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Delhi District Court

Shri Chand Singh vs Shri Anil Kumar Yadav on 31 July, 2015

   IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL 
 JUDGE: SOUTH WEST DISTRICT: DWARKA COURT: NEW 
                     DELHI 



C.S No:  184/14
Unique case ID No:  02405C0206792014



IN THE MATTER OF 


1.       Shri Chand Singh,
         S/o Shri Ram Singh
         R/o House No.237,
         Village Ghumman Hera, 
         New Delhi                            ...      Plaintiff 

                                    Versus 


1.       Shri Anil Kumar Yadav,
         S/o Shri Karan Singh
         R/o 270, Naharpur, Sector­7,
         Rohini, Delhi


2.       Shri Balraj Yadav,
         S/o Shri Jai Narayan
         R/o Village Pandwala Khurd, 
         New Dehi


3.       Shri Manoj Kumar

CS No. 184/14
Chand Singh Vs Anil Kumar & Ors  
Order dated  31.07.2015
                                                         Page no. 1  of   17
          S/o Shri S K Gupta,
         R/o 249A, Near Government School,
         First Old Telephone Exchange Lane,
         ABD Documents Shop,
         Thana Rd., Najafgarh, Delhi


4.       Shri Kishan Chand
         S/o Shri Laxmi Chand,
         R/o VPO Khaira,
         Delhi­110043


5.       Shri Ganga Ram,
         S/o Shri Nathu Ram,
         R/o VPO, Khaira, 
         Delhi­110043


6.       Tehsildar 
         Najafgarh District, South West,
         New Delhi­110043.


7.       Sub­Registrar,
         Kapashera, New Delhi
                                                    ...    Defendants 


ORDER 

1. By this order I will dispose off the application under Order 39 Rules 1 & 2 read with Section 151 CPC filed on behalf of the CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 2 of 17 plaintiff. Plaintiff has filed present suit for declaration & permanent and mandatory injunction against the defendants.

2. Brief case of the plaintiff as per plaint is that in the first week of June, 2001 the plaintiff executed a Bayana agreement with defendant nos.1 and 2 for his agricultural land measuring approximately 7 bighas for a total sale consideration of Rs. 8,50,000/­ and an amount of Rs.3,00,000/­ was fixed as earnest money. Defendant no.1 has got the agreement prepared in the name of his wife Smt. Asha Yadav and defendant no.2 who is brother of Smt Asha Yadav. Smt Rajni wife of the plaintiff on receiving the knowledge about aforesaid transaction, has filed a complaint before the Tehsildar­Najafgarh and Registrar, Kapashera to the effect that aforesaid land should not be allowed to be sold by the plaintiff. Subsequently, the aforesaid complaint was withdrawn by wife of plaintiff on 24.07.2001 on pursuation of the plaintiff and defendant nos.1 and 2 requested for extension of time for execution of registration of sale deed CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 3 of 17 and for payment of balance amount, though, they had agreed to pay further payment of Rs.3,00,000/­ at that stage. Thereafter, according to plaintiff, on 23.08.2001, defendant no.2 called plaintiff at his house for further signing on Bayana agreement and then, he took the plaintiff to SDM Office, Kapashera. Thereafter, according to plaintiff, defendant no.3 insisted and got the plaintiff's signatures and finger prints on approximately 15 documents, few of which were blank and other were in English representing him that same are necessary for extension of time in the Bayana Agreement. Thereafter, defendant no.2 took plaintiff to his house and handed over a cheque of Rs. 3,00,000/­ signed by Smt Asha Yadav and said cheque on presentation has been dishonoured due to insufficient funds on 28.08.2001. Defendant nos.1 and 2 were informed about the same and they assured the plaintiff that they would make payment of Rs.5,50,000/­ at the time of execution of sale deed.

3. Thereafter, they kept on avoiding to make payment of balance CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 4 of 17 amount and registration of sale deed on the one pretext or other. The plaintiff also did not doubt about their intention in as much as suit property has always been in his possession and he was informed that he can cultivate the same. Thereafter, according to plaintiff, since defendant nos.1 and 2 failed to make payment of balance consideration amount despite expiry of considerable period of time, the environment in his house with his wife was very quarrelsome and during inter­conflicts between them on 27.02.2003, the wife of plaintiff died and plaintiff became a life­convict thereafter. Thereafter, according to him, during 17.12.2009 to 17.01.2010 he was released on parole and he obtained Fardh of the suit property from the office of Tehsildar whereupon he had come to know that wife of defendant no.1 and defendant no.2 had got aforesaid property registered in their names which was evident from perusal of entries dated 12.09.2001 in Dakhil Kharij register. As per aforesaid entries, according to plaintiff, share of Smt Asha Yadav had been got CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 5 of 17 transferred to defendant no.1 herein on her demise on 04.07.2008. Thereafter, plaintiff visited the defendants and confronted the defendants with aforesaid facts about fraudulent transfer by them of his property in their names by forging documents. Defendant nos.1 and 2 stated that plaintiff can not do anything at this stage since long time has passed since execution of the aforesaid documents. According to plaintiff, the suit property was registered in the name of defendants in back date on the basis of forged and fabricated documents procured by plaintiff by way of fraud. Accordingly, during January­February 2010 he asked Tehsildar, Najafgarh that on what basis title of suit property has been transferred by him in favour of defendant nos.1 and 2. He has also requested Tehsildar to provide a copy of order to the plaintiff but no information was provided by Tehsildar to him. When the plaintiff did not get any response from Registrar, Kapashera even after filing of several RTI applications in the month of March­2010, on CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 6 of 17 11.05.2010, he has sent an appeal to Deputy Commissioner through Jail Superintendent, as a result of which, plaintiff was allowed to inspect the title documents on any working day. Thereafter, according to plaintiff, he has inspected the records on 30.07.2010 while he was on custody parole. According to him, he came to know during aforesaid inspection about execution of SPA which was allegedly executed by plaintiff in favour of one Shri Manoj Kumar S/o Shri S K Gupta on the basis of which suit property was mutated in the name of defendant nos.1 and 2. When the aforesaid SPA was shown by him to the lawyers who visited the jail, he was informed that as per Special Power of Attorney suit property had already been sold to Smt Asha Yadav and Shri Balraj Yadav and plaintiff had given right of registering the suit property to Shri Manoj Kumar. Subsequently, according to plaintiff, during parole plaintiff came to know about the sale deeds registry No.2959 and 2960 dated 29.08.2001. Thereafter, he obtained certified CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 7 of 17 copies of the same and on perusal of the same he has come to know that some persons impersonated the plaintiff before the Registrar. Subsequently, plaintiff's photograph has been placed over the impersonator's picture. He has never presented himself before the concerned Registrar and as such aforesaid sale deeds according to plaintiff are forged and fabricated. By way of present suit, plaintiff has prayed for decree of declaration by declaring the registered sale deeds as null and void.

4. It has further been alleged by the plaintiff in the plaint that defendants are trying to sell/create third party interest over the suit property in as much as they had already get the suit land mutated in their names. Thus, plaintiff has further prayed for a decree for permanent injunction restraining defendants from transferring, alienating or creating any third party interest over the suit property. Plaintiff has also prayed for a decree for mandatory injunction directing the defendant no.6 to carry out mutation in the name of plaintiff. Plaintiff has made the said CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 8 of 17 Shri Manoj Kumar alleged attorney of the plaintiff and witnesses to the aforesaid registered sale deeds as party/defendants in the present suit, besides, Tehsildar­ Najafgarh and Sub­Registrar, Kapashera.

5. Upon receipt of plaint, summons of suit of the plaintiff were directed to be issued to all the defendants. All defendants were duly served with summons of suit. However, none had appeared on behalf of defendant nos.3 to 5 and defendant no.7. Written statement was filed on behalf of defendant nos.1 and 2 on 27.10.2014 whereas no written statement was filed by defendant nos.3 to 7. Defendant nos.3 to 7 were accordingly proceeded ex parte vide order dated 30.01.2015 and their defence was struck off.

6. Case of the defendant nos.1 and 2 as per their written statement is that the suit property has already been sold by plaintiff to wife of defendant no.1 and to defendant no.2 for total consideration of Rs.80,000/­ by way of two separate sale deeds. CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 9 of 17 According to them, no Bayana agreement in writing was ever executed between parties and registered sale deeds have been executed by plaintiff in the name of wife of defendant no.1 and defendant no.2 on the basis of oral agreement. According to defendant nos.1 and 2, they are in possession of the suit property and plaintiff has got no right, title or interest in the suit land. According to them, present suit of the plaintiff is barred by limitation in as much as sale deeds in respect of which plaintiff is seeking declaration are dated 28.07.2001. Besides, according to them, plaintiff has failed to comply with statutory requirements of service of notice under Section 80 of CPC before impleading defendant nos.6 and 7 as parties in the present suit. It has further been submitted by defendant nos.1 and 2 that present suit is bad for non­joinder or mis­joinder of the parties in as much as defendant no.1 has never been a party to alleged sale deeds. It is submitted on behalf of counsel for defendant nos.1 and 2 that since plaintiff is not in possession of CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 10 of 17 the suit property, present suit of the plaintiff for declaration is not maintainable in the absence of relief of possession. Besides, according to him, since suit property is an agricultural land and is governed by the provisions of Delhi Land Reforms Act and Rules framed thereunder, this court has no jurisdiction to entertain and try the present suit. Besides, according to them, relief of mutation is outside the jurisdiction of this court in as much as same is within jurisdiction of Revenue Courts. It is further submitted on behalf of defendant nos.1 and 2 that plaintiff was required to challenge both sale deeds by way of two separate suits and two sale deeds in one suit could not have challenged by him. Besides, according to them, having executed the sale deeds plaintiff could not have sought the relief prayed for by him in the plaint. It is further submitted by defendant nos.1 and 2 that plaintiff has failed to pay requisite court fees as he is required to pay the advolurem court fees as per market rate of the suit property.

Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 11 of 17

7. No replication to written statement of defendant nos.1 and 2 was filed by plaintiff. Accordingly, at joint request of parties, arguments were heard on the application under Order 39 Rule 1 and 2 read with Section 151 CPC on 20.07.2015.

8. It is submitted by counsel for plaintiff that in view of submissions made by the plaintiff in his application under Order 39 Rule 1 and 2 read with Section 151 CPC, defendants may be restrained from selling, transferring, alienating or creating any third party right, title or interest over the suit property till final disposal of the present suit in as much as according to him, plaintiff has been able to prove prima facie case in his favour. Balance of convenience according to him lies in his favour in as much as plaintiff is seeking declaration of aforesaid two sale deeds as null and void and if during pendency of present suit defendants are able to create any third party right, title or interest in the suit land, plaintiff shall suffer irreparable loss in as much as he will be deprived of his rights CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 12 of 17 in respect of the suit land.

9. On the other hand, it is submitted by counsel for defendant nos.

1 and 2 that present suit of the plaintiff is hopelessly barred by limitation and as such, plaintiff has failed to prove the existence of any cause of action in his favour and against the defendants much less any prima facie case in his favour for grant of the aforesaid injunction. He submits that defendants are registered owner of the suit property and as such, no injunction can be granted against them at the instance of plaintiff who has got no right, title or interest over the same.

10.I have heard submissions on behalf of parties and have perused the record.

11. A bare perusal of plaint shows that as per plaintiff he had come to know about existence of registered sale deeds in question only on 30.11.2011. Though, according to him, he had come to know about mutation of the suit property in the name of CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 13 of 17 defendant nos.1 and 2 much prior to the aforesaid date i.e. in the year 2009­10. It is submitted by counsel for defendant nos.1 and 2 that it is hard to believe that despite obtaining the certified copy of khatoni in the year 2009, plaintiff could not come to know about existence of registration of sale deed till 30.11.2011 as alleged by him. It is submitted by him that in para no.20 of his plaint, plaintiff has alleged that he was allowed the inspection of documents by Deputy Commissioner and said inspection was done by him on 30.07.2010. Thus, according to him, even if it is assumed for the sake arguments that plaintiff was not aware of the nature of documents executed by him in the year 2001 but he had definitely come to know about the same on 30.07.2010 when he had admittedly inspected the records of Tehsildar's office and as such period of limitation for filing of present suit for declaration started running from aforesaid date. Thus, according to him, suit of the plaintiff is clearly barred by limitation having been filed by plaintiff after CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 14 of 17 expiry of period of three years from alleged knowledge of plaintiff about execution of aforesaid documents.

12. In view of aforesaid rival contentions of parties, it is difficult for the court to ascertain at this stage as to what is the exact date of knowledge of the plaintiff regarding execution of alleged sale deeds. The issue of the limitation is mixed question of law and fact, which can be determined after leading of detailed evidence on behalf of parties. Admittedly, defendant nos.1 and 2 are claiming their title over the suit property on the basis of registered documents. There is presumption regarding genuineness of registered documents and though, aforesaid presumption is rebuttable in nature but the same can be rebutted by the plaintiff by leading evidence in support of his averments in the plaint. At this stage, there is no sufficient material on record before this court to ascertain whether or not any fraud as alleged by the plaintiff has been committed by the defendants and whether the documents i.e registered sale deeds are forged CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 15 of 17 and fabricated. Under the aforesaid circumstances, though, no interim order restraining defendants from creating any third party right, title or interest can be passed in favour of the plaintiff at this stage, however, in view of the fact that plaintiff has challenged the registered sale deeds dated 29.08.2001 being forged and fabricated and has sought declaration to be declared the same as null and void, I deem it appropriate to direct the parties to maintain status quo in respect of ownership of the suit property so that no innocent party is embroiled in unnecessary litigation by creating any third party right, title or interest over the suit property during pendency of the present suit. Parties are accordingly directed to maintain status quo in respect of ownership of the suit property during pendency of the present suit.

13. The application of the plaintiff under Order 39 Rule 1 and 2 read with Section 151 CPC is accordingly disposed of.

14. Needless to observe that nothing expressed herein shall be CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 16 of 17 deemed to be an expression of opinion on merits of the case.

15. Ordered accordingly.

Announced in the open court on this 31st of July, 2015 This order consists of seventeen signed pages.

(Arun Kumar Garg) Civil Judge(SW)/Dwarka Courts New Delhi/31.07.2015 (mk) CS No. 184/14 Chand Singh Vs Anil Kumar & Ors Order dated 31.07.2015 Page no. 17 of 17