Delhi District Court
Smt. Geeta Devi vs Sh. Dharam Vir Singh on 27 September, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Suit No. : 93584/16 & M60603/16
In the matter of:
Smt. Geeta Devi,
W/o Sh. Ramesh Chand,
R/o H51, Govind Puram,
Ghaziabad (U.P.). ....Plaintiff
Versus
1. Sh. Dharam Vir Singh,
S/o Sh. Bhim Singh
2. Sh. Satbir Singh,
S/o Late Sh. Ram Kishan,
Grandson of Late Sh. Hari Singh,
R/o 9/14, Jatwara Mohalla,
Bahadurgarh
3. Sh. Vijender Singh,
S/o Late Sh. Ram Kishan,
Grandson of Late Sh. Hari Singh
4. Sh. Umed Singh,
S/o Sh. Bhim Singh
5. Sh. Deepak Shokeen,
S/o Sh. Rajbir Singh
6. Sh. Sukhbir,
S/o Sh. Hazari
7. Sh. Mahender Singh,
S/o Sh. Hazari,
Suit No. 93584/16 1/24
8. Smt. Parmeshwari,
Widow of Late Sh. Daleep Singh
9. Sh. Sanjeev,
S/o Late Sh. Daleep Singh,
Grandson of Late Sh. Hari Singh
10.Sh. Billoo,
S/o Late Sh. Daleep Singh,
Grandson of Late Sh. Hari Singh
11.Sh. Sardar Singh,
S/o Late Sh. Hari Singh
12.Sh. Ranbir Singh,
S/o Late Sh. Hari Singh
13.Smt. Risalo,
Widow of Late Sh. Mahavir Singh
14.Sh. Ashok Kumar,
S/o Late Sh. Mahavir Singh
15.Sh. Ashish Kumar,
S/o Late Sh. Mahavir Singh
Defendants no.3 to 15:
R/o Village Dichaon Kalan,
Tehsil Najafgarh, Delhi. .....Defendants
Date of Institution : 25.02.2008
Date of order when reserved : 25.09.2019
Date of order when announced : 27.09.2019
Suit No. 93584/16 1/24
JUDGMENT
1. Vide this judgment, the undersigned shall decide the present suit filed by the plaintiff against the defendants for specific performance of an Agreement to Sell dated 22.11.1988 and to execute and get the sale deed registered in respect of land measuring 700 sq. yds. bearing Plot No. 4, 5 and 6, out of Khasra No. 146/13, 18, Village Dichaon Kalan, Tehsil Najafgarh, Delhi (hereinafter referred to as "suit property") as per Jamabandi for the years 198485 with the consequential relief of injunction thereby restraining the defendants from alienating the suit land to any other person on the basis of mutation in the revenue record. Further, the plaintiff also seeks that if the defendants happen to take forcible possession from the plaintiff in that event the defendants be also directed to deliver the possession of the suit land to the plaintiff. Vide this judgment, the undersigned shall also decide an application Under Order 39 Rule 2A CPC filed by the plaintiff which was separately registered as M60603/16.
2. The case of the plaintiff as per plaint is that the plaintiff entered into an agreement for sale with the defendants no.1 and 2, the latter acting for self and as General Attorney of Sh. (i) Rajbir Singh,
(ii) Hazari, (iii) Hari Singh and (iv) Mahavir Singh (vide GPA No. 1901, registered on 20.09.1988 in the Office of SubRegistrar, Bahadurgarh.) It is stated that the said agreement for sale between the Suit No. 93584/16 1/24 abovementioned parties was in respect of suit land. It is stated that the said agreement of sale was executed at Delhi on 22.11.1988 for a total sale consideration of Rs. 48,000/ only. It is stated that whole of the sale consideration was received by the defendants no.1 and 2 for self and as General Attorney of the remaining owners at the time of execution of the said agreement and in token of the same, the latter also executed a receipt on the same day. It is stated that no time was fixed for execution and registration of the sale deed and the defendants no.1 and 2 had also executed a General Power Attorney in favour of the plaintiff dated 22.11.1988 alongwith an Affidavit to this effect. It is stated that it is in respect of the said agreement for sale that the plaintiff served a legal notice dated 02.02.2008 through his counsel calling upon the defendants to execute the sale deed and get it registered before the SubRegistrar, Kapashera, Delhi to which the defendants refused and hence, the present suit for specific performance has been filed.
3. Summons of the suit were issued against the defendants. The defendants appeared and contested the suit by filing written statements. The defendants no.1 and 2 have filed a common written statement and the defendants no.3 to 15 have filed a common written.
4. In the written statements filed by the defendants no.1 and 2, it has been contended that the present suit has been filed after two Suit No. 93584/16 1/24 decades of arising of cause of action, hence the same is not maintainable. It is contended that as per Section 53A of Transfer of Property Act the suit simplicitor to protect the possession on the basis of principles laid down under Section 53A of Transfer of Property Act is not tenable. It is contended that there is no agreement between the plaintiff and the defendants in connection with the suit property. It is contended that the plaintiff failed in performing her part within the meaning of Section 53A of Transfer of Property Act, therefore the plaintiff's claim is not maintainable. It is contended that the alleged Agreement to Sell is unregistered. It is contended that the plaintiff cannot claim possession until the documents have been registered before the concerned authority. It is contended that the alleged unregistered Agreement to Sell has been contracted to sell the property, hence the same is required to be registered. It is contended that no time period has been mentioned in the agreement to execute the alleged contract which should have been mentioned in the same. It is contended that the present suit has been filed beyond limitation. It is contended that the plaintiff has not came up before the Court with clean hands. It is contended that the improper Court Fees has been paid and advalorem Court Fees has not been paid. In reply on merits, it is contended by the defendants that the contents of para no.1 of the plaint are matter of record. It is contended that the contents of para no.2 of the plaint are admitted except legality of mutation and title. It is contended that the defendants are the owners of the property in Suit No. 93584/16 1/24 question. The contents of para no.3 are denied by the defendants for want of knowledge as the plaintiff raised the allegations after 20 years. It is contended that the plaintiff has not filed any documents in support of averments in respect of GPA No. 1901. It is contended that the plaintiff has not recalled the real facts, thus the averments made by her are unsustainable. It is contended that the plaintiff has wrongly claimed that no time fixed for execution and registration of the sale deed, while infact it has been clearly mentioned in the Clause 6 of the alleged Agreement to Sell and Purchase that the first party shall apply and get the permission for the sale of the said property from the appropriate authority as well as from the Office of the competent authority, if required and on receipt of the said sale permission the first party shall execute the relevant documents within one month from the date of receipt of the said permission. It is contended that the stamp duty was required to be paid by the second party. It is contended that the plaintiff did not comply the Clause 6 of Agreement to Sell and Purchase. It is contended that as per the documents, it is revealed that the time was fixed for one month to execution the sale deed. It is contended that the defendants never executed any Agreement to Sell and Purchase with the plaintiff as alleged. It is contended that the defendants have never taken any consideration from the plaintiff. It is contended that the suit is bad on account of misjoinder of the defendants no.3 to 15.
Suit No. 93584/16 1/245. Two separate replications, one to the written statement of the defendants no.1 and 2 and another to the written statement of the defendants no.3 to 15 were filed by the plaintiff. The plaintiff has denied the allegations of the defendants and has reiterated the same facts as averred in the plaint.
6. It is to be noted that the objection as to the limitation has already been decided by the Court vide its order dated 16.04.2012 in favour of the plaintiff while disposing of the application Under Order 7 Rule 11 CPC.
7. It is further to be noted that initially, vide order dated 05.03.2008 the defendants were directed to maintain the status quo in respect of the title of the property and were restrained to make further transfer till further orders. Thereafter, an application Under Order 39 Rule 2A CPC filed on behalf of the plaintiff claiming that the defendants have dispossessed the plaintiff from the suit property, which is pending adjudication. Thereafter, an application Under Order 39 Rules 1 & 2 CPC moved on behalf of the plaintiff which was allowed vide order dated 14.09.2012 to the limited extent that the defendants are restrained from creating any third party interest in the suit property by way of transfer of title in any way, till the disposal of the suit.
Suit No. 93584/16 1/248. Vide order dated 05.08.2013, on the basis of pleadings of the parties the following issues were framed :
i) Whether the plaintiff is entitled to a decree for the specific performance of the Agreement to Sell dated 22.11.1988 and to get the sale deed registered in respect of suit property? OPP.
ii) Whether the plaintiff is entitled to a decree of consequential relief of injunction restraining the defendants from the suit land to any other person or third party on the basis of mutation in the revenue record? OPP.
iii) Relief.
9. In order to substantiate her case, the plaintiff examined herself as PW1.
10. In rebuttal, the defendants examined the defendants no.1 and 2 as DW1 and DW2, respectively.
11. PW1/ plaintiff Smt. Geeta Devi deposed almost on the same lines as averred in the plaint and has proved on record certified copy of Khatoni of the suit land for the year 198485 which is being a public document is exhibited as Ex. PW1/1; Agreement to Sell and General Power of Attorney dated 22.09.1988 executed by the Suit No. 93584/16 1/24 defendants no.1 and 2 in her favour are exhibited as Ex. PW1/2 and Ex. PW1/3, respectively; original receipt dated 22.11.1988 issued by the defendants no.1 and 2 acknowledging the payment of Rs. 48,000/ from the plaintiff towards the total consideration amount of the suit property is exhibited as Ex. PW1/5; Affidavit of the defendants no.1 and 2 dated 22.11.1988 representing that they are the exclusive owner of the suit property and acknowledging entering into Agreement to Sell dated 22.11.1988 with her and also that the defendants no.1 and 2 have delivered the vacant possession of the suit property to her is exhibited as Ex. PW1/6; legal notice dated 02.02.2008 is exhibited as Ex. PW1/7; original postal receipts no. 99039917 dated 02.02.2008 are exhibited as Ex. PW1/8/AQ; certificate of posting is exhibited as Ex. PW1/9; reply to legal notice dated 08.02.2008 sent by the defendants no.3 to 15 is exhibited as Ex. PW1/10 and reply to legal notice dated 08.02.2008 sent by the defendants no.1 and 2 is exhibited as Ex. PW1/11. It is to be noted that there is no Ex. PW1/4 mentioned in her affidavit. In her crossexamination, it is stated by her that she is aged about 60 years. It is stated that she purchased the property in question when she was around 28 years old. It is stated that she is a house wife and was not doing any work at the time of purchasing the suit property. It is accepted by her that she was residing at Naryana at that time. It is stated that the consideration amount of Rs. 48,000/ was given to her by her husband. It is stated Suit No. 93584/16 1/24 that she came to know that the suit property is available for sale through a property dealer namely Sh. Rameshwar @ Rama Dealer. It is stated that she has not made any complaint to Sh. Rama regarding the fact that she has not got the possession of the suit property. It is voluntarily stated that at the time of filing of the suit, she was having possession of the suit property. It is stated that she has apprised Sh. Rama that the sale deed has not been registered in her name. It is stated that she asked Sh. Rama about the sale deed before filing of the suit. It is stated that Sh. Rama said that she should hand over the property papers to him and take the money back. It is stated that she refused to give the papers to Sh. Rama. It is stated that she received a call from Sh. Rama and therefore, she met him at his house. He told her (this witness) that she can take her purchase amount of Rs. 3,50,000/ back from him. It is stated that she apprised him that she should receive Rs. 10,00,000/ back as Government rate was Rs. 1,500 per sq. yd. It is stated that she bought the suit property for an amount of Rs. 3,25,000/. A question was put to this witness that in Agreement to Sell, Ex. PW1/2 consideration amount has been written as Rs. 48,000/, while now she has claimed that she bought the property for an amount of Rs. 3,25,000/ to which it is stated by her that both the statements are correct as she had given a cheque of Rs. 48,000/ and rest was paid in cash. This witness could not tell in whose name cheque was issued. It is stated that her husband had given the cheque. She could not tell to whom the cheque was handed Suit No. 93584/16 1/24 over. This witness could not tell who made cuttings at PointX in Ex. PW1/2. It is stated by her that she had gone to see the suit property before purchasing the same. It is stated that there is only one plot measuring 700 sq. yds. which is the suit property. It is denied by her that the same is only an agricultural land. She could not remember as to what is situated on the east or west side of the suit property. It is stated that there is a main road connecting to the agricultural land which leads to the suit property. It is stated that she has not placed on record any site plan. This witness could not identify the signatures at PointY on Ex. PW1/2. It is stated that when she had gone to the suit property alongwith her brother and soninlaw, the boundary wall around the suit property had already been demolished. It is stated that she constructed the boundary wall 67 months after purchasing of the suit property. It is stated that she used to visit the suit property at an interval of every 34 months. It is stated that there is 8 ft. gali in back side of the suit property and in front of the suit property there is about 20 ft. space for road. It is stated that she had planted around 25 poplar plants in the suit property. It is denied by her that she has not constructed the boundary wall in the suit property as it is not permissible by Government to construct any activity over the agricultural land. It is stated that Sh. Rama had delivered the possession over the suit property. It is stated that there are three persons present when possession of the suit property was delivered to her. A question was put to this witness that in her application filed Suit No. 93584/16 1/24 Under Order 39 Rule 2A CPC she has mentioned about the boundary wall which was demolished by the defendants, however in her plaint she has not mentioned the factum of existence of a boundary wall to which she stated that there was a boundary wall existing, but it is possible that the same might have not been mentioned in the plaint. It is stated by her that she came ot know about demolition of the wall when she used to visit the plot at an interval of 34 months and found that the wall has been demolished and the trees have been cut and there was some cultivation being undertaken. It is stated that after the year, 2008 the boundary wall was demolished. It is stated that she had gone to the suit property with her soninlaw when she came to know that the boundary wall was demolished. It is stated that she could not file any complaint regarding the demolition of the boundary wall to any authority, nor she called the police official at 100 number. It is stated by her that she came to know from the property dealer namely Sh. Rana that the boundary wall was demolished by the defendants. She could not tell the address of the property dealer, Sh. Rana. It is stated that she met Sh. Rana at his office which is 11.5 km from the boundary wall. She could not tell the name of the locality where office of Sh. Rana is located. It is denied by her that the suit and the application filed Under Order 39 Rule 2A CPC are false. It is accepted by her that she has not mentioned the name of Sh. Rana in the application filed Under Order 39 Rule 2A CPC. It is denied by her that even as on date, as per revenue record i.e. Khasra Girdawari there Suit No. 93584/16 1/24 is cultivation on the suit land and it is agricultural land.
12. No other plaintiff's witness was examined and plaintiff's evidence was closed.
13. DW1/ defendant no.1 Sh. Dharam Vir Singh deposed almost on the same lines as averred in the written statement. It is further stated that he is having no connection with the plaintiff. It is stated that the plaintiff is a stranger to him. It is stated that he is having no knowledge about the plaintiff and her whereabouts. It is stated that the alleged story of the plaintiff regarding execution of Agreement to Sell is false as the plaintiff is unknown to this witness. It is stated that the plaintiff has not brought any evidence of alleged notary public who has attested the Agreement to Sell. It is stated that even shown signatures of this witness is forged and fabricated, hence the suit is liable to be dismissed. In his crossexamination, it is stated by him that he is commerce graduate from Delhi University and understand English language to some extent. A question was put to him that the entire contents of para no.3, except the first sentence i.e. PointC to PointD; entire contents of second para no.3 i.e. PointE to PointF; entire contents of para no.4 i.e. PointG to PointH; para no.5 i.e. PointI and PointJ; part of para no.6 i.e. PointK to PointL; Point M to PointN in para no.7; PointO to PointP in para no.8; PointQ to PointR in para no.9 and PointS to PointT in para no.10 in his Suit No. 93584/16 1/24 affidavit dated 21.07.2017 have not been stated in the written statement and are beyond pleadings to which he has stated that he could not show such submissions in his written statement. It is denied by him that he has not stated in his written statement that the agreement dated 22.11.1988 is forged and fabricated. It is denied by him that he has not stated in his written statement that the plaintiff is unknown to him. It is stated by him that he did not sell the property to the plaintiff, hence there was no question of removing her from the property.
14. DW2/ defendant no.2 Sh. Satbir Singh deposed on the same lines as averred by DW1/ defendant no.1.
15. No other defendants' witness was examined and defendants' evidence was closed.
16. The Court has heard both the parties and has perused the record.
17. The issue wise findings are as follows: ISSUES NO. 1 AND 2: Whether the plaintiff is entitled to a decree for the Suit No. 93584/16 1/24 specific performance of the Agreement to Sell dated 22.11.1988 and to get the sale deed registered in respect of suit property? OPP.
Whether the plaintiff is entitled to a decree of consequential relief of injunction restraining the defendants from the suit land to any other person or third party on the basis of mutation in the revenue record? OPP.
18. Vide order dated 16.04.2012 an application Under Order 7 Rule 11 CPC has been decided by Ld. Predecessor of this Court whereby it was held that the present suit has been filed within limitation as there was no time limit provided for specific performance of the Agreement to Sell i.e. execution of sale deed. The said order has not been challenged or set aside in appeal or revision, hence the same attained finality. Thus, it is hereby reiterated that suit has been filed within limitation. It is also to be noted that as per Clause06 of Agreement to Sell, Ex. PW1/2 it was the responsibility of the defendants no.1 and 2 being first party to get the permission for sale from appropriate/ competent authority and only after that sale deed was to be executed. It has nowhere been shown that the defendants had taken any such permission from any appropriate/ competent authority to sell the property. Thus, the nonexecution of sale deed for 20 years can only be attributed to the defendants no.1 and 2. As per Article54 of the schedule attached to Limitation Act a suit for specific Suit No. 93584/16 1/24 performance of a contract can be filed within three years from the date when the plaintiff has noticed that performance is refused. In the present matter, the plaintiff has sent the legal notice on 02.02.2008 calling upon the defendants to execute sale deed in her favour and it was only vide reply dated 08.02.2008 the same was refused. The present suit was filed on 25.02.2008, hence the same was filed within limitation.
19. As per original Section 17 of Registration Act, 1908, the Agreement to Sell was not required to be compulsorily registered. It was only in the year 2001 when Clause 1A was inserted in Section 17, only than registration of Agreement to Sell become compulsorily only to the extent that otherwise the same shall have no effect for the purpose of Section 53A of Transfer of Property Act. Section 53A provides that a person in possession of property on the basis of an Agreement to Sell can protect his possession, however after insertion of Clause 1A in Section 17 of Registration Act the said possession can only be protected, if the Agreement to Sell is registered. However, there was no disqualification attached in seeking specific performance of the unregistered Agreement to Sell. Thus, after 2001 on the basis of an unregistered Agreement to Sell though specific performance can be sought, but benefit U/s 53A of Transfer of Property Act cannot be availed. However, an unregistered Agreement to Sell executed prior to 2001 can very well be used for the benefit Suit No. 93584/16 1/24 U/s 53A of Transfer of Property Act, further its specific performance can also be sought. In the case in hand, the Agreement to Sell was executed on 22.11.1988, thus the specific performance of the same can be sought as per law and the benefit U/s 53A of Transfer of Property Act can also be availed on the basis of the same.
20. The most important factual issue to be decided in the present matter is whether Agreement to Sale and Purchase, General Power of Attorney, Affidavit and Receipt exhibited as Ex. PW1/2 to Ex. PW1/5, respectively were executed by the defendants no.1 and 2 on their behalf as well as on behalf of Sh. Hari Singh, Sh. Mahavir Singh, Sh. Hazari, Sh. Umed Singh, Sh. Rajbir and Sh. Dharamvir Singh (i.e. predecessorininterest of the defendants no.3 to 15) as their attorneys. The following facts emerged from material on record shows that preponderance of probability is in favour of the fact that such documents were so executed by the defendants no.1 and 2 :
(a) There is no specific denial that GPA No. 1901 registered on 20.09.1988 was executed by Sh. Hari Singh, Sh. Mahavir Singh, Sh. Hazari, Sh. Umed Singh, Sh. Rajbir and Sh. Dharamvir Singh (i.e. predecessorininterest of the defendants no.3 to 15) in favour of the defendants no.1 and 2. It is only stated that no document qua that GPA has been filed on record.
Suit No. 93584/16 1/24(b) The execution of documents, Ex. PW1/2 to Ex. PW1/5 has also not been specifically denied by the defendants no.1 and 2, it is only stated that due to lapse of 20 years the defendants does not know about the same. It has been held by Hon'ble Supreme Court in case titled as Muddasani Venkata Narsaiah (Dead) through legal representatives Vs. Muddasani Sarojana, (2016) 12 SCC 288 that mode of denial of a fact in written statement has to be specific and denial for want of knowledge is no denial at all and has not even the effect of putting the fact in issue.
(c) It is not disputed that the defendants no.1 and 2 as well as predecessorininterest of the defendants no.3 to 15 were owners qua property in question.
(d) From perusal of the entire written statement it can be gathered that the defendants no.1 and 2 though raised objections qua limitation, legal position of Section 53A of Transfer of Property Act, nonperformance of her part by the plaintiff, non registration of the Agreement to Sell, however nowhere in the entire written statement it has been categorically stated that none of the defendants no.1 and 2 have signed the Agreement to Sell and other documents, Ex. PW1/2 to Ex. PW1/5 i.e. they did not specifically deny their signatures on the said documents. The denial on the ground that matter is 20 years old, only shows that they did not specifically denied the execution of Suit No. 93584/16 1/24 Agreement to Sell and receipt of consideration amount. The half heartedly defence of the defendants is no defence in the eyes of law.
(e) It is only in para no.7 in reply on merits it was baldly stated that they did not execute any Agreement to Sale and Purchase with the plaintiff and not taken any consideration from the plaintiff. However, nowhere in the entire written statement, it has been specifically contended by the defendants that Agreement to Sell is not bearing their signatures or the same is forged and fabricated.
(f) It was for the first time on 12.07.2013 when admission/ denial of documents had taken place then the defendants no.1 and 2 denied the execution of the same as well as their signatures on the said documents, prior to that in the entire written statement this defence was never taken. Thus, the defendants were taking shifting stands.
(g) In her evidentiary affidavit as PW1, the plaintiff has categorically stated that the Agreement to Sell and other documents, Ex. PW1/2 to Ex. PW1/5 were executed by the defendants no.1 and 2 on their behalf as well as on behalf of others, however no question whatsoever qua execution or nonexecution of the said documents has been put to her during her crossexamination, not even a suggestion put to her that the documents were not bearing signatures of the defendants no.1 and 2. Thus, the testimony of the plaintiff on this Suit No. 93584/16 1/24 aspect remains unrebutted and uncontroverted.
(h) The shifting stands of the defendants no.1 and 2 can also be observed from the fact that nowhere in the written statement the defendants contended that the plaintiff is a complete stranger to them, however in their affidavits they harped upon the fact that the plaintiff is a complete stranger to the defendants, while infact in the cross examination of the plaintiff the defence counsel himself gave a suggestion to the plaintiff that whether she used to reside at Naraina, which shows that the plaintiff was known to them and they were aware about her residence.
(i) In her plaint as well as in Agreement to Sell the consideration amount for sale of the property in question is stated to be Rs. 48,000/, however in her crossexamination the plaintiff has stated that total consideration amount was Rs. 3,25,000/, out of which Rs. 48,000/ was paid by way of cheque and remaining amount was paid in cash. It is also to be noted that the plaintiff could not tell the number of the cheque from which account it was issued and in which account it was encashed. On these facts, it is contended by Ld. Counsel for defendants that the plaintiff is telling a lie, she failed to proved that the alleged payment was made. It is to be noted that generally people only show part consideration amount in documents to avoid payment of exact stamp duty, while infact they paid full Suit No. 93584/16 1/24 consideration amount, and a considerable part of the same is paid in cash. It is to be noted that no defence/ objection qua pecuniary jurisdiction of this Court has been raised by the defendants that is why no issue qua same has been framed.
21. The evasive denial qua execution of Agreement to Sell, General Power of Attorney, Affidavit and Receipt coupled with the fact that testimony of the plaintiff qua same remain unrebutted coupled with the shifting stands of the defendants shows that preponderance of probability lies in favour of the plaintiff and it can be safely held that the defendants no.1 and 2 had executed the Agreement to Sell, Affidavit and Receipt in favour of the plaintiff qua property in question.
22. In these circumstances, the defendants are liable to get the sale deed executed and registered in favour of the plaintiff.
23. Since the Agreement to Sell, Affidavit and Receipt have already been executed in favour of the plaintiff and she has already paid entire consideration amount and is also ready to pay the stamp fees qua property in question, hence the defendants have no right to create any third party interest in the property, thus they are restrained from alienating the suit land to any other person, or creating any third party interest on the basis of mutation in the revenue record.
Suit No. 93584/16 1/2424. With these observations, the abovesaid issues are decided in favour of the plaintiff and against the defendants.
25. In the present matter, an application Under Order 39 Rule 2A CPC was filed by the plaintiff which was separately registered vide bearing no. M60603/16 wherein it has been claimed that after passing of order dated 05.03.2008 the defendants illegally dispossessed the plaintiff by demolishing the boundary wall of the property in question, hence liable to civil imprisonment as well as attachment Under Order 39 Rule 2A CPC. It is to be noted that vide order dated 05.03.2008 there was only direction for maintaining status quo qua title of property and there was no order for maintaining status quo qua possession of property, thus there was no disobedience of any order of Court even if it is assumed that the defendants have illegally dispossessed the plaintiff. Thus, the application Under Order 39 Rule 2A CPC is hereby dismissed. Copy of this order be also placed in the miscellaneous application bearing M60603/16 of application Under Order 39 Rule 2A CPC.
26. At this stage, it is hereby made clear that possession of an open land has to be ascertained on the basis of title documents and not on the basis of physical possession. Admittedly, the suit property is an open land, hence its possession has to be determined by looking into Suit No. 93584/16 1/24 the title documents. As per Agreement to Sell, Affidavit and Receipt possession of land measuring 700 sq. yds. bearing Plot No. 4, 5 and 6, out of Khasra No. 146/13, 18, Village Dichaon Kalan, Tehsil Najafgarh, Delhi was handed over to the plaintiff and entire consideration amount has been paid, thus in law possession of land in question be held with the plaintiff. It is to be noted that though in the prayer clause of the plaint the plaintiff sought a hypothetical relief that if in future she may be dispossessed by the defendants her possession has to be restored. Since there was no cause of action for grant of relief of possession at the time of filing the plaint, thus the said relief has no value in the eyes of law. Later on, when application Under Order 39 Rule 2A CPC was filed and it was claimed that the defendants no.1 and 2 have forcible taken possession of the property in question, no amendment in the plaint was sought by the plaintiff to incorporate the said subsequent event of dispossession and relief of possession, thus when the cause of action for seeking relief of possession was arose, no amendment had taken place, thus in the present matter no order can be passed qua handing over physical possession by the defendants to the plaintiff.
ISSUE NO. 3: Relief.
27. In view of the findings recorded on the abovesaid issues, a Suit No. 93584/16 1/24 decree for specific performance of an Agreement to Sell dated 22.11.1988 and to execute and get the sale deed registered in respect of land measuring 700 sq. yds. bearing Plot No. 4, 5 and 6, out of Khasra No. 146/13, 18, Village Dichaon Kalan, Tehsil Najafgarh, Delhi (hereinafter referred to as "suit property") as per Jamabandi for the years 198485 be passed in favour of the plaintiff and against the defendants. Further, the defendants are restrained from alienating the suit land to any other person, or creating any third party interest on the basis of mutation in the revenue record.
Thus, the suit of the plaintiff is decreed. Costs are also awarded in favour of the plaintiff. Decreesheet be drawn accordingly.
File be consigned to Record Room.
Digitally signed GAJENDER by GAJENDER
SINGH SINGH NAGAR
Date: 2019.09.28
NAGAR 15:43:06 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 27.09.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/27.09.2019
(This judgment contains 24 pages in total)
Suit No. 93584/16 1/24
CS93584/16 & M60603/16
27.09.2019
Present : None.
Vide separate judgment of even date, a decree for specific performance of an Agreement to Sell dated 22.11.1988 and to execute and get the sale deed registered in respect of land measuring 700 sq. yds. bearing Plot No. 4, 5 and 6, out of Khasra No. 146/13, 18, Village Dichaon Kalan, Tehsil Najafgarh, Delhi (hereinafter referred to as "suit property") as per Jamabandi for the years 198485 be passed in favour of the plaintiff and against the defendants. The defendants are also directed to restore the possession to the plaintiff. Further, the defendants are restrained from alienating the suit land to any other person, or creating any third party interest on the basis of mutation in the revenue record.
Thus, the suit of the plaintiff is decreed. Costs are also awarded in favour of the plaintiff. Decreesheet be drawn accordingly.
The application Under Order 39 Rule 2A CPC filed by the plaintiff which was separately registered vide bearing no. M60603/16 is hereby dismissed. Copy of this order be also placed in the said miscellaneous file.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/27.09.2019 Suit No. 93584/16 1/24