Delhi District Court
Sh. Virender Singh vs M/S P.S.S. Agro & Investment Pvt. Ltd on 10 November, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS No. 15516/16 (Old No. 496/2017)
In re :-
1. Sh. Virender Singh
S/o Late Sh. Roshan Lal
2. Smt. Santra Devi
Wd/o Late Sh. Roshan Lal
3. Sh. Dalip
S/o Sh. Fateh Singh
Through his attorney
Sh. Virender Singh
S/o Late Sh. Roshan Lal
4. Sh. Dhani Ram
S/o Sh. Dalip
Through his attorney
Sh. Virender Singh
S/o Late Sh. Roshan Lal
All R/o Village & P.O. Rajokari,
New Delhi
........ Plaintiffs
Versus
1. M/s P.S.S. Agro & Investment Pvt. Ltd.
Through its Managing Director
Office at: SCO 49-50,
Sector-26, Madhya Marg,
Chandigarh
New Registered Office at:
H.No. 1605, Gali No. 53/2,
Molar Band Extension,
Badarpur, New Delhi
Also at:
E-14/17, Vasant Vihar,
New Delhi-57
CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 1 of 11
2. Sh. Vikas Bajaj
S/o Sh. P.L. Bajaj
Director of the defendant no. 1
R/o E-14/17, Vasant Vihar,
New Delhi-57
3. Papita Devi
W/o Sh. Surender Singh
4. Master Vishal
5. Master Mahender
Both S/o Late Sh. Surender Singh
Through their mother being natural guardian
Defendants no. 3 to 5 R/o Village & P.O. Rajokari
New Delhi.
.......... Defendants
Date of institution of present suit : 15.03.2008
Date of receiving in this court : 09.05.2016
Date of hearing arguments : 11.09.2017
Date of Judgment : 10.11.2017
Suit for Cancellation, Declaration and Permanent Injunction
JUDGMENT
This judgment shall dispose of suit filed by plaintiff against defendants seeking decree of cancellation, declaration and permanent injunction in respect of sale deed dated 17.03.2005 executed by plaintiffs and defendant No. 3 in favour of defendant No.1 before the Sub-Registrar IX vide registration No. 4025 in book No. 1, volume No. 1920 on pages 57- 63 in respect of land measuring 1 Bigha 10 Biswas and 15 biswasani out of total land bearing khasra No. 443/2 min, 434 and 231 situated within the revenue state of village Rajokri New Delhi.
Plaintiffs' case
1. Plaintiffs are recorded co-bhumidhar in possession of the land bearing Khasra No. 252 min (3-6), 253 (4-16), 254/1(1-12), 259/2(4-5), 260(4- CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 2 of 11
16), 261/1(2-8), 433/2(2-8), 434(4-16) and 507/1 min(1-8) situated within the revenue estate of village Rajokri. The plaintiffs No. 1, 2, 3 and 4 have 18.5/595 th, 20/595th, 20/595th and 20/595th undivided share respectively duly recorded in the revenue record. Plaintiff No. 1 is attorney of plaintiffs No. 3 and 4 and all the plaintiffs are in the actual physical and cultivatory possession of the above said land up to the extent of their recorded share. Defendants No. 3 to 5 are co- bhumidars of the plaintiffs in respect of afore said land and they have been impleaded as proforma defendants.
2. Defendant No. 1 is a limited company having a defendant No.2 as a manager and one of its director. The defendant No. 1 owns a farm house/land (shown in blue colour in the site plan) situated adjacent to the land of the plaintiffs.
3. Farmhouse of defendant No.1 is five corners as shown in the site plan. Defendant No. 2 approached the plaintiff No. 1 along with a local person named Shri Tara Chand in the first week of December 2004 and offered for exchange of a part of their land with that of the plaintiffs, so that the farm house of the defendant would become symmetrical i.e. four cornered and plaintiffs' land would be connected to the Rasta / Road as shown in the site plan. The plaintiffs land shown in red colour was to be exchanged with the land of the defendant No. 1 as shown in green colour in the site plan. Initially defendant No. 1 did not agree to pay consideration for the excess of land to the plaintiffs, however, subsequently defendant No. 1 agreed to pay consideration for the excess land of the plaintiff and it was agreed that the defendant would pay a sum of Rs. 6 lacs to the plaintiffs No. 1 and 2 each while plaintiff No. 3 and 4 would be paid jointly a sum of Rs. 3 lakh through plaintiff No. 1 being attorney, according to the respective share of the plaintiffs.
4. Plaintiff No. 1 convinced the other plaintiffs and defendant No. 3 regarding the aforesaid exchange of land as the same was in the joint welfare of CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 3 of 11 the family because the exchange would provide direct access to the main road. All the plaintiffs and defendant No. 3 agreed to exchange their part of land with that of the defendant No.1 as mentioned above as such they accepted the offer of the defendant No. 2.
5. Plaintiffs filed some paper format which were said to be required for execution of exchange deed and on 17.03.2005 plaintiff No. 1 went to the office of Sub-Registrar for execution of the exchange deed. When plaintiff No. 1 started signing the documents he noticed that the documents were having titled as sale deed upon which document writer as well as defendant No. 2 told that the deed of exchange of land could not be registered as there was no provision for execution of exchange deed as such if they had opted to execute a sale deed in respect of the land of their share in favour of plaintiff and plaintiffs would execute sale deed in respect of the land of their share in favour of the defendant. It was told by them that since NOC could be obtained in respect of the land of the plaintiffs' share, as such, sale deed by the plaintiffs could be executed and defendant No. 2 promised to execute the sale deed in respect of their share after obtaining the NOC. Plaintiffs in good faith agreed to sign/thumb impressed the sale deed with a hope that the sale deed in their favour would be executed by the defendant No. 1 and 2 in near future after obtaining NOC.
6. Defendant No. 1 and 2 have cheated and played fraud with the plaintiffs as defendants have not come forward to execute the sale deed in their favour and since the plaintiffs have signed/ thumbed marked the documents under impression that the defendants would also execute the sale deed in their favour after obtaining NOC but same was not executed by the defendants, as such, the sale deed is null void and sham having no legal force. Apart from this the impugned sale deed is also in violation of Section 33 and Section 45 of Delhi Land Reforms Act.
7. Plaintiff No. 1 made several request to the defendant to execute the CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 4 of 11 sale deed in respect of their land as agreed but defendant No. 2 with ulterior motive kept the execution of the sale deed delayed under one pretext and other. Subsequently plaintiff No.1 came to know that the defendants No. 1 and 2 tried to take forcible physical possession by breaking the wall between the lands of the parties on 22.04.2005 but could not succeed due to the resistance from the defendant No. 3 and 5.
8. Defendant No. 3 and 5 subsequently filed a suit for cancellation, declaration and permanent injunction against the defendants No. 1 and 2 including the plaintiff herein in which defendant No. 1 and 2 filed written statement which showed the intention of the defendants to grab the land of the plaintiffs as well as of defendant No. 3 to 5. In fact, the defendant No. 2 has acted in a very planned manner to grab the land of the plaintiffs because the plaintiffs were not ready to sell their land to the defendants for a long time. Defendant No. 2 intentionally and deliberately offered for the exchange of land and to pay consideration for excess land to the plaintiffs thereafter he cooked up the story that NOC in respect of his land was not received, as such, the sale deed, in respect of land of the plaintiffs was executed while he promised to execute the sale deed in respect of his land after obtaining the NOC which he failed. Hence, suit for declaration, cancellation and permanent injunction.
Case of defendant No. 1 and 29. Defendants No. 1 and 2 filed written statement raising preliminary objection to the effect that contents of the plaint are absolutely misconceived, false and baseless; that this court has no jurisdiction to try entertain and/ or adjudicate upon the disputes between the parties as the plaintiff himself has alleged that present suit is hit by the provisions of Delhi Land Reforms Act, 1954; that suit is not maintainable being hit by the doctrine of estoppel; that suit have not been valued properly; that suit is barred by law of limitation as the plaint clearly disclose the fact that plaintiff themselves executed the registered sale deed in favour of answering defendants with their own free will and consent CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 5 of 11 on 9.03.2005; that the dispute between the parties are already subject matter of another suit and therefore same is not maintainable; that plaintiffs accompanied by witnesses were duly present in the office of the Sub-Registrar-IX and put their signature/finger impressions on the sale deed and therefore, not entitled to seek the relieves as prayed for.
10 On merits it was denied that plaintiffs are recorded bhumidhar and in possession of the suit land. Once the sale deed was executed on 9.03.2005 and registered on 17.03.2005 the plaintiffs and other co-bhumidar have transferred their rights title or interest in the said land in favour of defendant No. 1 against consideration amount. The farmhouse of defendant No. 1 is situated adjacent to the land of the plaintiffs and defendant No. 3 to 5. It was denied that any land was agreed to be exchanged between the parties. On the representation and assurances of the plaintiffs and after negotiation in the plaintiffs and defendant No. 3 had agreed to sell the land under reference to defendant No. 1 for a total consideration of Rs. 12 lacs out of which plaintiffs' share of Rs 9 lacs was duly paid to the plaintiffs. After receiving their share of the entire sale consideration, the plaintiffs along with defendant No. 3 duly executed the sale deed in favour of the defendant No. 1. It was an outright right sell by plaintiffs and defendant No.3 in favour of defendant No.1. Rest all allegations of the plaint was specifically denied by the defendant No. 1 and 2.
Case of defendant No. 3 to 511. No written statement was filed on behalf of different No. 3 to 5.
Replication
12. Plaintiffs filed replication thereby denying the contents of the written statement and retreating the averment made in the plaint.
Issues
13. From the pleadings of parties following issues were framed on CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 6 of 11 6.05.2014:-
1. Whether the plaintiff is entitled for decree of declaration / cancellation of documents and other reliefs as mentioned in prayer class (a) & (b) of the plaint? OPP
2. Whether the plaintiff is entitled for a decree of injunction as prayed in prayer Clause (c) of the plaint? OPP
3. Whether the court has no jurisdiction in view of Sections 33 and 45 of DLR Act? OPD
4. Whether the suit is hit by doctrine of estoppel, as the plaintiffs have encashed their entire share of total sale consideration in respect of the suit property? OPD
5. Whether the suit of the plaintiff is barred by limitation? OPD
6. Whether the suit of the plaintiff is properly valued for the purposes of court fees and jurisdiction?
7. Whether the suit is not filed by the authorised person and in accordance with Order 6 Rule 14 and 15 CPC? OPD
8. Relief Evidence
14. Despite availing opportunity plaintiffs did not lead any evidence in this case nor led any evidence as defendant No. 4 to 7 in the connected suit filed by the defendants No. 3 to 5 herein.
15. Defendant No. 1 and 2 also did not lead any evidence despite availing opportunity.
Findings
16. Arguments of Counsel for respective parties heard. Record perused.
Issues No. 1 and 2 are related to plaintiffs entitlement for the relief claimed in the plaint therefore these issues will be taken up in the last.
CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 7 of 11 ISSUE No. 3:- Whether the court has no jurisdiction in view of Section 33 and 45 of the DLR Act? OPD
17. It seems that this issue has been framed inadvertently. In the entire written statement defendant No. 1 and 2 has not raised any objection that this court has no jurisdiction in view of section 33 and 45 of the Delhi Land Reform Act,1954. Though defendant No. 1 and 2 did raise objection with respect to suit being barred in view of prohibition contained in Delhi Land Reforms Act, 1954. Defendants No. 1 & 2 obviously indicating to the bar contained in Section 185 of Delhi Land Reforms Act,1954 but plaintiffs are not claiming declaration or injunction as contemplated under Delhi Land Reforms Act power of which rest with authority designated therein. Apart from this, power to declare a document cancelled or null and void exclusively lies with Civil Court. Hence, this court has jurisdiction to try and entertain the present suit. Issue under consideration stands disposed of accordingly.
ISSUE No.4:- Whether the suit is hit by doctrine of estoppel, as the plaintiffs having encashed their entire share of total sale consideration in respect to the suit property? OPD
18. Onus to prove this issue is upon the defendant No. 1 and 2. No evidence has been led by the defendant. There is no dispute that plaintiffs have executed sale deed in favour of defendant No. 1 in respect of the suit property and there is also no dispute that plaintiffs have received sum of Rs. 9 lacs from the defendant No. 1. The contention of the plaintiffs is that it was agreed that defendant would also execute sale deed in respect of land owned by defendant No.1 which was to be given to the plaintiffs. If at all that was so then under the circumstance the appropriate relief to which plaintiff would have been entitled to was to seek relief specific performance of the agreement and additionally seek alternate relief of cancellation of sale deed if defendant was not willing to execute the sale deed as agreed despite decree.
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19. Though estoppel is described as merely rule of evidence however it may have the effect of creating substantive rights as against person who is estopped. Estoppel by deed, a branch of rule of estoppel, is based on the principle that when a person has entered into a solemn engagement by deed under his hand, he shall not be permitted to deny any matter which he has so asserted. It is rule of evidence according to which certain evidence is taken to be of so high and conclusive in nature as to admit of no contradictory proof. As per the case of the plaintiffs themselves no fraud was played so far as nature of the documents to be executed by the plaintiffs is concerned, therefore, plaintiffs are estopped from denying the contents thereof wherein there is no reference of any agreement about the execution of exchange deed or alternatively of sale deed or transfer of a portion of land being shown as consideration amount for the execution of the sale deed by plaintiffs.
Hence, issue under consideration stands accordingly decided in favor of defendant and against plaintiffs.
ISSUE No. 5:- Whether the suit of the plaintiff is barred by limitation? OPD
20. Onus to prove this issue is upon the defendants No. 1 and 2. Defendants have not led any evidence. Plaintiffs themselves have pleaded that cause of action first arose on 17.03.2005 and plaint was filed on 15.03.2008. As per article 59 of the Schedule to The Limitation Act, 1963 suit to cancel a document can be filed within 3 years from the date when the facts entitling the plaintiff to have the instrument cancelled first became known to him. Thus as per plaintiff since cause of action arose on 17.03.2005, therefore, suit having been filed on 15.03.2008 is within limitation.
Issue No. 5 is accordingly decided against the defendants and in favour of plaintiffs.
ISSUE No.6:- Whether the suit of the plaintiff is properly valued for the purposes of course fees and jurisdiction? OPD CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 9 of 11
21. Onus to prove this issue with upon the defendants No. 1 and 2. Defendants No. 1 and 2 have not led any evidence. Plaintiffs have valued the suit for the purpose of relief of declaration and cancellation at Rs 9 lakh and for the relief of permanent injunction at Rs. 130/-. It is a settled law that when executant of a document seeks cancellation of the document he has to value the suit according to the value of the document or consideration amount shown in the document. Present suit is in respect of a sale deed consideration amount of which is Rs 12 lakh. Therefore, plaintiff is required to value the suit at the whole amount/value of the document/sale deed because if the document is cancelled it will not be cancelled only against the plaintiffs but whole document will result into a nullity. Hence, suit has not been properly valued for the purposes of court fees.
Issue No. 6 is accordingly decided in favour of the defendants and against the plaintiffs.
ISSUE No. 7:- Whether the suit is not filed by the authorised person and in accordance with Order 6 Rule 14 and 15 CPC? OPD
22. Onus to prove this issue is upon the defendants No. 1 and 2. Defendants No. 1 and 2 have not led any evidence. Plaint has been signed and verified by plaintiff No.1 on behalf of himself as well as on behalf of plaintiffs No. 3 and 4 as an attorney. Plaintiff No.2 has also signed and verified the plaint. Plaint is also supported by affidavit of plaintiff No. 1. It has not been pointed out as to how there is a defect in the plaint despite the attorney of plaintiff No. 3 and 4 are on record.
Hence, Issue No. 7 is decided against the defendant and in favour of plaintiffs.
ISSUE No. 1:- Whether the plaintiff is entitled for a decree of declaration / cancellation of documents and other reliefs as mentioned in prayer clause (a) and (b) of the plaint? OPP ISSUE No. 2:- Whether the plaintiff is entitled for a decree of injunction has CS No. 15516/16 Virender Singh vs. M/s P.S.S. Agro & Investment Pvt. Ltd. Page No. 10 of 11 prayed in prayer clause (c) of the plaint? OPP
23. Onus to prove these issues is upon plaintiffs but plaintiffs have not led any evidence and issue involves questions of facts which cannot be decided without evidence, accordingly both issues are decided against the plaintiffs and in favour of defendants no. 1 and 2.
Relief In view of the findings recorded above on all issues, suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly Filed be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open Court. ADJ-13(Central)/THC
(Judgment contains 11 pages) Delhi/10.11.2017
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