed to appreciate that in a suit seeking decree of specific performance, once the vendor denies the execution of the agreement itself, then it cannot raise the plea that the vendee was not ready and willing to perform his/her obligations under the said agreement. In the present case, the plaint and the deposition of PW1 Sh. Sampat Sahai clearly reflects that the appellant had duly paid the entire consideration amount of Rs. 70,000/- to the respondent no.1, therefore the finding given by the Ld. Trial Court that the appellant could not prove the readiness and willingness is not sustainable in the eyes of law and same deserves to be set-aside.
32. It is further submitted by the Ld. counsel for the appellant that the Ld. Trial Court had given the perverse finding, wherein it was held that the appellant could neither prove the ownership of respondent no. 1 with respect to the suit property nor could the said suit property was capable of alienation, since the suit land was governed by the provisions of the Delhi Land Reforms Act, 1954 and the ATS Ex.PW 1/ 2 is itself void and not enforceable. The Ld. Trial Court had failed to appreciate that the provisions of 33 and Digitally signed by Atul Atul Ahlawat Date: CNR No. DLSE01-001786-2016 Ahlawat Lal Mani Jain Vs. Avtar Singh & Anr.
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45 of the Delhi Land Reforms Act, 1954 were not applicable, since, the suit land was governed under the provisions of Punjab Tenancy Act, 1887 and the Ld. Trial Court had not framed any issue with respect to the applicability of the said Act and no objection in this regard was taken by the WS filed by the respondents. The Ld. Trial Court had adjudicated the said factual issue, without formally framing the issue and without granting the opportunity to the parties to lead the evidence on the said issue. Therefore, the decision of the Ld. Trial Court is based upon its own observations, which were never allowed to be cross-examined by the parties. Therefore, the said decision is contrary to the well-established cannons of law.
33. It is further submitted by the Ld. counsel for the appellant that the Ld. Trial Court had wrongly observed that the appellant was not entitled to the relief of specific performance since, she could not prove her readiness and willingness and it was also wrongly concluded that since the plaintiff was in possession of the suit land and same was being enjoyed by her, therefore, she was not entitled to the relief of damages. While giving the said observation, the Ld. Trial Court had failed to appreciate the fact that after the status quo order dated 14.10.1987 was passed, the respondents had illegally dispossessed the appellant from the suit land by taking law in their own hands. Even after filing of the application u/o XXXIX rule 2 A CPC, 1908, the said applications were never adjudicated by the Ld. Trial Court.
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34. In support of the submissions made by the ld. counsel for appellant, the ld. counsel had placed reliance on the decisions of Hon'ble Supreme Court of India in "Lala Durga Prasad Vs. Lala Deep Chand" AIR 1954 SC 75 (FB), "Dwarka Prasad Singh Vs. Harikant Prasad" AIR 1973 SC 655 (FB), "P.Ramasubbamma Vs. V.Vijaylakshmi " AIR 2022 SC 1793 , "Lalchand Vs. Tekchand "
(2013) 5 RCR (Civil) 104; Lavanya C. & Anr. Vs. Vittal Gurudas Pai Since Deceased by LRs & Ors. AIR 2025 SC 1565 and the decisions of Hon'ble High court of Delhi in " C 4 s Secure Soloution (India) Pvt. Ltd. Vs. Group 4 Securatas Karamchari Sangh (regd.) 2015 (225) DLT 56, "Vinay Rai Vs. Anil Rai" (2010) VII AD (Delhi) 769, "Sharma Enterprises Vs. Hotel Leela Venture Ltd." 159 (2009) DLT 60, "Nirmala Devi Vs. Niranjan Singh" AIR 2007 Delhi 264 ; the decision of Hon'ble High Court of Punjab and Haryana in "Nasib Kaur Vs. Avtar Singh" (2015) 4 LAR 453, "Nachhatar Singh Vs. Angrej Singh" RSA 613/2010 (O&M), date of decision 21.02.2012 ;
Nirmal Kaur Vs. Simarjit Kaur & Ors. (2015) 4 RCR (Civil) 605 the decision of Hon'ble High Court of Allahabad in "Mohammad Yaqub Vs. Shabbir" (2007) 2 All LJ 73; the decision of Hon'ble High Court of Kerala in "Abdulla Vs. Ismalutty Master" (2018) 4 ILR (Kerala) 899 and "R.Prasad Vs. Travancore Devaswom Board" (2018) 1 Civil LJ 464; the decision of Hon'ble High Court of Himachal Pradesh in "Nirmal Kumar Vs. Kaushalya Devi" (2017) 2 LJR 143.
35. On the basis of the submissions made by the Ld. counsel for the appellant and on the basis of the records of the present case, the following points of determination: Digitally signed by Atul Ahlawat Atul Date:
Ahlawat 2026.04.01 14:50:06 +0530 CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Page 19 of 30 RCA DJ No. 20307/2016 I. Whether the appellant was able to prove the identity of the land in question qua which the ATS Ex. PW 1/ 2 was allegedly executed between her and the respondent no. 1 ?
II. Whether the appellant was able to prove the execution of the ATS Ex. PW 1/ 2 between her and the respondent no.1?
III. Whether the appellant was able to prove the payment of Rs. 70,000/- to the respondent no.1, as claimed by her in pursuance of the ATS Ex. PW 1/ 2?
IV. Whether the respondent no. 2 was the subsequent purchaser of the same land which was subject matter of the ATS Ex. PW 1/ 2?
V. Whether the respondent no. 2 had the prior notice of the ATS Ex. PW 1/ 2?
VI. Whether the appellant is entitled to the relief of specific performance of the ATS Ex. PW 1/ 2 or in the alternative recovery of the amount paid by her to respondent no. 1, if the said amount was proved by her to be paid to respondent no.1 ?
VII. Whether the appellant is entitled to any damages, if yes, from whom ?
VIII Whether the impugned judgment and decree dated 10.03.2016 is liable to be set-aside?
ANALYSIS AND FINDINGS
36. To prove its case the appellant had produced three witnesses namely PW1 Rampat Sahai (husband of the appellant/SPA holder of the appellant), PW2 Ghasi Ram (Attesting witness of the Digitally signed by Atul CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Atul Ahlawat Page 20 of 30 Date:
RCA DJ No. 20307/2016 Ahlawat 2026.04.01 14:50:12 +0530 ATS) and PW3 Sonu Sharma (Son of the Attesting witness of the ATS).
37. Prior to establishing the fact that the respondent no. 1 had executed the ATS, Ex. PW 1/2 in favour of the wife of the PW1, the first and foremost hurdle that appellant had to cross was the identity of the land in question qua which the ATS Ex. PW 1/2 was executed. As per the plaint filed before the Ld. Trial Court in Paragraph no. 2, the appellant had specifically mentioned that she had entered into the ATS Ex. PW 1/ 2 dated 18.10.1985 with respondent no. 1 with respect to "2 Bighas 8 Biswas land comprised of Khasra No. 78, situated in Village Jaitpur, Tehsil Mehrauli, New Delhi" . The similar mention of the total area of the land in question was also contained in the ATS Ex. PW 1/ 2, wherein in addition to the paragraph no. 2 of the plaint, the location of the land being upon the 215' X 108' facing road was mentioned. Furthermore, it was mentioned that on the east side the land was adjacent to the road; on the South it was bound with the land of Ahluwalia Construction Company; on the West it was bound with the property of one Kora Singh; and on the North it was bound by the portion of one Narinder Kumar Sharma.
38. It is the case of the appellant that she had purchased 2 Bighas and 8 Biswas land from the respondent no.1. The appellant never stepped into the witness box and on her behalf, it was her husband and SPA holder Sh. Rampat Sahai, who had stepped into the witness box as PW1 and he had categorically deposed vide his Digitally signed by Atul Ahlawat Atul Date:
CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr.Ahlawat Page 21 of 302026.04.01 14:50:18 RCA DJ No. 20307/2016 +0530 examination in chief, recorded on 01.08.1997, that "my wife had entered into an agreement of sale with Sh. Avtar Singh S/o Sh. Jeet Singh. She agreed to purchase 2 bighas 1 biswas out of khasra no. 70A village Jaitpur Tehsil Mahrauli N.D." (emphasis supplied is mine).
39. Therefore, the PW1 Rampat Sahai had created a serious doubt, not only with respect to the total parcel of land qua which the alleged ATS was executed, however, his testimony had also created serious doubts with respect to the khasra number in which the said property was situating and was agreed to be sold to the appellant. No explanation was offered with respect to the said contradiction in the testimony of PW1 on behalf of the appellant. The Ld. counsel for the appellant has merely submitted that since in the year 1997, it was prior to the amendment in CPC, 1908, the evidence by way of affidavits were not filed and the examination in chief which was recorded through viva-voce and it had typographical errors, since the testimony was typed on the typewritter. The said explanation is devoid of any merits, since the PW1 was cross-examined on 05.07.2001 and during the said cross-examination, there were typographical errors at many as five places, which were duly corrected and initialled by the Ld. Presiding Officer of the Trial Court.
40. The issue of the identity of the suit property is further confounded with the cross-examination of PW1, wherein the Ld. counsel for respondent no. 2 had put a suggestion to the PW1 that the Digitally signed by Atul Ahlawat CNR No. DLSE01-001786-2016 Atul Page Date:22 of 30 Lal Mani Jain Vs. Avtar Singh & Anr.
RCA DJ No. 20307/2016 Ahlawat 2026.04.01 14:50:24 +0530 appellant had filed civil revision against the order passed by the Ld. Trial Court and it was mentioned in the said civil revision before the Hon'ble High Court of Delhi that there was a dispute with regard to the identity of the suit land or that the appellant had filed an application u/o XXVI Rule 9 CPC, 1908 seeking appointment of a Local Commissioner for proper demarcation of the suit land. Although, he admitted filing of the revision petition, however PW1 deposed that he did not remember whether in the said revision petition there was mention of a dispute with respect to the identity of the suit land or the appellant filing any application seeking appointment of the Local Commissioner for demarcation of the suit property.
41. Furthermore, vide order dated 23.03.2000 passed by the Ld. Trial Court upon application moved by the Appellant u/s 151 CPC for issuance of directions to SHO, PS Badarpur to ensure the compliance of the status quo order passed by the Ld. Trial Court and for further direction to the local police, to ensure that the land was not wasted and not carved out in the shape of plots, the Ld. Trial Court had categorically ordered that the appellant had failed to establish the identity of the land for which she was claiming her right and no site plan or other document was filed by her with respect to the identity of the land consisting of 2 bighas and 8 biswas within Khasra No. 78, since both the appellant and respondent no. 2 were claiming ownership of 2 bighas and 8 biswas, however, none of them had established the identity of the portion of land belonging to them within the said khasra.
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Atul Date:
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42. Once the defence of the respondent no.2 came through the WS that he had purchased the separate portion of 2 bighas 8 biswas from the respondent no.1 through 2 separate registered sale deeds dated 17.07.1987 for 1 bigha 4 biswas each, in Khasra No. 78, Village Jaitpur, Delhi and since specific suggestions with respect to the suit property and the land purchased by the respondent no.2 from respondent no.1, were two different parcels of land belonging to the same khasra, then the evidentiary burden had shifted back upon the appellant to clearly establish the identity of the suit property, which she had miserably failed.
43. Since the respondent no.2 had failed to produce his witnesses for cross-examination, the earlier testimony of his witnesses vanishes from the ken of evidence, however, since the registered sale deeds which were earlier brought on record as Ex.DW 1/1 and Ex. DW 1/ 2 were already on the record, then it was open to the appellant to rely upon the said documents if they supported its case. Therefore on this aspect, this Court is in full confirmity with the law laid down by the Hon'ble High Court of Delhi in Vinay Rai (supra) and Sharma Enterprises (supra). However, since there is no site plan attached with the said registered sale deeds and there is no mention of the boundaries of the land in question which was subject matter of the sale deeds Ex. DW 1/1 and Ex. DW 1/ 2, it could not be established even on probabilities that the said sale deeds were with respect to the same piece of land comprising of 2 bighas and 8 biswas in Khasra No. 78, which was the subject matter of the ATS, Ex. PW 1/ 2.
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Atul Ahlawat
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44. Since the appellant had failed to establish from the evidence led by her, and from the records of the case the exact location and identity of the piece of land which was subject matter of the ATS, Ex. PW 1/2, and there was no site plan or demarcation of the land in question, the first point of determination is hereby decided against the appellant and in favour of the respondents. Since, the identity of the suit property was not established, the question of granting the equitable relief of specific performance does not arise.
45. Coming to the second point of determination, i.e. the execution of the ATS Ex. PW 1/2, through the testimonies of PW1, PW2 and PW3, which remained unassailed with respect to the execution of the ATS dated 18.10.1985, therefore, as far as the execution of the document is concerned, this Court is convinced that the appellant had duly discharged her onus. Therefore, on the said aspect, this Court is in full confirmity with the view of the Ld. Trial Court.
46. Since the payment of Rs. 18,000/- out of the total sale consideration of Rs. 70,000/- was recorded in the ATS Ex. PW 1/ 2 itself and it was furhter corroborated by the receipt Ex. PW 1/3, which were all proved through the testimonies of PW1, PW2 and PW3, therefore, it was duly proved by the appellant that she had paid Rs. 18,000/- to the respondent no.1. However, with respect to the other receipts Ex. PW 1/ 4, Ex. PW 1/5, Ex. PW 1/6 and Ex. PW 1/7, the said receipts were merely brought on record, through the testimony of SPA holder of the appellant, PW 1 Rampat Sahai, who Digitally signed by Atul Ahlawat Atul Date:
CNR No. DLSE01-001786-2016 AhlawatPage2026.04.01 25 of 30 Lal Mani Jain Vs. Avtar Singh & Anr. 14:50:41 RCA DJ No. 20307/2016 +0530 was neither the witness nor present at the time of execution of the said receipts and since the appellant chose not to produce the witnesses, whose names and signatures were duly mentioned on the said receipts to corroborate their execution, therefore the 3 rd point of determination is partly decided in the favour of the appellant with respect to the payment of Rs. 18,000/- to the respondent no.1. and she could not prove the remaining payment of Rs. 52,000/- to the respondent no.1. Therefore, on the said aspect, this Court is in full confirmity with the view of the Ld. Trial Court.
47. Now turning focus on the issue of the averments in the pleadings filed by the appellant that the respondent no. 2 was the subsequent purchaser of the same land in question, qua which the respondent no.1 had executed the ATS Ex. PW 1/ 2 in favour of the appellant, since it was the defence of the respondent no.2 that he had purchased a separate parcel of land from the respondent no.1 through registered sale deeds and the mere denial of the appellant that the said documents Ex. DW 1/1 and Ex.DW 1/ 2 do not pertain to the separate parcel of land, does not suffice. Since the appellant wished this Court to believe on a certain fact which he had pleaded and led evidence for, the onus for proving the said fact remained on her. Not only the legal burden, however in the present case, once it was pleaded by the respondent no.2 that the identity of the land purchased by him was different from the land which is a subject matter of the present suit, then the evidentiary burden had shifted back upon the appellant to prove by leading cogent evidence to the said effect, which she had miserably failed. Therefore, the said point of determination is hereby decided against the appellant. The question of prior notice to the Digitally signed by Atul Ahlawat Atul Date:
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respondent no.2 of the ATS Ex. PW 1/ 2, therefore, becomes reduntant.
48. Since the appellant could not establish the identity of the suit property, the question of her readiness and willingness does not arise. Since, once the respondent no.1 had denied the execution of the ATS Ex. PW 1/ 2, in favour of the appellant, then it was not upon the appellant to prove the said willingness. Therefore, the decision of the Ld. Trial Court on this aspect is not sustainable.
49. Coming to the last point of determination, since the appellant could not prove the identity of the land in question, therefore, no specific performance of the ATS dated 18.10.1985 can be granted to her, however she had duly proved payment of Rs.18,000/- to the respondent no.1 vide receipt Ex. PW 1/3, therefore she is entitled to refund of the said amount along with interest @ 9% p.a. from the date of payment till the passing of the present judgment. For the period after the passing of the judgment and till recovery of the said amount, she shall be further entitled to the simple interest @ 6 % p.a.
50. As far as the issue of the disobedience of the earlier passed injunction order is concerned, it is vehemently argued by the Ld. counsel for the appellant that the application u/o XXXIX rule 2 A CPC, 1908 was filed and it was necessary for the Ld. Trial Court to be decided and the said applications could not have been left unadjudicated. Although, this Court is in full confirmity with the law laid down in Lavanya C. (Supra) by the Hon'ble Supreme Court of Digitally signed by CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr.Atul Page 27 of Atul 30 Ahlawat RCA DJ No. 20307/2016 Date:
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India that the application seeking the passing of appropriate order under the said provision is maintainable, even if the injunction order is subsequently set-aside, since, the disobedience of the injunction order is not erased. However, in the facts of the present case, the ex- parte ad-interim injunction was granted by the Ld. Trial Court on the first date of hearing i.e. 14.10.1987 and the said orders were to continue till the next date of hearing i.e. 18.11.1987. Thereafter, the said order was only extended till 18.01.1988, since, the respondent no.2 was not served and only respondent no. 1 had entered appearance. Thereafter, the perusal of the record reflects that the interim orders directing the parties to maintain status quo was not extended and consequently upon the appearance of the respondent no.2 on 18.01.1988, no further orders were passed with respect to the injunction in favour of or against any of the parties.
51. Furthermore, vide order dated 19.01.2000, the Ld. Trial Court had categorically denied the passing of any directions to SHO, PS Badarpur, Delhi to ensure the compliance of the status quo order. The said order was challenged by the appellant by filing a Civil Revision Petition bearing CR No. 397/2000 & CM No. 1134/2000, before the Hon'ble High Court of Delhi, wherein it was categorically held by the Hon'ble High Court that "To me it appears to be a controversy about nothing. There could be instances where a property was clearly described on paper but which may not be in confirmity with the ground position. If parties and the court entertained any doubt about the location and identity of the suit property, appropriate steps could as well be taken or ordered to have it identified and the controversy resolved. This apart, there is no gain saying that Digitally signed by Atul Atul Ahlawat Date:
CNR No. DLSE01-001786-2016 Ahlawat 2026.04.01 Page 28 of 30 Lal Mani Jain Vs. Avtar Singh & Anr. 14:51:00 RCA DJ No. 20307/2016 +0530 impugned finding/observation of the court at interim stage could reflect on the status quo order obtained by petitioner and could even render it redundant. As such impugned finding/observation in the last but one para of impugned order would have to go and is set-aside. Petitioners application shall revive and be reconsidered by Trial Court and it shall be open to petitioner to take steps for ascertainment, if any of the identity of suit land so as to seek appropriate orders from the court for enforcement of status-quo order". Thereafter, the direction was issued to the Ld. Trial Court to re-consider the application moved by the appellant, upon the steps taken by the appellant for ascertainment of the identity of the suit land.
52. Thereafter, vide detailed order dated 21.03.2001, the Ld. Trial Court had dismissed the application of the appellant, since, there was no material on record ascertaining as to what was the position of the suit property at the time of passing of the status quo order. Furthermore, the appellant had not taken any steps for getting the property demarcated. Therefore, no issue of any willful disobedience of the temporary injunction/status quo order arises and this Court finds no infirmity with the decision of the Ld. Trial Court with respect to not passing any orders qua the alleged disobedience of the said status quo orders.
53. In view of the discussions in the preceeding paragraphs, the present appeal is hereby partly allowed. The judgment and decree dated 10.03.2016 are hereby set-aside. Let the decree sheet be prepared accordingly.
Digitally signed Atul by Atul Ahlawat
Date:
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54. Let the copy of this judgment be sent to the Ld. Trial Court along with the TCR.
55. The appeal file shall be consigned to record room, after due compliance.
56. Copy of this Order be given dasti as prayed for.
Digitally
signed by
Atul Ahlawat
Atul Date:
Announced & dictated in Ahlawat 2026.04.01
the open Court on 01.04.2026 14:51:11
+0530
(Atul Ahlawat)
District Judge-03/South-East District Saket Courts, New Delhi/01.04.2026 Certified that this Judgment contains 30 pages and each page is digitally signed by me.
Digitally
signed by
Atul
Atul Ahlawat
Ahlawat Date:
2026.04.01
(Atul Ahlawat) 14:51:15
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District Judge-03/South-East District Saket Courts, New Delhi/01.04.2026 CNR No. DLSE01-001786-2016 Lal Mani Jain Vs. Avtar Singh & Anr. Page 30 of 30 RCA DJ No. 20307/2016