Delhi District Court
Pratap Rai Kalra vs Ms Sartaj Textile Processers on 9 December, 2024
IN THE COURT OF SH. PARVEEN SINGH,
DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 618509/2016
CNR No. DLCT010003242005.
Pratap Rai Kalra,
S/o Sh. J. D Kalra
R/o F-84, Naraina Vihar,
New Delhi-110028. ...Plaintiff.
Versus
1. Sartaj Textile Processors,
Through its Partner
Himmat Ram Sharma,
Plot no. 1510-1-31,
Daulatabad Road,
Gurgaon (Haryana).
Second Address:
Ms. Namrata,
Partner of Sartaj Textile,
50B, 1st Floor,
Audhaya Apartments,
Plot no. 30, Sector 13,
Rohini, New Delhi.
2. Dayal Dass Kalra,
s/o Sh. Bhiman Dass Kalra,
G-139, 2nd Floor, Naraina Vihar,
New Delhi-110028.
3. Navtej Singh,
s/o Sh. Harbhajan Singh,
r/o J-12/21, Rajouri Garden,
New Delhi-110027. ...Defendants
CS No. 618509/2016 Digitally
No. 1 of 23
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2024.12.09
16:28:30
+0530
Date of Filing : 24.01.2005.
Date of Arguments : 19.11.2024.
Date of Judgment : 09.12.2024.
SUIT FOR POSSESSION , RECOVERY OF MESNE PROFITS AND
DAMAGES
JUDGMENT
1. The present suit for recovery of possession, mesne profits and damages has been filed by the plaintiff against the defendants.
2. Briefly stated the case of the plaintiff as per the plaint is, that plaintiff is the owner of entire premises bearing no. B-221, Naraina Industrial Area Phase, New Delhi, measuring 600 sq. yards. The plaintiff is in possession of entire premises except the area let out to M/s Sartaj Textile Processors. The defendant is a partnership firm. Defendant had filed a civil suit against the plaintiff and one Sh. Dayal Dass Kalra. In the said suit, defendant averred that the rate of rent of the tenanted portion was Rs.9,000/- per month and it was being paid to one Sh. Ashok Kumar (cousin brother of plaintiff) who claimed that he was the owner of the property. Defendant further averred in that suit that he had been a tenant of the tenanted portion for last 20 years and had been paying rent to Dayal Dass Kalra since September 1999. It was further averred in the said suit that Pratap Rai Kalra (plaintiff) was insisting that the rent should be paid to him. Plaintiff contested the said suit and relied upon the documents including the settlement deed to show that he was the owner of the tenanted premises. It is further submitted that after the execution of deed of settlement between plaintiff and Dayal Dass, plaintiff, since the first week of January 2022, had been approaching CS No. 618509/2016 Digitally signed by PARVEEN No. 2 of 23 PARVEEN SINGH Date:
SINGH 2024.12.09 16:28:39 +0530 defendant to vacate the tenanted premises and to pay the rent including the arrears @ Rs.12,500/- per month. However, defendant, instead of vacating the tenanted premises and paying rent, filed the aforesaid suit against the plaintiff and Sh. Dayal Dass Kalra. Finally the plaintiff issued a notice dated 08.11.2004 to the defendant calling upon him to vacate the tenanted premises on or before midnight of 30.11.2004. However, despite receipt of notice, defendant did not comply with it and hence, he was liable to pay damages @ Rs.36,000/- per month. It is further submitted that since January 2002, defendant had not paid rent @ Rs.12,500/- per month. Hence, the present suit seeking possession of rear portion of B-221, Ground Floor, Naraina Industrial Area Phase I, New Delhi and arrears of rent and damages of Rs.5,09,500/-.
3. On being served with the summons, defendant filed his written statement.
4. Initially, suit was filed against defendant no. 1. On 10.08.2006, on an application under Order I Rule 10 CPC, Dayal Dass Kalra was impleaded as defendant no. 2. On 10.08.2006, on an application under I Rule 10 CPC, Navtej Khurana was impleaded as defendant no. 3.
5. In the written statement filed on behalf of defendant no. 1, a preliminary objection was taken that there was no cause of action for filing the present suit as there was no relationship of landlord and tenant between the parties. A further preliminary objection was taken that the settlement deed, on the basis of which the plaintiff was claiming to have title, was false and forged document. Even otherwise, settlement deed could be arrived only between the co-sharer/ co-owner of the properties CS No. 618509/2016 Digitally signed by No. 3 of 23 PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:28:48 +0530 but since none of the parties to the settlement deed had any title in the property, the said settlement deed was baseless. Sh. Dayal Dass Kalra, who was receiving the rent, had never informed the defendant to make payment of rent to the plaintiff. A further preliminary objection was taken that in view of the document titled as Deed of Rental Commission Agreement dated 27.10.1999, no tenancy existed between the parties. A further preliminary objection was taken that the suit was bad for non joinder of necessary parties.
6. On merits, it was submitted that the plaintiff was neither the owner of property no. B-221, Naraina Industrial Area, Phase-I, New Delhi nor had he filed any documents indicating his ownership. It was submitted that plaintiff had never served any notice upon the defendant regarding what he had alleged in the present suit and if he would have acquired the rights in the year 2001 by way of settlement deed, he could have written it. It was further submitted that the settlement deed was no document for transfer of property under law. It was further submitted that defendant had filed a civil suit bearing no. 449/2004 against the plaintiff and Sh. Dayal Dass Kalra and the same was pending. The plaintiff had no right in the property in question. Rest of the averments made in the plaint were denied.
7. In the written statement filed on behalf of defendant no. 2, a preliminary objection was taken that defendant no. 2 was the owner of the suit property. Plaintiff had no right, title or interest in it. It was further submitted that defendant no. 2 is a citizen of Pakistan. Vide perpetual lease dated 02.12.1969, President of India had granted on perpetual lease the property no. 221, Naraina Industrial Area, Phase I, CS No. 618509/2016 Digitally signed by PARVEEN No. 4 of 23 PARVEEN SINGH SINGH Date:
2024.12.09 16:28:56 +0530 New Delhi to M/s S.N Ahuja Metal Industries. Sh. Shiv Narain Ahuja was the sole proprietor of M/s S.N Ahuja Metal Industries. The perpetual lease was registered. The suit property formed part of the said property. After the death of S.N Ahuja, his LRs agreed to sell the suit property to answering defendant for a consideration of Rs.2 lacs. The answering defendant paid Rs.50,000/- as advance payment and remaining money was paid which was acknowledged vide receipt dated 20.02.1980. It was further submitted that plaintiff is the son of a cousin of answering defendant. He offered to help the answering defendant in the management of property and in completing formalities of the sale of the suit property in favour of answering defendant. Answering defendant had also given the plaintiff a license to use some portion of the suit property. However, plaintiff in breach of trust, trespassed into some other areas of the suit property and started falsely alleging his ownership in the suit property. It was further submitted that the answering defendant had filed a suit for possession, damages and permanent injunction against the plaintiff.
8. On merits, it was submitted that the alleged settlement deed was a forged document. Defendant no. 2 had never signed or executed any settlement/ relinquishment deed. It was submitted that the plaintiff had no right, title or interest in the suit property and therefore, plaintiff had no reason to approach the defendant to quit or to demand possession of the tenanted premises from defendant no. 1.
9. In the written statement filed on behalf of defendant no. 3, a preliminary objection was taken that on 04.07.2005, after accepting the valid consideration, plaintiff had sold the premises bearing no. B/221, CS No. 618509/2016 Digitally signed by PARVEEN PARVEEN SINGH No. 5 of 23 SINGH Date:
2024.12.09 16:29:18 +0530 Naraina Industrial Area, Phase I, New Delhi to defendant no. 3 i.e. Navtej Singh Khurana and Smt. Varinder Kaur and had executed valid documents. Thus, other defendants had no right, title or interest in the suit property. The suit of the plaintiff was liable to be dismissed in view of clause no. 2 of the agreement to sell that since major portion of the suit premises was under unauthorized occupancy as such the plaintiff had delivered symbolic possession of the suit premises to the answering defendant. It was agreed between plaintiff and answering defendant that plaintiff would get the unauthorized occupants evicted from suit property.
10. On merits, it was admitted that the plaintiff was the owner of the premises bearing no. B/221, Naraina Industrial Estate, New Delhi. Defendant no. 2 was a Pak national and had no right in the suit property.
11. In the replications filed to the written statements, the averments of the plaint were reaffirmed.
12. Thereafter, vide order dated 03.01.2011, following issues were framed:-
1. Whether the Settlement Deed entered between the plaintiff and Sh. Dayal Das Kalra is false and forged as claimed by the defendant? OPD.
2. Whether the defendant no. 2 is owner of suit property i.e. B-221, Naraina Industrial Area, New Delhi? OPD.
3. Whether the plaintiff is entitled for a decree of possession, mesne profit and damages as claimed? OPP
4. Whether the defendants had any right to give possession of the Digitally signed by PARVEEN CS No. 618509/2016 PARVEEN SINGH SINGH Date:
2024.12.09 No. 6 of 23 16:29:27 +0530 suit premises to the plaintiff or defendant no. 3? OPD 1 & OPD3.
5. Relief.
13. During the trial of the case, defendant no. 2 Dayal Dass Kalra had expired and vide order dated 14.07.2016, his LRs i.e. his wife and three sons were impleaded in his place.
14. Thereafter, the parties led their respective evidence. Plaintiff examined himself as PW1, Sh. Ashwani Kumar from Office of Sub Registrar as PW2, Sh. Vipan Kumar Kalra as PW3, Sh. Sevajit from Department of Delhi Archives as PW4 and Sh. Ganga Ram Kataria as PW5. On the other hand, defendant no. 3 examined Sh. Punmeet Singh Khurana as D3W1.
15. Defendants no. 1 and 2 were proceeded ex-parte on 13.03.2024.
16. On 19.11.2024, with the consent of the parties, issue no. 1 was re-cast and re-framed as under:-
1. Whether the settlement deed was executed between the plaintiff and defendant Dayal Dass Kalra and if so, its effects? OPP.
17. I have heard learned counsels for the parties and carefully perused the record.
18. My issue wise findings are as under:-
ISSUE NO. 11. Whether the settlement deed was executed between the plaintiff and defendant Dayal Dass Kalra and if so, its effects? OPP.
19. Plaintiff has claimed that there was a settlement deed executed between the plaintiff and one Dayal Dass Kalra and vide the CS No. 618509/2016 No. 7 of 23 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:29:35 +0530 said settlement deed, Dayal Dass Kalra had relinquished all his rights in respect of the property in question i.e. B-221, Naraina Industrial Area.
20. Appearing as PW1, he deposed on these lines and stated that the said settlement deed was executed by Dayal Dass Kalra and it was exhibited as Ex.PW1/4. At that time, an objection was taken regarding the exhibition of this document on account of mode of proof.
21. During the cross examination on behalf of defendant no. 2, he deposed that the original settlement deed had been lost and volunteered, that he had filed a police complaint about it. This settlement deed was executed in Pakistan. The settlement deed was witnessed by Sh. Sudham Chand Chawla and Sh. Ghanshyam Dass Dudeja. Both of them had died. He had no documentary evidence to show that they had died. He denied that the said persons were still alive. The families of the said persons lived in Pakistan. He was not aware about their particulars. He denied that these persons had not signed the settlement deed Ex.PW1/4 in any capacity. He denied that no settlement was arrived between him and Dayal Dass Kalra. He denied that he had forged the signatures of Dayal Dass Kalra on the settlement deed propounded by him. He denied that it was for this reason that he had created a false story of original settlement deed having been stolen. He admitted that the settlement deed did not have the thumb impressions of Dayal Dass Kalra. He admitted that Dayal Dass Kalra did not go with him to the office of Sub Registrar at Delhi for registration of settlement deed and volunteered, that Dayal Dass Kalra was not in India at that time. He admitted that the witnesses to the original settlement deed did not accompany him to the office of Sub Registrar at Delhi. He denied Digitally CS No. 618509/2016 signed by PARVEEN No. 8 of 23 PARVEEN SINGH SINGH Date:
2024.12.09 16:29:45 +0530 that he had never had any right, title or interest in any portion of the suit property or that Sh. Dayal Dass Kalra remained the sole and exclusive owner of the suit property and after his death, it had been devolved upon his LRs.
22. The next witness examined by plaintiff is PW2 Ashwani Kumar, CDV from the office of Sub Registrar-IX, Kapashera, New Delhi. He had brought book no. 1, Volume no. 805 where at sl no. 5876 from pages no. 71 to 73, deed of settlement was registered. The said deed of settlement on the record of Sub Regisrar was the same as Ex.PW1/4.
23. During his cross examination, he deposed that he could not answer whether Dayal Dass Kalra had appeared before Sub Registrar for the registration of this document or not because at that time, he was not posted in Delhi.
24. Then there is another witness which was examined by plaintiff to prove this settlement deed. The said witness is PW5 Ganga Ram Kataria.
25. He deposed that he knew plaintiff and Dayal Dass Kalra for about 35 years. Whenever Dayal Dass Kalra would visit Delhi, he would make it a point to see him. Otherwise also, he was in regular touch with Dayal Dass Kalra on telephone and by inquiring from common acquaintances, who had been travelling India and Pakistan. Dayal Dass Kalra informed him that the property bearing no. B-221, Naraina Industrial Area, Phase I, New Delhi had been purchased where he alongwith Pratap Rai Kalra had equal interest and also told him that the property was acquired by running a business of the allottee as both had CS No. 618509/2016 No. 9 of 23 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2024.12.09 16:29:54 +0530 become partners in the said business. Both Dayal Dass Kalra and Pratap Rai Kalra had been doing business from this property and Pratap Rai Kalra was looking after the business of M/s S.N Ahuja Metal Industries as he used to be in Pakistan. Certain differences arose between Dayal Dass Kalra and Pratap Rai Kalra and he came to know that in order to settle the same, Pratap Rai Kalra was travelling to Pakistan. In December 2001, he received a call from Dayal Dass Kalra, who was in Pakistan. Dayal Dass Kalra informed him that he had arrived at a settlement with Pratap Rai Kalra and had relinquished his rights in property at Naraina whereafter it had become the exclusive property of Pratap Rai Kalra. Dayal Dass Kalra further requested him that since there was tension between India and Pakistan, he could not travel to India and it was Mr. Pratap Rai Kalra who was carrying back the settlement/ relinquishment deed in person. Dayal Dass Kalra further told him that one Mr. R.K Kohli, who was also a friend and lawyer by profession, had been asked that two of them should help Pratap Rai Kalra in legal formalities so that the document which had been executed by him and Pratap Rai Kalra should meet the legal requirements and becomes acceptable in India. Pratap Rai Kalra showed him the settlement/ relinquishment deed dated 27.12.2001. Certified copy of deed of settlement was shown to him by Pratap Rai Kalra who stated that it had been filed on court record and was exhibited as Ex.PW1/4. He identified the signatures of Pratap Rai Kalra and Dayal Dass Kalra on this document. He had seen Dayal Dass Kalra and Pratap Rai Kalra signing on various documents. Thereafter, he and Sh. R.K Kohli visited the office of Sub Registrar on the instructions of Pratap Rai Kalra.
Digitally
CS No. 618509/2016 signed by
PARVEEN
PARVEEN SINGH
No. 10 of 23 SINGH Date:
2024.12.09
16:30:02
+0530
Pratap Rai Kalra cleared the formalities. He and Sh. R.K Kohli signed before Sub Registrar and their photographs were also taken at the Sub Registrar Office. After completing the formalities, he intimated Dayal Dass Kalra. After witnessing this document, he had met Dayal Dass Kalra a number of times.
26. During his cross examination, he deposed that he could read English but could not understand the meaning of the same. He further deposed that he could read his affidavit but could not affirm the contents of the same. He further deposed that he had never visited any oath commissioner for attestation of affidavit Ex.PW5/A. He could not tell the date of birth of Dayal Dass Kalra or education level of Dayal Dass Kalra or the address of Dayal Dass Kalra in Pakistan. He also could not tell the name of brothers, sons and daughters of Dayal Dass Kalra. He did not remember when was the last time when Dayal Dass Kalra visited India or when he had met Dayal Dass Kalra. He did not remember the phone number on which he lastly talked to Dayal Dass Kalra. He did not remember the names of any acquaintances between him and Dayal Dass Kalra from whom he used to make inquiry about Dayal Dass Kalra. He had no knowledge whether Dayal Dass Kalra and Pratap Rai Kalra were partners in any business or whether there was any property in India in which Pratap Rai Kalra or Dayal Dass Kalra had equal interest. He did not know whether there were any differences between Dayal Dass Kalra and Pratap Rai Kalra. He had never received any call from Dayal Dass Kalra to the effect that Dayal Dass Kalra and Pratap Rai Kalra had ever arrived at a settlement. He admitted that he had not received any communication from Dayal Dass Kalra about relinquishing his rights in CS No. 618509/2016 Digitally signed by No. 11 of 23 PARVEEN SINGH PARVEEN SINGH Date:
2024.12.09 16:30:11 +0530 the suit property in favour of plaintiff. He did not know if Dayal Dass Kalra was the exclusive owner of property no. B-221, Naraina Industrial Area, Phase I, Delhi. Sh. Dayal Dass Kalra had never requested him that he was not in a position to travel India as there was tension between India and Pakistan. He did not know any person by the name of Sh. Sudham Chand Chawla and Sh. Ghanshyam Dass Dudeja. Then he was shown the signatures of plaintiff on the plaint and of Dayal Dass Kalra on the written statement. Seeing them, he stated that he could not tell to whom these signatures belonged. He had never seen Dayal Dass Kalra signing any document. He had seen Pratap Rai Kalra signing the documents but he could not tell about those documents. He could not tell who had signed Ex.PW1/4 at points A and B.
27. On being asked, if he had seen Pratap Rai Kalra signing any document, he answered in negative.
28. He did not know any person named R.K Kohli. He did not remember if he had visited any government authority with R.K Kohli. Sh. Dayal Dass Kalra had never told him about execution of any document in Pakistan in favour of plaintiff. Sh. Pratap Rai Kalra never shown him any document of settlement. Pratap Rai Kalra had never shown him any certified copy of settlement dated 27.12.2001. He had never been asked by anyone to appear before the Sub Registrar Office. He did not remember whether he had visited the Sub Registrar Office in 2002. He had never visited any Sub Registrar office in Delhi with plaintiff.
29. From the aforesaid evidence, it is very much clear that the plaintiff had propounded a settlement deed (Ex.PW1/4) but did not CS No. 618509/2016 No. 12 of 23 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2024.12.09 16:30:20 +0530 produce the original settlement deed. When his examination in chief was recorded, he merely produced the certified copy of settlement deed and stated that the original had been lost by him and he had filed a police complaint in this regard but he did not produce the said police complaint. Thus, he failed to prove the basic fact which would necessitate him to lead secondary evidence of this deed and dispense with the production of the original of this document. He was asked about the witnesses to this deed and he stated that those persons had died but he did not have any documentary evidence to prove this fact. He did not produce any witness who even identified signatures of the said witnesses. It was specifically suggested to him that he had forged the signatures of Dayal Dass Kalra on settlement deed and that is why he created a false story that the original settlement deed had been lost.
30. Somehow this settlement deed was registered with the office of Sub Registrar. It has been argued by ld. Counsel for plaintiff that as the settlement deed is a registered document, there is a presumption in favour of this document that it was properly executed.
31. As per the settlement deed (Ex.PW1/4), Sh. Dayal Dass Kalra was party no. 1 i.e. the first party and Pratap Rai Kalra was party no. 2 i.e. the second party. However, before the Sub Registrar, for party no. 1, there appears to be thumb impression but how could there by the thumb impressions of Dayal Dass Kalra, who admittedly had not appeared before the Sub Registrar for registration of this deed. This also is sufficient to cast a doubt on the entire process of registration of this deed.
32. There are no signatures of Dayal Dass Kalra before Sub CS No. 618509/2016 No. 13 of 23 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:30:30 +0530 Registrar and therefore, merely registration of document would not prove that it was executed by Dayal Dass Kalra.
33. Therefore, it was necessary to produce the witnesses of this deed about whom plaintiff conveniently stated, without giving any documentary evidence, that they had died. Defendant Dayal Dass Kalra had categorically denied his signatures upon this document and execution of this document and therefore, the onus was upon the plaintiff to prove this document and in order to discharge this onus, plaintiff produced PW5 Ganga Ram Kataria as a witness to this document.
34. The cross examination of PW5 reveals that his testimony in examination in chief was a complete falsehood. On the one hand, he recognized the signatures of Pratap Rai Kalra and Dayal Dass Kalra on this document claiming that it was shown to him by Pratap Rai Kalra at the time of his visit and on the other hand, he fails to recognize their signatures on the plaint and the written statement respectively. Not only this, he goes on to state that he had never seen Ex.PW1/4. Over and above, he further stated that he had never seen Pratap Rai Kalra and Dayal Dass Kalra signing any document. Thus, even through this witness, plaintiff failed to prove that Ex.PW1/4 bore the signatures of Dayal Dass Kalra.
35. Thereafter, the entire story about Dayal Dass Kalra giving instructions to PW5 to complete registration process on telephone again falls flat when he stated that he had never received any such instructions and never received any phone call from Dayal Dass Kalra and that Dayal Dass Kalra had never ever communicated to him about relinquishing his CS No. 618509/2016 Digitally signed by No. 14 of 23 PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:30:40 +0530 rights in the suit property in favour of the plaintiff.
36. Initial onus to prove, that the settlement deed (Ex.PW1/4) was executed, is upon the plaintiff because it is the plaintiff who shall fail if this fact is not proved and further because it is the plaintiff who had propounded this settlement deed, execution of which had been denied by Dayal Dass Kalra.
37. From the evidence led on behalf of the plaintiff, as discussed above, it is clear that plaintiff has miserably failed to prove this settlement deed. The deed was allegedly executed in Pakistan. The executor Dayal Dass Kalra had denied the execution of this deed and therefore, the only way to prove the execution of this settlement deed was through the witnesses of this deed. None of the witnesses of the settlement deed were examined by the plaintiff and he had merely stated that they had since died. However, no evidence was produced on record to show that the witnesses were no more. Even if they were no more, the persons versed with the signatures of those witnesses should have been produced. However, no such effort was made on behalf of the plaintiff.
38. My opinion is further strengthened by the fact that plaintiff in fact produced a false witness who was mere a witness to the registration of this settlement deed. This witness not only claimed that he was a witness to the registration of this deed but also stated that he had done so on the instructions of Dayal Dass Kalra but as discussed above, this witness completely fell apart during his cross examination and was established a liar on almost all of the facts deposed by him.
39. I accordingly find that the plaintiff has failed to prove that there was a settlement deed executed between him and Dayal Dass Kalra CS No. 618509/2016 No. 15 of 23 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:30:47 +0530 by virtue of which he became the owner of this property. Issue no. 1 is accordingly decided against the plaintiff.ISSUE NO. 2
2. Whether the defendant no. 2 is owner of suit property i.e. B-221, Naraina Industrial Area, New Delhi? OPD.
40. The onus to prove this issue was upon the defendant no. 2. No evidence was led on behalf of the said defendant on this issue.
41. However, the claim of the plaintiff is that the settlement deed dated 27.12.2001 (Ex.PW1/4) was executed between him and Dayal Dass Kalra and vide the said settlement deed, Dayal Dass Kalra had relinquished all his rights in respect of property no. B-221, Naraina Industrial Area Phase, New Delhi.
42. Plaintiff appearing as PW1, on this issue, deposed that he was the owner of the entire suit property measuring 600 sq. yards and had relevant documents in his possession to prove his ownership. The property was initially allotted/ purchased from DDA by Sh. S. N Ahuja in the name of M/s S.N Ahuja Metal Industries. The copy of perpetual lease was Ex.PW1/2. The firm was a partnership firm at the time of death of Sh. S.N Ahuja and the sons of S.N Ahuja were the partners. He further deposed that the LRs of S. N Ahuja had executed a General Power of Attorney in his favour, copy of which was Ex.PW1/3. The partnership deed executed between one of the LRs, him and one Dayal Dass Kalra was marked as Mark X and subsequently, the partnership was dissolved and a fresh partnership deed was made on 09.09.1980. Copy of the dissolution deed and partnership deed were marked as Mark CS No. 618509/2016 Digitally signed by No. 16 of 23 PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:30:56 +0530 X1 and X2. He further deposed that for all the purposes, he feels that it would be suffice if he files last document which was indicated that he had a complete domain and control over the premises. The said document evidencing this fact is the settlement deed Ex.PW1/4 which was executed by Dayal Dass Kalra.
43. When he tendered his examination in chief, as the originals of perpetual lease (Ex.PW1/2) and GPA by the LRs (Ex.PW1/3) were not produced in original and they were marked as Mark A and B.
44. Later on through the evidence of PW4 Sevajit, Record Attendant from Delhi Archives, the GPA, mark B, was exhibited as Ex.PW4/1 as he had produced the record of the said GPA from his department.
45. During cross examination of PW1 on behalf of defendant no. 2, he admitted that the previous owner was M/s S.N Ahuja Metal Industry, proprietor of which was Sh. S. N Ahuja. He admitted that an agreement to sell dated 15.12.1979 was executed by LRs of Sh. S.N Ahuja in favour of Dayal Dass Kalra and volunteered, that a special power of attorney had been executed in his favour. There was a mention of sale of property to him. He was then confronted with GPA (mark B) which was then exhibited as Ex.PW1/DX1 and asked whether was mentioning of sale of property to him. He reiterated that there was mentioning of sale of property to him. He further deposed that he could not show any document to prove that the property had ever been sold to him or he had ever purchased it. He admitted that the sale consideration was paid by a receipt and Ex.PW1/DX2 was the copy of the receipt by which the sale consideration was paid. He admitted that the Digitally CS No. 618509/2016 signed by PARVEEN No. 17 of 23 PARVEEN SINGH SINGH Date:
2024.12.09 16:31:07 +0530 consideration amount was paid by Dayal Dass Kalra and volunteered, (he) being his elder. He had reported to the Income Tax Department and Sales Tax Department about the purchase of the property by him during the period from purchase of property in 1979 till his dispute started with his uncle Dayal Dass Kalra. He could bring the said record. Defendant no. 1 inducted tenant after the year 1980 and was not his tenant. He admitted that he had never received rent from Sartaj Textile. He denied that Dayal Dass was being paid rent of the premises by tenant Sartaj Textile and volunteered, that the rent was being paid to Sh. Ashok Kumar Ajwani, who was his aunt's son. He had authorized Sh. Ashok Kumar to receive rent from the tenant. Neither any power of attorney nor any authority letter had been issued in favour of Sh. Ashok Kumar authorizing him to receive the rent and volunteered, that it was an oral authority given to him. Sh. Ashok Kumar was paying half rent to him and half to Sh. Dayal Dass Kalra. The rent of the premises was Rs.9,000/- per month. He was shown receipt of rent which was sometime Rs.4500/- or sometime less amount after deducting the expenditure made in the property. He denied that he had no right, title or interest in any portion of property no. B-221, Naraina Industrial Area, Phase-I, New Delhi or that Sh. Dayal Dass Kalra remained the sole and exclusive owner of the said property and after his death, it had been devolved upon his LRs.
46. Therefore, the case of the plaintiff is, that the suit property was originally leased out to M/s S.N Ahuja Metal Industries which was a proprietorship concern of Sh. S. N Ahuja and after his death, it devolved upon his LRs. Plaintiff claimed in the plaint that he became CS No. 618509/2016 Digitally signed by PARVEEN PARVEEN SINGH No. 18 of 23 SINGH Date:
2024.12.09 16:31:15 +0530 GPA holder of the LRs of S.N Ahuja by virtue of GPA Ex.PW4/1. The said GPA has been proved on record but the question is, does the said GPA in any manner reflect that it was a GPA which was executed for consideration or that it was worded in such a manner that it would have an effect of transfer of property.
47. Though I am aware of the fact that no transfer of immovable property worth more than Rs.100/- can take place without a registered sale deed, still if it is looked at, it will be seen that this GPA (Ex.PW4/1) is general in nature and it did not transfer any property.
48. On the contrary, plaintiff admits that the suit property was purchased by Dayal Dass Kalra. He admits that the tenants in the suit property were not his tenants but were the tenants of Dayal Dass Kalra though later he gave a contradictory statement. He further admits that the sale consideration amount was paid vide receipt Ex.PW1/DX2 which was in the name of Dayal Dass Kalra and that the sale consideration was paid by Dayal Dass Kalra.
49. Thus, I fail to understand whether he has any share in this property or not. Even otherwise, plaintiff does not anywhere state that whether it was a joint purchase by him with Dayal Dass Kalra or not. The fact that this property was purchased by Dayal Dass Kalra is established from the plaintiff's own stand when he states that suffice is the last document whereby title was given to him, which was Ex.PW1/4 i.e. the settlement deed. However, as earlier discussed, plaintiff has miserably failed to prove the said settlement deed and thus, by virtue of the said settlement deed, any rights in favour of Dayal Dass Kalra, which he admits existed prior to the said settlement deed, could not have CS No. 618509/2016 Digitally signed by PARVEEN No. 19 of 23 PARVEEN SINGH Date:
SINGH 2024.12.09 16:31:28 +0530 been transferred in favour of the plaintiff.
50. I accordingly find that if at all plaintiff has brought any evidence on record, is the evidence of ownership of defendant Dayal Dass Kalra. I say so because, plaintiff claims that he has derived the title from Dayal Dass Kalra and therefore, the plaintiff himself acknowledged and admitted Dayal Dass Kalra to be the previous owner.
51. That being the case, it was paramount for the plaintiff to prove that he has derived his title through a valid document from Dayal Dass Kalra. The said document is being Ex.PW1/4, which plaintiff has failed to prove. Thus, I find that though Dayal Dass Kalra had not led any evidence on this issue but the plaintiff from his own evidence had established that defendant no. 2 was the owner of the property and the ownership was never transferred by defendant no. 2 in favour of the plaintiff. Issue no. 2 is accordingly decided.
ISSUE NO. 33. Whether the plaintiff is entitled for a decree of possession, mesne profit and damages as claimed? OPP
52. As it has already been found that the claim of ownership of the plaintiff on the basis of settlement deed (Ex.PW1/4) has not been proved, plaintiff not being the owner of the property and admittedly not being the landlord of the property cannot seek any possession either from the original defendant or from subsequent purchaser i.e. defendant no. 3, to whom the possession had been handed over by the original defendant.
53. I say so because the rule of lis pendens would only Digitally signed by CS No. 618509/2016 PARVEEN SINGH PARVEEN SINGH Date:
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applicable if the plaintiff firstly established his own right of possession and then and only then any transfer of possession during the pendency of the suit would give right in favour of the plaintiff. At the most, plaintiff could have claimed any right on the basis of landlordship. However, plaintiff himself admitted, during his cross examination, that defendant no. 1 was not his tenant and he had never received any rent from Sartaj Textile though he denied that Dayal Dass Kalra was being paid rent of the premises by Sartaj Textile and volunteered, that the rent was being paid to Sh. Ashok Kumar Ajwani, who had been authorized by him to receive the rent from defendant no. 1. However, I fail to understand how could he authorize Sh. Ashok Kumar Ajwani to collect rent from defendant no. 1 if defendant no. 1 was not his tenant. If defendant no. 1 was not the tenant of the plaintiff, there could have been no occasion for the defendant no. 1 to concede to the directions of plaintiff to pay rent to Sh. Ashok Kumar. No rent receipt issued by Sh. Ashok Kumar had been produced on record. Even the said Ashok Kumar had not been produced as a witness to prove that he had ever collected any rent on behalf of plaintiff from Sartaj Textile. Therefore, not only the plaintiff has failed to prove his ownership but the plaintiff has also failed to prove that he was the landlord of the property or the defendant no. 1 was his tenant. Therefore, plaintiff is not entitled to any decree of possession, mesne profits and damages. This issue is accordingly decided against the plaintiff.
ISSUE NO. 44. Whether the defendants had any right to give possession of the suit premises to the plaintiff or defendant no. 3? OPD 1 & OPD3.
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54. The necessity to frame this issue arose because, on an application being moved by defendant no. 3 Navtej Singh under Order I Rule 10 CPC, Navtej Singh was impleaded as a defendant in this case. He as so impleaded on his claim that on 04.07.2005, through a registered agreement to sell and purchase and GPA, he had purchased the property from the plaintiff for a total consideration of Rs.8 lacs. The said application was allowed on no objection on behalf of the plaintiff. However, it was stated for plaintiff that his no objection should not be taken as admission of any facts stated in the application. Furthermore, during the pendency of the suit, on 23.07.2008, defendant no. 1 handed over the possession of the suit premises to the defendant no. 3. Hence, this issue came to be framed.
55. Plaintiff had admitted executing a registered agreement to sell and GPA in favour of defendant no. 3. However, according to him, defendant no. 3 had only paid part consideration and not the entire consideration and therefore, later on according to the claim of the defendant, he cancelled the agreement to sell and GPA.
56. Be that as it may, defendant no. 3 is only claiming his rights through the plaintiff, who during the trial of the case has already been found not to be the owner of the property and therefore, by virtue of any documents executed by the plaintiff, even it is taken that plaintiff had received the entire consideration amount - a fact which plaintiff has denied, defendant no. 3 would not get any title or right to enter into the possession of the property either through plaintiff or through defendant no. 1. Also, as per the case of the defendant no. 1, it was Dayal Dass Kalra, who was receiving rent from him and it was Dayal Dass Kalra CS No. 618509/2016 Digitally No. 22 of 23 PARVEEN signed by PARVEEN SINGH SINGH Date:
2024.12.09 16:31:58 +0530 who was his landlord. That being the case, defendant no. 1 had no right to hand over the possession directly to defendant no. 3 especially, pending adjudication of the matter where the right of ownership of the plaintiff was be to decided. I accordingly hold that defendant no. 1 had no right to hand over the possession of the premises in question to the defendant no. 3. This issue is accordingly decided against the defendants.
RELIEF
57. In view of my above findings, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2024.12.09 16:32:04 +0530 Announced in the open court (PARVEEN SINGH) on 09.12.2024. DJ-11, Central District, (This judgment contains 23 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No. 618509/2016 No. 23 of 23