Delhi District Court
M/S Loharu Infrastructures Private Ltd vs Gurcharan Singh on 28 October, 2017
IN THE COURT OF SH. ANIL KUMAR SISODIA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/610127/2016
M/s LOHARU INFRASTRUCTURES PRIVATE LTD.
M-28, Greater Kailash-II(Market)
3rd Floor, New Delhi-110048 ...........Plaintiff
Versus
1.GURCHARAN SINGH
S/o Sh. Amar Singh
R/o 353, Kohat Enclave,
Pitampura, New Delhi-34.
2.ATMA RAM AGGARWAL
S/o Late Shri Lalta Prasad Aggarwal
R/o C-616, Main Rohtak Road,
Nangloi, New Delhi-41.
3.M.S. VATS
Tehsildar/C.O.(Punjabi Bagh)
Main Rohtak Road, Nangloi, Delhi-41.
4.RANBIR SINGH
S/o Sh. Shish Ram
R/o Village & P.O. Mubarak Pur Dabas,
Delhi .........Defendants
Date of institution :- 21.07.2001
Order Reserved On:- 25.10.2017
Date of Decision:- 28.10.2017
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 1/40
For the Plaintiff:-Sh. B.D. Kaushik & Sh. T.C. Sharma, Advocate
For the Defendant no.1, 2 & 4:-Sh. Ravinder Yadav, Advocate.
SUIT FOR CANCELLATION OF SALE DEED DATED
05.03.2001, DECLARATION, PERMANENT
INJUNCTION AND DAMAGES
JUDGMENT
1. P LA I N T 1.1. Plaintiff Smt. Saraswati Mishra filed the present suit against defendants for cancellation of sale deed dated 05.03.2001, declaration, permanent injunction and damages. During the pendency of the suit, M/s Loharu Infrastructures Pvt Ltd. filed an application under Order 22 Rule 10 CPC for substitution as plaintiff. Vide order dated 11.08.2017, the application was allowed and it was substituted as a plaintiff in place of Smt. Saraswati Mishra.
1.2. Facts of the case, as stated in the plaint, are that plaintiff and her husband came to Delhi in 1981 and met defendant no.-2 who is a property dealer and requested him for his help in purchasing some land in Delhi. The plaintiff purchased agricultural land measuring 28 bigha and 16 biswa situated in village Safipur Ranhola Delhi comprising of Khasra nos.46/12(4-16), 19(4-16), 20(4-16), 21(4-16), 22/1(0-4), 22/2(4-
12) and 47/16(4-16){hereinafter referred to as suit lands} through defendant no.-2 for valuable consideration from Sh. Darya and Maya M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 2/40 Ram vide two sale deeds dated 09.11.1981. Sh Darya and Maya Ram handed over the actual vacant and physical possession of the suit lands to plaintiff on 09.11.1981. Before and after the purchase of suit lands, plaintiff and her husband frequently visited the office of defendant no.-2 who used to give them a warm welcome and defendant no.-2 also treated plaintiff as his elder sister. Since plaintiff and her husband were not familiar with the procedure of mutation, they entrusted the same to defendant no.-2 who assured to get the land mutated in the name of plaintiff. After the purchase of the suit lands, plaintiff's husband used to get the same cultivated through hired labourers from 1990 onwards through his agent. In 1992, plaintiff's husband met with a major accident and in the end of 1997, suffered from angenial ailments and fluctuating blood pressure and often used to remain on complete bed rest and therefore, plaintiff and her husband were unable to look after their suit lands in Delhi. Defendant no.-2 who used to visit plaintiff's family at Cuttack and more particularly around Raksha Bandhan was aware about the helplessness and inability of the plaintiff to look after the suit lands. Defendant no.-2 being aware about the aforesaid facts, hatched a criminal conspiracy in collusion and connivance with his associates namely Rajender, Suresh Kumar and Hariram to grab the suit lands and manufactured a forged GPA dated 13.05.1994 by forging the signatures of plaintiff in Hindi and got the same notarized but defendant no.-2 and his associates could not succeed in their illegal plans to grab the suit lands belonging to plaintiff.
1.3. It is further stated that defendant no.-2 and his associates again M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 3/40 manufactured another set of forged documents containing GPA, affidavit, Deed of Will, Agreement to Sale all dated 18.01.2000 by forging signatures of plaintiff in Hindi and got the GPA registered before the Sub-Registrar, Khurda Orissa by personating some lady as plaintiff. Plaintiff lodged FIR at PS Khurda against defendant no.-2 and his associates. On the basis of the forged GPA dated 18.01.2000, the aforesaid Rajender executed Conveyance Deed dated 28.01.2000 in favour of Suresh Kumar and got the same registered before Sub- Registrar Mumbai. On the basis of the Conveyance Deed dated 28.01.2000, Suresh Kumar applied for mutation of suit lands in his name before defendant no.-3 but could not succeed in grabbing the suit lands. In the meanwhile, one Azad Singh forged number of documents and filed suit no.36/2000 in the High Court on the basis of the same which was dismissed as withdrawn after defendant no.-2 and his associates settled the matter among themselves. Thereafter, defendant no.-2 visited plaintiff's family at Cuttack in August 2000 and induced plaintiff to sell her suit lands and agreed to purchase the same for a total sale consideration of Rs.1,10,00,000/- and was ready to pay Rs.60 lacs by demand drafts and with balance sale consideration of Rs.50 lacs, defendant no.-2 assured the plaintiff to install and handover three fully operational petrol pumps, one each in the name of plaintiff, her major son and her daughter at Cuttack. Defendant no.-2 again visited family of plaintiff at Cuttack during Ganesh Chaturthi and induced her to sell the suit lands to him. In pursuance of the oral agreement to sell, defendant no.-2 handed over four demand drafts amounting to Rs.16 lacs on 01.09.2000 as advance and also handed over one more demand draft of M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 4/40 Rs.3 lacs being the price of usufructs of the suit lands and requested plaintiff to sign the back dated receipts dated 28.08.2000 one in his own name and another in the name of Prem Shankar Aggarwal to which plaintiff obliged. Defendant no.-2 also obtained signatures of plaintiff on a blank stamp paper of Rs.50/- and blank papers for submitting applications for allotment of petrol pumps alongwith photographs of plaintiff, her husband, her major son and daughter, photocopies of their election I-card and some typed papers signed by major son of plaintiff. Thereafter, defendant no.-2 took husband of plaintiff and their neighbour Sh. P.P. Satpathy to Chandi Khol for purchasing the land for petrol pumps where he spoke to some property dealers and visited a few sites and returned to Delhi after paying token charges to the property dealers but without finalizing anything.
1.4. In November 2000, defendant no.-2 telephonically informed plaintiff that allotment letters of petrol pumps were likely to be issued soon and he would be visiting her in near future for purchasing the land for petrol pump but defendant no.-2 did not visit plaintiff for purchasing the land. Plaintiff's husband came to Delhi in the last week of November 2000 and inquired about the progress in allotment of petrol pumps and remaining balance consideration amount from defendant no.-2. Defendant no.-2 informed him that certain minor formalities were yet to be completed and allotment letters will be issued within a week or so. Thereafter, husband of plaintiff went to the suit lands and met his agent who told him that defendant no.-2 is fraudulently trying to sell part of the suit lands in the absence of plaintiff. Plaintiff's husband met Halka M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 5/40 Patwari and obtained Khatoni and came to know that land measuring 7 bigha and 4 biswas(hereinafter referred to as the said land) was not mutated in the name of plaintiff in the revenue records. Plaintiff's husband tried to meet defendant no.-2 but could not succeed in meeting with him and left for Cuttack. The husband of plaintiff again visited Delhi in January 2001 and tried to find out the status of the said land but could not succeed due to indifferent and careless attitude of defendant no.-2. Defendant no.-2 informed that he forgot to apply for mutation and assured plaintiff's husband to get the same mutated in name of plaintiff and asked him to bring original sale deeds and plaintiff with him in March 2001 for completing sale of the suit lands. Plaintiff and her husband came to Delhi and signed four applications for obtaining NOC on 28.02.2001 after defendant no.-2 had shown various demand drafts amounting to Rs.44 lacs and handed over photocopies thereof to plaintiff. Defendant no.2 told plaintiff that original drafts will be given at the time of execution and registration of the sale documents in favour of his nominees. It was also informed by him that due to some inquiry, applications for allotment of petrol pumps were cancelled and he will pay the balance sum of Rs.50 lacs also by demand drafts at the time of registration of the sale deed in respect of the suit lands.
1.5. On 05.03.2001, defendant no.-2 alongwith defendant nos.-1,4 and his other nominees took plaintiff and her husband to the office of Sub- Registrar and asked her to execute the sale deeds in favour of his nominees in the presence of Sub-Registrar. The plaintiff denied and asked defendant no.-2 to first obtain NOCs and make the payments of M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 6/40 balance sale consideration. Defendant no.-2 told plaintiff that NOC were not being issued by the competent authorities under the impression that applications were forged and fabricated and requested plaintiff to give a statement before defendant no.-3 for issuance of NOC. On the request of defendant no.-2, plaintiff alongwith her husband and defendant no.-2 went to office of defendant no.-3 who recorded her statement on 07.03.2001. The statement was signed by plaintiff as well as by her husband. Thereafter, defendant no.-2 informed plaintiff that he will inform her on telephone about the issuance of NOCs and will ask her to come to Delhi to complete the formalities of sell as soon as the balance consideration amount is arranged.
1.6. On 18.03.2001, defendant no.-2 visited plaintiff at Cuttack and informed that her associates will come in a day or two alongwith balance consideration of Rs.50 lacs and handover the same to plaintiff. However, no one came to Cuttack and defendant no.-2 left Cuttack on 28.03.2001 as to why his associates had not come. On 03.04.2001, plaintiff received one postal envelope from the office of defendant no.-3 containing an undated notice to appear before him on 31.03.2001. The said envelope was posted on 28.03.2001 from Post Office Nangloi. Thereafter, on 07.04.2001, plaintiff was shocked when she received final notice dated 31.03.2001 from the office of defendant no.-3 which required her to appear before defendant no.-3 on 04.04.2001 regarding mutation proceedings of the suit land and the said notice was posted from Post Office Nangloi on 03.04.2001. Immediately on receipt of final notice, plaintiff's husband reached Delhi on 09.04.2001 and went to the office of M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 7/40 the defendant no.-3 and inquired about the notice whereupon it was revealed that the suit lands have already been mutated in the names of nominees of defendant no.-2 but number of case and date of order were not supplied to him. Thereafter, husband of plaintiff obtained photocopies of NOC from the notification branch Tis Hazari Court Delhi and went to office of Sub-Registrar-II Janakpuri New Delhi and conducted inquiry about execution and registration of the suit lands and it was revealed that sale deeds were registered on 13.03.2001. The husband of plaintiff applied for certified copies of the sale deeds which were supplied to him on 09.04.2001 i.e. the same day. Thereafter, plaintiff's husband informed her and asked her to come to Delhi immediately as defendant no.-2 acting as her attorney had sold land measuring 20 bighas and 8 biswas bearing Khasra no.46/19(4-16), 20(4-
16), 21(4-16), 22/1(0-4), 22/2 min(1-0) and 47/16(4-16) out of the suit lands to defendant no.1 vide sale deed 05.03.2001 registered on 13.03.2001. Defendant no.1 applied for the mutation of aforesaid land in his favour after getting the sale deed registered and defendant no.-3 granted mutation in his favour vide order dated 07.04.2001 against which plaintiff preferred Civil Appeal no.4/2001 which is pending in the Court of Addl. Collector(West) Delhi and Addl. Collector stayed the operation of impugned order dated 07.04.2001 of defendant no.-3 on 25.04.2001.
1.7. It was further stated that since defendant no.-2 had sold the aforesaid land to defendant no.-1 on the basis of forged and fabricated GPA dated 28.08.2000 therefore, the sale deed dated 05.03.2001 is illegal M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 8/40 and void ab initio. The mutation granted by defendant no.-3 vide order dated 07.04.2001 is also illegal, null and void ab initio. On 17.04.2001, Halka Patwari told the case no. and date of order of mutation of the aforesaid land to the husband of plaintiff who applied for certified copy of the mutation file. Perusal of mutation file revealed that defendant no.2 had dishonestly and fraudulently manufactured a forged GPA in his favour and also forged the signatures of plaintiff's husband. The statement of plaintiff dated 07.03.2001 recorded before defendant no.-3 was also tempered by inserting one sentence "now land may be mutated in favour of vendee" as well as by accepting the words of defendant no.2 and intentionally dispatching the postal envelopes belatedly thereby rendering impossible, the appearance plaintiff before him on the date fixed in mutation proceedings. Therefore, defendant no.-3 has misused his official powers for causing wrongful gains to defendant no.1 and 2. It was stated that defendant no.-1 and 2 attempted to illegally and forcibly dispossess plaintiff from the suit land. On 07.06.2001, defendant no.-1,2 and 4 tried to forcibly and illegally cultivate the suit lands but could not succeed due to timely intervention of her husband, his agent and labourers. The plaintiff also sent a legal notice dated 30.06.2001 to the defendants and all defendants except defendant no.-1 were duly served with the notice and AD cards were received back. The registered cover, AD card and notice sent by UPC to defendant no.-1 have not been received back and there is presumption of service of defendant no.-1. Defendants failed to comply with the notice despite its service. Finding no other alternative, plaintiff filed the present suit.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 9/402. WRITTEN STATEMENTS BY DEFENDANTS 2.1. Defendant no.-1, 2 and 4 have filed joint written statement raising preliminary objections that the suit is cognizable by the Revenue Court and cognizance by Civil Court is barred. Suit is barred under Order 2 Rule 2 CPC. Plaintiff is estopped from denying the truth of selling of the suit lands to defendant no.-2 and plaintiff has issued a receipt dated 28.08.2000 admitting the receipt of Rs.16 lacs as sale consideration of the suit lands. Plaintiff executed GPA dated 28.08.2000 and also handed over original documents of the suit lands and also handed over the vacant possession of the suit lands to defendant no.-2 on 28.08.2000. Plaintiff has not approached the Court with clean hands and has concealed material facts. Plaintiff cannot be allowed to retain both the benefits as she has received the entire sale consideration of the suit lands and she cannot be allowed to claim the suit lands after selling the same. There is no cause of action against the defendants for filing the suit.
2.2. On merits, contents of para 1 and 2 of the plaint have been admitted but remaining contents of the plaint were denied and it has been stated that plaintiff and her husband are habitual cheaters and they used to sell the same land to several persons and while executing the documents they used to sign in different manner and also used to sell the lands through other ladies posing as plaintiff. Defendant no.-2 paid the sale consideration in the form of demand drafts and obtained the receipt dated 28.08.2000. The plaintiff filed application for NOC and gave statement before defendant no.-3 only when defendant no.-2 told them M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 10/40 that he would enforce the specific performance of the agreement through Court. It was also stated that the plaintiff and her husband visited Delhi in August 2000 and met defendant no.2 and expressed their eagerness to sell the suit land measuring 28 bigha and 16 biswas bearing Khasra no.- 46/12(4-16), 19(4-16), 20(4-16), 21(4-16), 22/1(0-4), 22/2(4-12) and 47/16(4-16). The plaintiff and defendant no.-2 entered into oral agreement and defendant no.-2 agreed to purchase suit lands for Rs.16 lacs and the plaintiff agreed to execute GPA and handover original title documents to defendant no.-2. Plaintiff also agreed to complete formalities and to get the suit land mutated in the name of defendant no.2 or his nominees. The plaintiff executed GPA in August 2000 and her husband signed the same as a witness. Plaintiff also handed over vacant possession of the suit land and further agreed to come to Delhi and complete formalities regarding mutation. It was further stated that plaintiff and her husband cheated Mr. Rajender and when he demanded money back from the plaintiff, plaintiff instituted false case against the defendants and Mr Rajender and also filed false complaint against them in Orissa. It was denied that total sale consideration agreed was Rs.1.10 crores. It was also denied that defendant no.-2 assured plaintiff to install and handover fully operational petrol pumps. It was also denied that defendant no.-2 handed over Rs.3 lacs in form of demand draft beside Rs.16 lacs. It was stated that plaintiff had requested for loan of Rs.6 lacs to Prem Shankar Aggarwal and he agreed to give friendly loan of Rs.6 lacs for a period of 1 year @24% p.a. He had given Rs.3 lacs by way of cash on 28.08.2000 for which plaintiff gave a receipt and on 29.08.2000, Rs.3 lacs were given in the form of bank draft. It was further stated that M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 11/40 plaintiff had put a proposal to defendant no.-2 that she had a land in Chandi Khol which she wanted to sell. Defendant no.-2 accepted the proposal and price for the said land was agreed at Rs.44 lacs. The plaintiff alongwith her husband and her neighbour took defendant no.-2 to Chandi Khol to show the land and also assured to bring the documents of the land in Chandi Khol to Delhi and to execute the documents. Later on defendant no.-2 came to know that plaintiff does not have any land in Chandi Khol and they wanted to cheat defendant no.-2. Plaintiff failed to show the original documents of land in Chandi Khol despite the fact that defendant no.-2 had shown bank drafts of Rs.44 lacs to the plaintiff and also handed over the photocopies of the drafts of the plaintiff.
2.3. It was further stated that Sh. Suresh Kumar Mangla is the owner of the land mentioned in para 15 of the plaint. It was admitted that plaintiff and her husband came to Delhi and made applications for obtaining the NOC. It was denied that the demand drafts of Rs.44 lacs were towards the sale consideration of the suit lands measuring 28 bigha 16 biswa. It was also admitted that the plaintiff and her husband went to the office of Tehsildar Punjabi Bagh on 07.03.2001 where her statement was recorded and the same was signed by plaintiff and her husband. It was denied that any balance payment was left to be made to the plaintiff and it was reiterated that full and final payment for purchase of the suit lands was made on 28.08.2000. It was denied that the receipt and GPA dated 28.08.2000 were forged and fabricated and the same were manufactured by defendant no.-2. It was also denied that plaintiff is in possession of the suit lands and it was stated that the suit land is in possession of Sh M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 12/40 Arvind Aggarwal, Gurcharan Singh and Prem Shankar Aggarwal. All other contents of the plaint were denied and the prayer was made for dismissal of the suit.
2.4. Defendant no.-3 has filed written statement raising preliminary objections that the Civil Court has no jurisdiction in the matter as plaintiff herself had approached revenue authorities in the matter against mutation orders which also involved the question of validity of sale deed in dispute. On merits, the contents of the plaint were denied for the want of knowledge. It has been denied that the statement of plaintiff was tempered or that defendant no.-3 misused his official powers. Prayer was made for dismissal of the suit.
3. REPLICATIONS TO THE WS OF THE DEFENDANTS The plaintiffs filed replications to the written statements of defendants and reiterated the contents of the plaint and denied the averments contrary to the plaint.
4. ISSUES After completion of pleadings, the following issues were framed on 24.05.2004:-
1. Whether the present suit is not maintainable in view of the preliminary objections no.-1 in the WS as an appeal has been filed by the plaintiff before the ADM(West) wherein same points in substance have been raised?OPD
2. Whether this court has no jurisdiction in view of the provisions of Delhi Land Reforms Act?M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 13/40
3. Whether this Court does not have pecuniary jurisdiction to try the present suit in view of the valuation of the suit property?
4. Whether the plaintiff had sold the suit land to the defendants for a sale consideration of Rs.16 lac only?OPD1,2&4
5. Whether the suit property was agreed to be sold by the plaintiff to the defendant no.-2 to the defendants for sale consideration of Rs.1 Crore 10 lacs?OPP
6. Whether the GPA dt. 28.8.2000 executed in favour of deft no.2 by the plaintiff is forged document?OPP
7. Whether the plaintiff is entitled to a decree for declaration/permanent & mandatory injunction and damages as prayed?OPP
8. Relief.
Thereafter, the parties were directed to lead evidence.
5. EVIDENCE BY PLAINTIFF 5.1. Plaintiff in support of her case examined five witnesses. PW-1 Sh. Govind Chandra Mishra tendered his evidence by way of affidavit Ex.PW-1/A. He also proved General Power of Attorney dated 24.11.2000 as Ex.PW-1/1; Office Copy of the legal notice dated 30.06.2001 as Ex.PW-1/2; The postal receipts as Ex.PW-1/3 & Ex.PW- 1/4.
5.2. PW-2 Sh. Neelam Sudhir, Kanoongo, Office of the SDM, Pujabi Bagh, New Delhi brought the summoned record pertaining to Khasra no.46/12(4-16), 46/21(4-16), 46/22/1(0-4), 46/22/2(4-12) and M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 14/40 47/16(4-16) situated at Village Safipur, Ranholla, Delhi.
5.3. PW-3 Ram Kumar Sehrawat, LDC from the office of SDM, West, Punjabi Bagh, Nangloi did not produce any records and testified that record summoned is available with the office of the SDM Rampura, New Delhi.
5.4. PW-4 Sh. Mokhtar Mahto, Record Keeper from the office of e- Sub Registrar-II, Basai Darapur, Delhi brought the summoned record i.e. a registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Gurcharan Singh and the certified copy of the same was exhibited as Ex.PW-4/1. He also brought another registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Arvind Aggarwal and the certified copy of the same was exhibited as Ex.PW-4/2 and another registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Prem Shanker Aggarwal was exhibited as Ex.PW-4/3.
5.5. PW-5 Inspector Vinod Gandhi no.D-818, EOW, Crime Branch Delhi was IO in Case FIR no.443/2002 registered in PS Nangloi. He testified that the FIR was lodged by Smt. Saraswati Mishra and he had filed the chargesheet against the accused persons namely Atma Ram Aggarwal, Arvind Aggarwal, Suresh Kumar Mangla, Gurcharan Singh, Prem Shanker Aggarwal, Suresh Kumar Mangla, Gurcharan Singh, Prem M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 15/40 Shanker Aggarwal, Rajinder, Ranvir Singh, Hari Ram, Azad Singh, Mahinder Singh Vats, Maya Ram before Ld.ACMM(West) in December 2010.
Thereafter, P.E. stands closed.
6. EVIDENCE BY DEFENDANTS 6.1. Defendants have examined four witnesses in support of this case.
DW-1 Sh. Gurcharan Singh(defendant no.-1) tendered his evidence by way of affidavit as Ex.DW-1/A. He also proved the sale deed dated 05.03.2001 in his favour already exhibited as Ex.PW-4/1; Mutation Order as Ex.DW-2/1; Khatoni of the suit land as Ex.DW-2/2; Sale deeds in favour of plaintiff(Saraswati Mishra) were proved as Ex.DW-2/3 and Ex.DW-2/4; GPA dated 28.08.2000 as Ex.PW-1/D1/2; receipt dated 28.08.2000 as Ex.PW-1/D1/1; Application filed by the plaintiff for obtaining NOC in favour of Prem Shankar Aggarwal as ExPW-1/D1/3; Application filed by the plaintiff for obtaining NOC in favour of Arvind Aggarwal as Ex.PW-1/D1/4; Application filed by the plaintiff for obtaining NOC in favour of defendant no.-1 as Ex.PW- 1/D1/5; Sale deed executed by defendant no.-2 in favour of Prem Shankar Aggarwal as Ex.PW-4/3; Sale deed executed by defendant no.-2 in favour of Arvind Aggarwal as Ex.PW-4/2. The witness also relied on the certified copy of P-4 form dated 06.04.2009, 23.11.2009 as Ex.DW- 1/1 and Ex.DW-1/2 respectively. The certified copy of bank statement pertaining to account no.10660 was proved as Ex.DW-1/3.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 16/406.2. DW-2 Sh. Atma Ram Aggarwal (defendant no.-2) tendered his evidence by way of affidavit Ex.DW-2/A. He has relied upon the documents already exhibited as Ex.PW-4/1 to Ex.PW-4/3, Ex.PW- 1/D1/3, Ex.PW-1/D1/4, Ex.PW-1/D1/5 and Ex.DW-2/1. He also relied on photographs Mark A to Mark G11, Copies of the electricity bill as Mark H to Mark Q. The Copies of the receipt towards sale of vegetable produced obtained from the suit land as Mark S1 to S13 and Copy of FIR dated 20.04.2010 as Mark T. 6.3. DW-3 ASI Mahavir Singh testified that inspector Vinod Gandhi was the IO in FIR no.103/10, PS Ranholla and he had filed chargesheet in the aforesaid FIR and originals were filed in the Court of Ld.CMM(West) alongwith the Chargesheet.
6.4. DW-4 Sh. Suresh Kumar Ahlmad from the Court of Ms Charu Aggarwal, Ld.CMM, West, Tis Hazari Courts produced the record file of FIR no.103/2010 PS Ranhola tiled as State Vs. Arvind Aggarwal(complainant)(cancellation report). He has also brought original seizure memo dated 25.04.2010 as Ex.DW-4/1; the original electricity bill dated 25.09.2005 as Ex.DW-4/2; the original electricity bill dated 17.03.2006 as Ex.DW-4/3; the original electricity bill dated 17.05.2006 as Ex.DW-4/4; the original electricity bill dated 08.09.2006 as Ex.DW-4/5; the original electricity bill dated 20.11.2006 as Ex.DW- 4/6; the original electricity bill dated 01.11.2007 as Ex.DW-4/7; the original electricity bill dated 26.02.2008 as Ex.DW-4/8; the original electricity bill dated 28.05.2008 as Ex.DW-4/9; the original electricity M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 17/40 bill dated 03.07.2008 as Ex.DW-4/10; the original electricity bill dated 02.11.2008 as Ex.DW-4/11; the original electricity bill dated 21.10.2009 alongwith payment receipt as Ex.DW-4/12(Colly); the original electricity bill dated 01.11.2009 as alongwith receipt Ex.DW- 4/13(Colly); the original electricity bill dated 29.12.2009 alongwith receipt as Ex.DW-4/14(Colly); and the original electricity bill dated 19.02.2010 as Ex.PW-4/15; original receipt issued by Sh.Aaryavarat Ghosala dated 19.01.2009 as Ex.DW-4/16, original receipt dated 1665 of sale of vegetables as Ex.DW-4/17; original receipt bearing no.1241 of sale vegetables as Ex.DW-4/18; original receipt bearing no.1222 of sale vegetables dated 12.04.2010 as Ex.DW-4/19; Original receipt bearing no.5045 of sale vegetables dated 01.02.2010 Ex.DW-4/20; Original receipt bearing no.5054 of sale vegetables dated 01.02.2010 as Ex.DW- 4/21; original receipt bearing no.852 of sale of vegetables dated 08.04.2010 as Ex.DW-4/22; original receipt bearing no.3126 of sale of vegetables dated 2010.2009 as Ex.DW-4/23; original receipt bearing no.2975 of sale vegetables dated 10.10.2009 as Ex.DW-4/24; original receipt bearing no. 5552 of sale vegetables dated 06.09.2010 as Ex.DW- 4/25; original receipt bearing no.3130 of sale of vegetables dated 21.10.2009 as Ex.DW-4/26; original receipt bearing no.2229 of sale of vegetables dated nil is Ex.DW-4/27; original receipt bearing no.549 of sale of vegetables dated 05.04.2010 as Ex.DW-4/28; original saving bank passbook of Gurcharan Singh of account no.90372010010660 issued by Syndicate Bank branch Vijay Nagar, Delhi having entries from year 2007 till 2010 is Ex.DW-4/29; original 9 photographs of the land measuring 28 bighas 16 biswa and 7 bigha 4 biswas as Ex.DW-4/30.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 18/40Thereafter, D.E. stands closed.
7. I have heard the Ld. Counsel for the plaintiff as well as Ld. Counsel for the defendant no.-1, 2 & 4 and I have perused the record carefully.
8. My findings on the issues are as under:-
ISSUE No.-(1) & (2):-
(1)Whether the present suit is not maintainable in view of the preliminary objections no.-1 in the WS as an appeal has been filed by the plaintiff before the ADM(West) wherein same points in substance have been raised?OPD (2)Whether this court has no jurisdiction in view of the provisions of Delhi Land Reforms Act?
These issues are taken up together as they can be disposed off by common discussion. Onus of proving these is on the defendants. Defendants no.1,2 and 4 have taken preliminary objections in their written statement that prior to the institution of the suit, plaintiff has file an appeal against the answering defendants in the Court of ADM(West) and the issues raised in this suit are directly in issue in that appeal and the said appeal is pending. It was also stated that the suit is cognizable by a revenue Court and its cognizance by Civil Court is barred. Plaintiff in her replication has denied both the objections and have submitted that the suit is maintainable in the Civil Court.
9. Counsel for the plaintiff has placed reliance on the judgment of Sri Bhagwan Vs. VBM Marketing Estates Pvt Ltd & Anr. 2015(4) CLJ M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 19/40 316(Delhi) (DB) and has argued that under Section 9 of CPC, Civil Court has inherent jurisdiction to try all types of Civil disputes unless its jurisdiction is barred expressly or by necessary implications by any statutory provisions and conferred on any other tribunal or authority. It was argued that the plaintiff in the present suit has sought the relief of declaration of cancellation of sale deed dated 05.03.2001 and also for decree of damages against the defendants. It was argued that the revenue Court does not have the power or jurisdiction to decide a suit seeking cancellation of GPA having been obtained by fraud or misrepresentation and in consequence of which, the sale deed had been registered by playing a fraud. It was argued that the issue of fraud and misrepresentation can only be decided by Civil Court. It was argued that the plaintiff has pleaded in the plaint that defendant no.-2 have obtained GPA dated 28.08.2000 from the plaintiff by fraud and misrepresentation and has executed sale deed dated 05.03.2001 in favour of defendant no.1. Therefore, these issues of fraud and misrepresentation cannot be decided by revenue Court.
10. Hon'ble Supreme Court in Shriram Vs. First Additional District Judge(2001) 3 SCC 24 has held that when a recorded tenant holder having prima facie title in his favour and being in possession seeks cancellation of void documents obtained by fraud and impersonation, he need not file a suit for declaration before the Revenue Courts and the Civil Court has jurisdiction to decide such a suit for cancellation and injunction. It was held that the issue of fraud and misrepresentation can only be decided by Civil Court and Revenue Courts are neither equipped M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 20/40 nor competent to effectively adjudicate upon allegations of fraud that have overtones of criminality and the Courts really skilled and experienced to try such issues are the Courts constituted under CPC.
11. In the present suit also, the plaintiff has pleaded in the plaint that defendant no.-2 have obtained GPA dated 28.08.2000 from the plaintiff by fraud and misrepresentation and has executed sale deed dated 05.03.2001 in favour of defendant no.1. Hence, the suit filed by the plaintiff in Civil Court is maintainable and mere filing of appeal by the plaintiff in the Court of ADM(West) does not create any bar in trying the present suit. In Ishwar Singh Vs. Suraj Bhan 2016(4) CLJ Delhi 663, it was held that there is no bar of jurisdiction of a Civil Court to decide the issue of transfer of a title of Bhumidhari to transferee as there is no provision in DLR Act or in Delhi Land Revenue Act for deciding the disputes with respect to the transfer of title.
Therefore, in view of the aforesaid discussion, the issues are decided in favour of the plaintiff and against the defendants.
12. ISSUE No.(3):-
Whether this Court does not have pecuniary jurisdiction to try the present suit in view of the valuation of the suit property?
The onus of proving this issue lies on the defendants as defendants have denied the pecuniary jurisdiction of this Court. Perusal of the plaint shows that plaintiff has valued the suit for purposes of Court Fees and jurisdiction at Rs.4,50,330/- and has paid the Court Fees of Rs.9126/- on the plaint.M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 21/40
This court has jurisdiction to try the suits which are above the value of Rs.3 lacs. Hence, it cannot be said that this Court has no pecuniary jurisdiction to try the present suit. The issue is accordingly decided in favour of the plaintiff and against the defendants.
13. ISSUES NO.(4) &(5):-
(4)Whether the plaintiff had sold the suit land to the defendants for a sale consideration of Rs.16 lac only?OPD1,2&4 (5)Whether the suit property was agreed to be sold by the plaintiff to the defendant no.-2 to the defendants for sale consideration of Rs.1 Crore 10 lacs?OPP Both these issues are taken up together as they can be disposed off by common discussion. The onus of proving issue no.-4 was on defendants no.1, 2 and 4 whereas onus of proving issue no.-5 was on plaintiff.
14. The case of plaintiff is that defendant no.-2 visited house of plaintiff at Cuttack and induced her to sell the suit lands for a sum of Rs.1.10 crore and agreed to pay Rs.60 lacs by demand drafts and for balance Rs.50 lacs he agreed to get three petrol pumps installed in the name of plaintiff, her major son and daughter at Cuttack. It was further stated that defendant no.-2 handed over demand draft of Rs.16 lacs to plaintiff on 01.09.2000 as advance and obtained signatures of plaintiff on receipt dated 28.08.2000 and blank non judicial stamp paper of Rs.50/- and blank papers. Case of defendants no.-1,2 and 4 on the other hand is that the plaintiff agreed to sell suit lands to defendant no.-2 for a M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 22/40 sum of Rs.16 lacs only. Defendant no.-2 paid the sale consideration by way of demand drafts on 28.08.2000 and the plaintiff executed receipt acknowledging the payment dated 28.08.2000 and further executed GPA dated 28.08.2000 in favour of defendant no.-2 and also agreed to execute the sale deed in favour of the nominees of defendant no.-2. It was denied by the defendants that the sale consideration of the suit land was Rs.1.10 crore.
15. It is an admitted case of both the parties that the agreement to sell the suit lands between the plaintiff and defendant no.-2 was an oral agreement and there was no written agreement to sell executed between the parties. PW-1 appearing for plaintiff has categorically denied the case of the defendant no.1, 2 and 4 that the sale consideration was agreed at Rs.16 lacs and has deposed that the sum of Rs.16 lacs was paid by the defendant no.-2 as an advance.
16. Defendant no.-2 on the other hand has relied upon the receipt Ex.PW-1/D1/1 to argue that the total sale consideration was Rs.16 lacs only. It has been argued by Counsel for the defendant that defendant no.1,2 and 4 that the receipt Ex.PW-1/D1/1 does not mention of any other amount except Rs.16 lacs which were paid in advance to the plaintiff as full and final consideration. It was also argued that plaintiff has admitted her signatures on the receipt and even PW-1 has admitted his signatures on the receipt but has intentionally denied his signatures on the receipt.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 23/4017. Perusal of the record further shows that neither the plaintiff nor defendant no.-2 has examined any other witness on this aspect of the case. The receipt Ex.PW-1/D1/1 was also seized by the police in Case FIR 443/2002 and during the course of an investigation the receipt Ex.PW-1/D1/1 was sent for examination of the PW-1 Govind Chand Mishra. GEQD, Shimla and FSL Rohini have opined the signatures of PW-1 Govind Chand Mishra were found to be forged. The IO also examined the notary public SP Kanwal during the course of the investigation who stated that the GPA and the receipt are bearing his forged signatures and forged rubber stamp of impression as same were not notarized/attested by him and these documents do not bear any entry/sr. no. of the register maintained by the notary. This shows that the statement of PW-1 that he had not signed on the receipt is correct and the receipt Ex.PW-1/D1/1 has been forged and fabricated and no reliance can be placed on it.
18. Apart from the receipt Ex.PW-1/D1/1, no other oral or documentary evidence has been adduced by the parties in support of their contentions. Hence, neither the plaintiff nor defendants have been successful in discharging the onus cast on them. Accordingly, the issue no.4 is decided against the defendants and issue no.-5 is decided against the plaintiff.
19. ISSUES NO.(6):-
Whether the GPA dt. 28.8.2000 executed in favour of deft no.2 by the plaintiff is forged document?OPP The onus of proving this issue is upon the plaintiff. The case of M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 24/40 plaintiff is that defendant no.-2 visited house of plaintiff at Cuttack and induced her to sell the suit lands for a sum of Rs.1.10 crore and agreed to pay Rs.60 lacs by demand drafts and for balance Rs.50 lacs he agreed to get three petrol pumps installed in the name of plaintiff, her major son and daughter at Cuttack. It was further stated that defendant no.-2 handed over demand draft of Rs.16 lacs to plaintiff on 01.09.2000 as advance and obtained signatures of plaintiff on receipt dated 28.08.2000 and blank non judicial stamp paper of Rs.50/- and blank papers on the pretext of applying for petrol pumps. Later on plaintiff came to know that defendant no.-2 had fraudulently converted the blank stamp paper into GPA dated 28.08.2000 and on the strength of the said GPA, executed three sale deeds in respect of the suit lands in favour of Gurcharan Singh, Arvind Aggarwal and Prem Shankar Aggarwal. The plaintiff has claimed that she never executed the GPA dated 28.08.2000 and the receipt dated 28.08.2000 was only towards the advance money paid by the defendant no.-2 towards total sale consideration of Rs.1.10 crore. Defendant no.-2 also failed to make the balance payment and the advance amount paid by him was forfeited by the plaintiff.
20. Case of defendants no.-1,2 and 4 on the other hand is that the plaintiff agreed to sell suit lands to defendant no.-2 for a sum of Rs.16 lacs only. Defendant no.-2 paid the sale consideration by way of demand drafts on 28.08.2000 and the plaintiff executed receipt acknowledging the payment dated 28.08.2000 and further executed GPA dated 28.08.2000 in favour of defendant no.-2 and also agreed to execute the sale deed in favour of the nominees of defendant no.-2. It was denied by M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 25/40 the defendants that the sale consideration of the suit land was Rs.1.10 crore.
21. Counsel for the plaintiff and defendant no.1, 2 and 4 have argued on the lines of their cases. Counsel for plaintiff has argued that defendants have not denied that plaintiff is the owner of the suit land. It was further argued that the defendants have not cross examined PW-1 Govind Chand Mishra on paragraphs no. 2,8,9,11 and 14 of his affidavit and thus testimony of the PW-1 in these paragraphs is admitted by the defendants or atleast there is no rebuttal to the facts stated in these paragraphs. It was argued that PW-1 has categorically denied that sale consideration of the suit land was Rs.16 lacs and has testified that the agreement to sell was for a sum of Rs.1.10 crore. PW-1 has also denied his signatures on the receipt Ex.PW-1/D1/1 and GPA Ex.PW-1/D1/2 and he has categorically testified that the plaintiff had signed the stamp papers in blank and the receipt was only towards the part payment of the sale consideration of the suit land. The PW-1 has also testified that the defendant no.-2 failed to either install the three petrol pumps and further failed to make the balance payment.
22. Counsel for the plaintiff has argued that defendant no.-2 has committed fraud upon the plaintiff and defendant no.-1 and 2 are in collusion with each other. It was further argued by the Counsel for the plaintiff that a bare perusal of the GPA Ex.PW-1/D1/2 would show that it is a forged and fabricated document. The stamp paper on which GPA has been executed was purchased from Kashmere Gate, Delhi on 28.08.2000. The GPA was executed at Cuttack Orissa on 28.08.2000 and M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 26/40 the GPA was notarized at Delhi on 28.08.2000 itself which is humanly impossible. It was argued that the plaintiff never visited Delhi on 28.08.2000 as alleged by defendant no.-2 and therefore it is clear that the GPA Ex.PW-1/D1/2 is a forged and fabricated document and the sale deed executed on the basis of forged and fabricated GPA does not confer any right, title or interest on the defendant no.-1 in respect of 20 bigha 8 biswa as detailed in the sale deed Ex. PW-4/1.
23. Counsel for defendant no.1, 2 and 4 has argued that the suit filed by plaintiff is liable to be dismissed. The plaintiff and her husband have admitted the receipt of the sale consideration of Rs.16 lacs and PW-1 has also admitted the signatures of plaintiff on receipt Ex.PW-1/D1/1 and GPA Ex.PW-1/D1/2. It was argued that the plaintiff now cannot take contradictory stand in view of Section 91 and 92 of Indian Evidence Act. It was argued that the plaintiff has executed the GPA on 28.08.2000 after receipt of Rs.16 lacs and original title documents were handed over to defendant no.-1 and physical possession of the suit land was also handed over to defendant no.-2. It was argued that PW-1 has admitted in his cross-examination that plaintiff had put her signatures on the application for obtaining NOC and had given the statement before the Tehsildar.
24. It was argued that the plaintiff has not appeared in the witness box to prove her case and hence the case of the plaintiff has remained unproved and the suit is liable to be dismissed. It was also argued that the receipt Ex.PW-1/D1/1 shows that entire sale consideration had been paid to the plaintiff in advance and nothing was due and outstanding. The M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 27/40 plaintiff cannot add or delete to the contents of the receipt Ex.PW-1/D1/1 in view of Section 91 & 92 of Indian Evidence Act. PW-1 has also not filed original Power of Attorney and reliance has been placed on the judgments:- (1) Vidhyadhar Vs. Manik Rao & Anr. (1999) 3 SCC 573; (2) Ram Prasad Vs. Hari Narayan AIR 1998 Raj.185; (3)Janki Vasudev Bhojwani Vs. Indusind Bank Ltd. 2005(2) SCC 217 to argue that when the plaintiff does not enter into the witness box state her own case and if she does not depose or get cross examined, adverse inference can be drawn against her. It was argued that non examination of the plaintiff is fatal in the present case.
25. Counsel for the plaintiff in rebuttal have argued that receipt Ex.PW-1/D1/1 is not clear as to what was the total sale consideration and the payment received by the plaintiff was only towards advance payment and the plaintiff can explain the same as Section 91 and 92 of Indian Evidence Act do not create any bar to lead oral evidence to explain the contents of the documents. It was also argued that proviso of Section 92 allows oral evidence in this regard. It was argued that non examination of plaintiff in the case is not fatal to the case of the plaintiff as PW-1 Govind Chand Mishra is the husband of the plaintiff and he has remained present during the entire transactions between plaintiff and defendant no.-2 and he has personal knowledge of the facts of the case and thus is competent to depose about the facts. It was also argued that Section 120 of Indian Evidence Act permits the husband to depose for wife and vis a versa and he is the competent witness for the wife in Civil proceedings. In support of his arguments, Counsel for the plaintiff has relied upon the M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 28/40 following judgments:- (1)Kailash Devi Vs. Matadeen Aggarwal AIR 2001 Rajasthan 306; (2)Smt.Gangvva Vs. Arjunsa AIR 2001 Karnataka 231; (3)Munni Devi Vs. Sona Devi 2014 Law Suit (All) 3157; (4) Sagar Bhagwat Vs.Kiran 2016 Law Suit (Bom)1174 and (5) A.C. Narayanan Vs. State of Maharashtra AIR 2014 SC 630.
26. I have perused the judgments relied upon by the Counsel for the plaintiff as well as Counsel for the defendant no.1,2 and 4. From the perusal of the judgments, the propositions of law that can be culled out are that a power of attorney is a competent witness for the acts done by him as an attorney and he is also competent witness to depose on the facts which are in his personal knowledge although, he cannot appear as a witness in place of his principal. In the facts of the present case, the husband of the plaintiff is a competent witness to appear on behalf of his wife in view of Section 120 of Indian Evidence Act as all the transactions between the plaintiff and defendants have taken place within his personal knowledge. Hence, non examination of the plaintiff in the present suit will not lead to any adverse inference against her.
27. A careful perusal of the documents relied upon by the parties and evidence led by the parties would show that the GPA & receipt dated 28.08.2000 executed in favour of defendant no.-2 by plaintiff are not genuine documents and the same have been executed in suspicious circumstances.
28. At the outset, it may be noted that the execution of the GPA M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 29/40 Ex.PW-1/D1/2 itself is surrounded by suspicious circumstances. Plaintiff claims that she had signed on the blank papers at her house at Cuttack(Orissa) whereas defendant no.-2 in his evidence claims that plaintiff and her husband hand come to his office on 28.08.2000 alongwith the GPA. The GPA shows that the stamp paper was purchased on 28.08.2000 from the stamp vendor at Kashmere Gate Delhi and the GPA was attested by the Notary Public at Delhi on 28.08.2000. However, the opening line of the document reads that GPA was made at Cuttack(Orissa) on 28.08.2000. If at all the GPA was executed at Cuttack, it should have been on the stamp paper from the state of Orissa and not on the stamp paper purchased from Delhi. Similarly, if it was executed at Delhi, there was no occasion to mention that the GPA was made at Cuttack. Further, PW-1 has admitted the signatures of his wife(i.e. plaintiff) on the GPA but he has testified that she had signed on blank stamp paper and blank paper at the instance of the defendant no.-2. PW-1 has also denied his signatures on the GPA as well as the receipt Ex.PW-1/D1/1.
29. It is an admitted fact that statement of the plaintiff was recorded before the Tehsildar on 07.03.2001. A copy of this statement is available on record although the same has not been exhibited. However, in view of the fact that the statement is admitted by both the parties, I am of the considered opinion that the court can look into this statement. Perusal of this statement of plaintiff recorded on 07.03.2001 also shows that the plaintiff in her statement has categorically deposed that she has never executed any document pertaining to the sale/transfer of the abovesaid M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 30/40 land(suit lands) nor appointed any GPA except my husband to execute any document for the sale/transfer of this land. This also clearly establishes that plaintiff has not executed the GPA Ex.PW-1/D1/2.
30. It is pertinent to mention here that during the course of cross- examination of defendant no.-2 Atma Ram Aggarwal, he was confronted with the certified copy of the chargesheet filed against him and other accused persons in case FIR no.443/2002 filed by the plaintiff Smt Saraswati Mishra. DW-2 in his cross-examination has admitted the filing of the chargesheet against him and claimed that it was the false chargesheet. However, certified copy of the chargesheet Ex.DW-2/P1 shows that during the course of investigation, the police has collected the documents and made inquiries from the stamp vendor as well as the notary public who had attested the GPA Ex.PW-1/D1/2 and it was revealed that the stamp paper was purchased at Delhi but the Notary Public has disclosed that his signatures on the GPA have been forged and forged rubber stamp and seal have been used in the GPA. The signatures of PW-1 Govind Chand Mishra on the GPA Ex.PW-1/D1/2 and receipt Ex.PW-1/D1/1 were also found to be forged by GEQD Shimla as well as FSL Rohini. These circumstances clearly indicate that the documents relied upon by the defendants i.e. receipt Ex.PW-1/D1/1 and GPA Ex.PW-1/D1/2 are not genuine documents but are forged and fabricated documents and no reliance can be placed on these documents.
The issue is accordingly decided in favour of the plaintiff and against the defendants.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 31/4031. ISSUE No.(7):-
Whether the plaintiff is entitled to a decree for declaration/permanent & mandatory injunction and damages as prayed?OPP The onus of proving this issue is upon the plaintiff. The plaintiff has claimed the following reliefs in the plaint:-
Relief no.-1:- A decree for declaring the sale deed dated 05.03.2001 in favour of the defendant no.-1 in respect of land measuring 20 bigha 8 biswas as null and void and to pass an order for cancelling the sale deed dated 05.03.2001 and for directing the sub-registrar to make an endorsement to this effect on the sale deed in its record. Relief no.-2:- Decree of declaration for declaring the mutation order dated 07.04.2001 as null and void ab initio.
Relief no.-3:- Decree of permanent injunction restraining defendant no.1, 2 and 4 from forcibly dispossessing the plaintiff from the suit lands.
Relief no.-4:- Decree of mandatory injunction for directing defendant no.-2 to return to the plaintiff blank non judicial stamp papers and blank papers which defendant no.-2 got signed by the plaintiff and her major son on the pretext of obtaining petrol pumps besides photographs and photocopies of election I cards of plaintiff, her husband, major son and daughter.
Relief no.-5:- A decree of damages in favour of plaintiff and against defendants for dragging the plaintiff to unnecessary litigation and causing mental agony and physical harassment.M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 32/40
31.1. For the sake of convenience, this issue shall be decided on the basis of each of the above reliefs claimed by the plaintiff. Accordingly, my findings on each relief is as under:-
31.2. Relief no.-1:-
Counsel for the plaintiff has submitted that the sale deed dated 05.03.2001 Ex.PW-4/1 executed by defendant no.-2 as attorney of the plaintiff in favour of defendant no.-1 is null and void ab initio as the plaintiff never authorized defendant no.-2 to sell her land. It was argued that the GPA Ex.PW-1/D1/2 is a forged and fabricated document.
31.3. Counsel for the defendant no.1, 2 and 4 on the other hand has argued the plaintiff has executed GPA Ex.PW-1/D1/2 after receiving full sale consideration of Rs.16 lacs from defendant no.-2 and defendant no.- 2 is capable of executing the sale deeds in favour of his nominees in respect of the suit lands.
31.4. A perusal of the sale deed dated 05.03.2001 Ex.PW-4/1 executed by defendant no.-2 in favour of defendant no.-1 shows that the sale deed has been executed by defendant no.-2 acting as an attorney of plaintiff on the basis of the GPA Ex.PW-1/D1/2. In view of my findings on issue no.6 hereinbefore that the GPA Ex.PW-1/D1/2 is a forged and fabricated document, the sale deed executed by defendant no.-2 is not a valid document in the eyes of law as defendant no.-2 was never authorized by the plaintiff to execute the sale deed.M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 33/40
31.5. Apart from above, perusal of the sale deed Ex.PW-4/2 shows that there are manipulations in the sale deed. On the first page of the sale deed after the words "(hereinafter called the vendor/s)", the following lines have been inserted:-
"through her Gen. Attorney Sh. Atma Ram Aggarwal S/o Sh. Lalta Prasad R/o F-49, Vishal Colony, Nangloi, Delhi, vide G.P.A. dt:28.8.2000".
In the second paragraph on page 2 of the sale deed Ex.PW-4/1, the Khasra nos.46/19(4-16), 22/1(0-4), 22/2 min(1-0) appear to have been inserted later on.
Similarly, on page 3 para 1 of sale deed Ex.PW-4/1, the following line appears to have been inserted later on:-
"Bank Cheque no.569743 dt:12.3.2001, Drawn on State Bank of India, Vijay Nagar, New Delhi"
31.6. Defendant no.-2 in his cross-examination has feigned ignorance that the portions at Mark X, Y and Z in the sale deed Ex.PW-4/1 is typed by manual typewriter or not. However, it can be seen from the naked eyes that the aforesaid insertions have been made by using manual typewriter whereas the entire remaining sale deed is typed on computer. These insertions made later on in the sale deed Ex.PW-4/1 corroborates the version of the plaintiff that the sale deed was executed by defendant no.2 after the plaintiff refused to execute the sale deed.
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 34/4031.7. Perusal of record would also reveal that in the application for NOC Ex.PW-1/D1/5, permission for selling the agricultural land measuring 14 bighas 8 biswa in Khasra nos. 47/16(4-16), 46/21(4-16) and 20(4-16) for the sale consideration of Rs.14 lacs was sought from the revenue authorities but the sale deed Ex.PW-4/1 has been executed for 20 bigha 8 biswa of agricultural land and exactly 6 bigha of land comprised in Khasra no.46/19(4-16), 22/1(0-4), 22/2min(1-0) has been inserted later on which confirms tampering/manipulation in the sale deed. Another interesting aspect which is to be noted here is the sale consideration amount. As per the application Ex.PW-1/D1/5, 14 bighas 8 biswas of land was to be sold for Rs.14 lacs but in the sale deed 20 bigha 8 biswa of land has to be sold to defendant no.-1 for meager sum of Rs.4 lacs only. This further confirms that the sale deed Ex.PW-4/1 is not a genuine document but is a forged and fabricated document.
31.8. Further, cross-examination of DW-1 Gurcharan Singh with respect to the execution of the sale deed Ex.PW-4/1 would show that DW-1 has testified that he agreed to purchase the land measuring 20 bighas and 8 biswa at Ranholla Delhi through defendant no.-2 for Rs.4 lacs in March 2001. He further states that he is not aware when the sale deed was prepared and it was not prepared in his presence. He had not purchased the stamp papers for execution of sale deed and he is also not aware as to who has purchased the stamp papers on which the sale deed was prepared. DW-1 Gurcharan Singh admitted that he had prepared Bank Draft of Rs.14 lacs which were later on got canceled and thereafter he prepared two demand drafts of Rs.7 lacs each in the name of the plaintiff M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 35/40 and these two demand drafts were also got canceled on 07.03.2001 and later on he had issued cheque of Rs.4 lacs in the name of defendant no.-2 at the time of execution of the sale deed in his favour. He also could not recall as to how much land NOC was applied in his name and volunteered that NOC was obtained by the plaintiff. He could not recall if the NOC in his favour was applied for land measuring 14 bigha and 8 biswas.
31.9. The aforesaid testimony of DW-1 does not inspire any confidence. It is difficult to believe that a person purchasing a suit property would not be aware about basic facts such as who had purchased the stamp papers or who had got the sale deed prepared and for how much land NOC was applied. NOC application Ex.PW-1/D1/5 bears the signatures of DW-1 and it cannot be believed that DW-1 would have signed the document without going through its contents. It is also not the case of DW-1 that he had signed on blank NOC application form. Hence, in my considered opinion, the testimony of DW-1 is not at all reliable.
31.10.Another aspect of the matter is that plaintiff had filed a complaint against the defendants on which FIR No.443/2002 was registered at PS Nangloi. A charge sheet has been filed in the said case and certified copy of the charge sheet Ex.DW-2/P1 has been placed on record. Perusal of the chargesheet Ex.DW-2/P1 also shows that during the course of the investigation the original sale deed dated 05.03.2001 Ex.PW-4/1 was also seized by the IO and it was found that the insertions in the sale deed Ex.PW-4/1 were typed by manual typewriter. The IO also examined the M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 36/40 deed writer Ramdhari Singh Dhankar who admitted that he had typed three sale deeds on computer but also clarified that addition/correction made later on by manual typewriter were not made by him on the sale deed which again points out to the factum of forgery/manipulation in the sale deed Ex.PW-4/2 and raises serious doubts about its genuineness.
31.11.From the aforesaid discussion, I am of the considered opinion that the plaintiff has been able to prove by way of preponderance of probabilities that the sale deed Ex.PW-4/1 dated 05.03.2001 executed by defendant no.-2 in favour of defendant no.-1 is not a genuine and valid document as the same has been executed by defendant no.-2 without any lawful authority from the plaintiff and has no value in the eyes of law. Hence, the sale deed Ex.PW-4/1 is null and void ab initio and does not confer any right, title or interest in favour of defendant no.-1 and is liable to canceled. The plaintiff is entitled for the relied claimed by her.
32. Relief no.-2:-
It is an admitted fact that the plaintiff had already filed an application for cancellation of the mutation order dated 07.04.2001 before the ADM(West) and the said proceedings are pending adjudication. The revenue courts have exclusive jurisdiction to decide the issue of mutation/correction in entries in revenue records and the plaintiff has taken the legal remedies available to her under the law. Hence, I am of the considered opinion that no finding is required to be given on this issue by this Court.M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 37/40
33. Relief No.(3):-
The plaintiff has averred that the defendants no.1, 2 and 4 and their associates attempted to forcibly and illegally dispossess the plaintiff from the suit lands. On 07.06.2001, defendant no.-1, 2 & 4 alongwith their associates tried to forcibly and illegally cultivate the suit land but due to timely intervention of the husband of the plaintiff, his agent and labourers, defendants could not succeed in dispossessing the plaintiff from the suit land. On 03.07.2001, when the plaintiff and her husband were present on the suit lands, defendant no.1 and 2 threatened them with dire consequences if they dared to challenge their illegal acts and misdeeds in any court of law.
The defendants have denied the averments made by the plaintiff. Perusal of the affidavit Ex.PW-1/A filed by the husband of the plaintiff shows that PW-1 has reiterated these facts in para 29 of his affidavit. However, no other witness has been examined by the plaintiff in support of her averments. The plaintiff could have examined the agent of her husband or labourers who were present at the time of incident but none of these witnesses have been examined by the plaintiff nor any complaint to this effect has been proved on record. In the absence of any corroboration, either in oral or documentary form, I am of the considered view that the plaintiff is not entitled for this relief.
34. Relief No.(4):-
The plaintiff has claimed mandatory injunction for directing the defendant no.-2 to return the blank non judicial stamp papers, blank paper signed by her and by her son. She has also claimed mandatory M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 38/40 injunction for return of photographs, copy of election I cards of plaintiff, her husband, her major son and daughter from defendant no.-2. The plaintiff has not led any evidence in this regard nor she has given the details of the photo I cards of her family members. She has also not mentioned as to how many blank papers and blank non judicial were signed by her at the instance of defendant no.-2. In the absence of any specific averments in the evidence of PW-1, I am of the considered opinion that plaintiff is not entitled for this relief.
35. Relief no.-5:-
Plaintiff has claimed damages of Rs.50,000/- from the defendants for dragging the plaintiff into unnecessary litigation or for causing mental agony and physical harassment. However, no evidence has been led by plaintiff in support of her claim. Plaintiff has only examined her husband as PW-1 to prove this issue. There is no averment in the entire affidavit of PW-1 stating that plaintiff suffered any physical or mental harassment. Plaintiff has also failed to show as to how the damages have been quantified at Rs. 50,000/-. Hence, in the absence of any evidence in this regard, I am of the considered opinion that the plaintiff is not entitled for this relief.
In view of the aforesaid discussion, I am of the considered opinion that the plaintiff is only entitled for the relief no.1 hereinabove. The issue stands disposed off accordingly.
RELIEF:-
36. In view of my findings on the issues hereinabove, the suit is M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 39/40 decreed in favour of the plaintiff and against the defendants and the sale deed dated 05.03.2001 executed in favour of defendant no.-1 in respect of sale of agricultural land measuring 20 bighas 8 biswa comprising of Khasra nos. 47/16(4-16), 46/21(4-16), 46/19(4-16), 20(4-16), 21(4-16), 22/1(0-4), 22/2 min(1-0) situated in revenue estate of village Safirpur, Ranholla, Delhi, registered on 13.03.2001 vide Registration No.2586 in Addl. Book No.1, Vol. No.9845 on pages 114-120 is declared null and void and is hereby cancelled. Sub-Registrar-II is directed to make necessary endorsement regarding the cancellation of this sale deed in his records.
The suit of the plaintiff is dismissed qua the other reliefs claimed by her.
Plaintiff shall be entitled to proportionate costs of the suit. Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court (ANIL KUMAR SISODIA)
Dated : 28th October 2017 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
M/s Loharu Infrastructures Pvt. Ltd Vs. Gurcharan Singh & Ors. Page No. 40/40