Delhi District Court
Smt. Jaswinder Kaur vs Sh. Manjeet Singh on 1 June, 2016
IN THE COURT OF SH. DHARMENDER SINGH, CIVIL JUDGE-III
(WEST) TIS HAZARI COURTS, DELHI
SUIT NO. 326/14
DATE OF INSTITUTION : 19.01.2011
DATE ON WHICH RESERVED : 31.05.2016
DATE OF DISPOSAL : 01.06.2016
SMT. JASWINDER KAUR
W/O SH. HARJEET SINGH
R/O F-157, (S.F)
VISHNU GARDEN, NEW DELHI-18
..........PLAINTIFF
VS.
SH. MANJEET SINGH
S/O SH. SATNAM SINGH
R/O WZ-49/H, NAVYUG BLOCK
VISHNU GARDEN, NEW DELHI-18
....... DEFENDANT
Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 1/8
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
JUDGMENT
1 Vide this judgment, this Court proceeds to decide the present suit filed by the plaintiff against the defendant whereby plaintiff has prayed to pass a decree of declaration whereby declare that Sale Deed in question is in respect of second floor along with roof right of suit property and not only in respect of second floor and plaintiff is owner and in possession of the same. It is further prayed that to pass a decree of mandatory injunction thereby directing the defendant to execute Rectification Deed. It is further prayed that to pass a decree of permanent injunction whereby restrain the defendant and his agents from raising any construction on the roof of second floor of suit property and not to create any third party interest in the suit property.
2 As per the case of plaintiff, she is owner of property i.e second floor along with roof rights, bearing No. F-157, Land Area 50 sq yds out of Khasra No. 31/19, Village Khyala, Vishnu Garden, Delhi (hereinafter referred as suit property) and having Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 2/8 possession of the same.
3 As per plaintiff, she entered into an agreement to sale/purchase qua second floor along with roof rights of suit property for a total consideration amount of Rs. 5 lacs. It is submitted that defendant agreed that he will execute the title documents in respect of second floor along with roof rights of the suit property and consideration amount was paid by plaintiff in cash.
4 It is alleged that plaintiff is a lady who is not much educated and not acquainted with the procedure of registration of documents and due to said reason, defendant took the responsibility of preparation of title documents. After preparation of title documents, defendant told that he had got prepared the documents in respect of second floor with roof rights. After that, plaintiff was called to sign the documents at Sub Registrar Office and when she asked to read over the contents of the document, she was told that contents of the documents are very long and there is very short time and due to above assurance, plaintiff signed the documents and sale deed was executed. It is submitted that as per the Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 3/8 understanding of the plaintiff she had purchased the second floor with roof rights.
5 It is alleged that one day defendant came to her house and told her that he wanted to raise another storey on the roof of the second floor of the suit property. Plaintiff objected the same and claimed her right over the roof of the second floor of the suit property. However, defendant told her that she has no right over the roof and sale deed was executed only in respect of second floor without roof rights. On the objection of plaintiff, defendant left the spot, however, before that he threatened the plaintiff that he will dispossess her from the suit property and will raise construction on the roof of second floor. After that, plaintiff requested to an educated person to read over the contents of the Sale Deed and then she came to know that Sale Deed was only in respect of second floor without roof rights.
6 It is alleged that said Sale Deed is a result of mis representation and fraud played by the defendant. Aggrieved by the conduct of the defendant, present suit has been filed by plaintiff.
Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 4/8 7 The defendant was summoned by this Court, and appearance was made on his behalf. WS was filed by defendant. Defendant denied the allegations levelled by plaintiff. In his WS, It is alleged by defendant that plaintiff has concealed the material facts from the Court. It is submitted that plaintiff and her husband themselves purchased the requisite stamp papers and they got prepared the Sale Deed and plaintiff was not involved in any manner in the drafting of documents of Sale Deed. It is alleged that present suit has been filed on the basis of false and concocted facts as plaintiff wants to grab the roof of the second floor of the suit property.
8 After WS, plaintiff filed the replication to the WS of defendant, in which she reiterated the version as mentioned in her plaint and denied the pleas taken by the defendant.
9 After hearing the parties and on the basis of the pleadings, following issues were framed:-
1 Whether the plaintiff is entitled to the relief of declaration, as prayed?OPP 2 Whether the plaintiff is entitled to the relief of Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 5/8 mandatory injunction, as prayed? OPP 3 Relief.
10 To prove his case, plaintiff examined herself as PW-1. She has relied only upon one document.
11 Defendant did not lead any DE in his defence.
12 Opportunity for argument was granted to both the parties. .
13 Issuewise findings are as under. This Court shall deal with both the Issues together:-
Issue No. 1 & 21 Whether the plaintiff is entitled to the relief of declaration, as prayed?OPP & 2 Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed? OPP As per plaintiff, she purchased the second floor of the suit property along with roof rights, however, due to fraud or mis representation played by defendant Sale Deed mentions the right of plaintiff only in respect of second floor without roof rights.
This Court is of the considered view that due Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 6/8 to certain reasons, the case of the plaintiff is not reliable. As per document Ex. PW-1/1 (Sale Deed in respect of suit property) stamp duty were paid by Jasvinder Kaur (plaintiff). During her cross examination, plaintiff deposed that attesting witnesses of Ex. PW-1/1 are her son Jaspreet and her cousin Balvinder Kaur. This Court is of the considered view that it is the general practice in sale and purchase of immovable property that stamp duty is paid by purchaser and documents for sale and purchase are also got prepared by purchaser. In the present case also, it is clear from Ex. PW-1/1 that stamp duty was paid by plaintiff. Even both the attesting witnesses are family member/relative of plaintiff. In these circumstances, it is highly improbable that any fraud or mis representation has been played by defendant and signatures of the plaintiff on the Sale Deed were taken without understanding by plaintiff of the contents of the Sale Deed.
As per plaintiff, before execution of sale deed , one agreement to sale was also executed in respect of suit property, however, said agreement to sell has not been produced by plaintiff. In her cross examination, plaintiff deposed that said agreement to sell was with regard to second floor with roof rights. This Court is of the considered view that in this way case is Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 7/8 covered under illustration (g) of Section 114 of Indian Evidence Act. Section 114 illustration (g) of Indian Evidence Act, 1872 "the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it".
In view of the above discussion, plaintiff has failed to prove that roof rights are not mentioned in Ex. PW-1/1 due to fraud and misrepresentation played by defendant. Accordingly, both these issues are decided against the plaintiff and in favour of the defendant. Issue No. 3.
Relief.
In view of the decision of this Court on issue No. 1 & 2, plaintiff is not entitled to any relief. No orders as to cost. Decree Sheet be drawn accordingly. File be consigned to Record Room after due compliance. Announced in the Open Court today i.e. 01.06.2016 (Dharmender Singh) CJ (West)III THC/Delhi 01.06.2016 Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 8/8 Suit No. 326/14 Jaswinder Kaur Vs.Manjeet Singh 9/8