Delhi District Court
Virender Singh (Counter Claimant) vs Devendra Singh on 23 October, 2024
IN THE COURT OF MS. PRABH DEEP KAUR: DJ-05, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS No. 11261/2016
CIS No. DLSE01-005487-2016 (Main Suit)
CS No.168/2018 (Counter claim)
1. Devendra Singh
S/o Sh. Rajeev Singh
R/o 720-A/7, Govindpuri, Kalkaji
New Delhi - 110019
2. Sunil Takkar
S/o Sh. Rajender Takkar
R/o 59/11, Kalkaji Extension,
New Delhi-110019
3. Mangat Ram Sharma
S/o Late Sh. L.D. Sharma,
R/o 466/6, Govindpuri Kalkaji,
New Delhi-110019
.....Plaintiffs/Non-counter claimants
versus
1. Jagmer Singh Solanki (Not a party to counter claim)
2. Devender Singh Solanki (Not a party to counter claim)
3. Vijender Singh Solanki @ Virender Singh (Counter claimant)
All sons of Sh. Peru Singh,
Presently residing at 403/8,
Govindpuri, Kalkaji, New Delhi-110019
.....Defendants
Date of institution of the suit : 17.08.2016
Date of institution of counter claim : 11.01.2018
Date on which order was reserved : 28.09.2024
Date of decision : 23.10.2024
CS No. 11261/2016
CIS No. DLSE01-005487-2016 (Main Suit)
CS No.168/2018 (Counter claim) Page No. 1/60 Dated 23.10.2024
Digitally signed
PRABHDEEP by PRABHDEEP
KAUR
KAUR Date: 2024.10.23
17:55:50 +0530
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF,
POSSESSION, DAMAGES/MESNE PROFIT AND PERMANENT
INJUNCTION
&
COUNTER CLAIM FOR DECLARATION AND FOR PERMANENT
INJUNCTION
JUDGMENT
(1) Vide this common judgment, the suit for declaration with consequential relief, possession, damages/mesne profit and permanent injunction filed by plaintiff against the defendants and the counter claim for declaration and permanent injunction filed by counter claimant Sh. Virender Singh (i.e. defendant no. 3 in the main suit) have been disposed off.
(2) The property in question is entire built up property no. 403, Gali No.5, measuring 102 sq.yds. (85.27 sq. mtrs.) comprising of Khasra No. 93 situated at Govindpuri Kalkaji, New Delhi-110019 (herein after called "suit property"). Admittedly, Smt. Mahaveeri Devi was the previous owner of the property and both parties are claiming to have derived their titles from Smt. Mahaveeri Devi. As per plaintiff, he purchased the suit property from Smt. Mahaveeri Devi vide registered sale deed dated 05.07.2016 while as per defendant no. 3, he had purchased the property from Smt. Mahaveeri Devi vide GPA, Agreement to sell all dated 26.10.2000. Smt. Mahaveeri Devi is stated to have purchased the property vide registered GPA, Agreement to sell, receipt, possession all dated 31.08.2000 executed by Ms. Lovely Goswami who was the attorney of owner of the property i.e. Mrs. Nand Rani. The documents pertaining to CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 2/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:55:56 +0530 ownership of Smt. Nandrani are not on record.
The averments of the plaintiffs:
(3) As per plaintiffs, they jointly purchased the suit property for a total sale consideration of Rs.61 lakhs (Rs. sixty one lakh only) vide registered sale deed dated 5.7.16 from Smt. Mahaveeri Devi, she expressly told the plaintiffs that she had given oral authority to the defendants i.e. her relative to look after the property as she was residing aboard since last many years, however, defendants jointly and severally have illegally and unauthorizedly occupied several other portions of the property as well and they were staying therein without any status except as that of licensees and permissive users. The permission given to the defendants by Smt. Mahaveeri Devi was withdrawn with intimation to all the defendants.
After selling the suit property when Smt. Mahaveeri Devi came to the property alongwith the plaintiffs, the defendants declined to vacate the same and also threatened all of them with dire consequences and they also made false claim of ownership of the suit property in the grab of false documents of the suit property except one room which was in exclusive use of Smt. Mahaveeri Devi, the room whose possession was interested by Smt. Mahaveeri Devi to plaintiff. It was also learnt by the plaintiffs that earlier also the defendants had given threats to Smt. Mahaveeri Devi that if she did not sell the property to them, they would not vacate the same. Thus, under the grab of their unauthorized occupation of a part of the property, defendants also took away and broke open a box belonging to Smt. Mahaveeri Devi and removed all the original documents including the previous chain of documents of the suit property and her personal CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 3/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:02 +0530 valuable belongings. The defendant no.2 is posted as a Constable in Delhi Police and is thus misusing his position on the said post. Plaintiffs sent a notice upon the defendants as detailed by Smt. Mahaveeri Devi, intimating them that the plaintiffs are registered owners of the suit property. Additionally, Smt. Mahaveeri Devi also sent an intimation by registered post to all the defendants vide intimation letter dtd. 08.07.2016. The plaintiffs visited suit property two days back and asked the defendants to comply with the legal notice dated 12.07.2016 but they raised false claim of ownership on the basis of some "forged and fabricated papers". Since the occupation and possession of the defendants over the suit property is illegal and unauthorized after the sale of the property by Smt. Mahaveeri Devi to the plaintiffs, defendants are bound to hand over its possession back to the plaintiffs and are also liable to pay damages/mesne profits at the rate of Rs.2000/- per day for their illegal occupation and use of the property after the service of legal notice. Therefore, the plaintiffs have filed the suit for following reliefs:-
a) Grant a decree of declaration in favour of plaintiffs and against the defendants thereby declaring that the plaintiffs are the owners of the suit property by virtue of registered sale deed.
b) Grant a decree of possession of the suit property as shown in the site plan in "red colour" thereby directing the defendants to hand over the peaceful and vacant possession to the plaintiffs.
c) Grant a decree of permanent injunction against the defendants thereby restraining the defendants from selling, alienating, transferring, or creating t third party interest in the suit property and changing the nature and character of the same by constructing, renovating, or in any other manner directly or through their agents, CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 4/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:08 +0530 representatives assignees etc.
d) Grant a decree of damages and mesne profits against the defendants for use and occupation of the aforesaid property at the rate of Rs.2,000/- per day from the date of filing of the suit till the date of the vacation of the same by the defendants.
e) Grant the costs of this suit and any other further relief(s). Defence of defendant nos. 1 and 2.
(4) Defendant no.1 and 2 have filed separate written statements but they have taken one and same defence that Plaintiffs and the Defendant No.3 are in the collusion and conspiracy of each other and they have filed the present suit in collusion with each other. As per defendant no. 1 and 2, the present suit is not maintainable as they are tenants under the Defendant No.3 and therefore the present suit is barred by the provisions U/s 50 of the Delhi Rent Control Act and no legal notice for recovery of possession have been served upon them by the plaintiffs. Defendant no. 1 /Sh. Jagmer Singh Solanki has been residing in the suit property since August-2000 under the tenancy of Smt. Mahaveeri Devi and thereafter in October-2000, the Defendant No.3 has purchased the suit property from its erstwhile owner Smt. Mahaveeri Devi and therefore, the previous tenancy of the Defendant No.1 and 2 and their wives was transferred in the hands of the Defendant No.3 and defendant no. 3 permitted them to reside in some portion of the first floor of the suit property as tenants. Since then the Defendant No.1 and 2 alongwith their wives are residing in the suit property as a tenants and are paying Rs.2000/- per month as rent to the Defendant No.3 in terms of oral agreement. Defendant no. 1 and 2 denied the allegations that Smt. Mahaveeri Devi expressly told the plaintiffs that the defendants are related to her and they were given an oral authority to CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 5/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:14 +0530 look after the said property for the reason that Smt. Mahaveeri Devi was residing aboard for the last so many years. They also denied that after selling the suit property when Smt. Mahaveeri Devi came to suit property alongwith plaintiffs, defendants refused to vacate the property and threatened them with dire consequences or that defendant no. 2 is misusing his post. They also denied that when plaintiffs went to the suit property two days back and asked the defendants to comply with the legal notice dated 12.07.2016, they raised baseless claim of ownership of the suit property by virtue of some "forged and fabricated papers". Defence of defendant no. 3:
(5) Defendant no. 3 contested the suit and claimed the ownership of the suit property. Defendant no. 3 had purchased the Suit Property on 26.10.2000 by virtue of valid sale documents viz. General Power of Attorney, Agreement to Sell and Purchase both dated 26.10.2000 and since then he is in the possession of the Suit Property i.e. for the last more than 16 years. In the case of "UP Awas Evam Vikas Parishad Sharma", vide S.A. v. Prem Prakash No.188/2016, the Hon'ble High Court of Allahabad vide its order dated 04.03.2016 has held that "...Long uninterrupted adverse possession of a trespasser may bar remedy to owner if he seeks it against trespasser after lapse of period of limitation- In such situation also his right exists but remedy is barred by law of limitation...".
It is further averred that as per Article 56 of the 'Schedule' under First Division Suits as prescribed in Limitation Act, clearly states that the period of limitation "...to declare the forgery of an instrument issued or registered is only three years ...", therefore the suit is liable to be CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 6/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:21 +0530 dismissed. Even otherwise as per Article 65 of the Schedule as prescribed in Limitation Act, clearly states that the period of limitation "...Possession of immoveable property or any interest therein based on title- Time from which period begins to run- When the possession of the Defendant becomes adverse to the Plaintiff..." is only twelve years. Therefore the present Suit is liable to be dismissed with heavy costs. The Defendant No.3 is the sole and absolute owner of the "Suit Property" as he had purchased the Suit Property from its erstwhile owner Mrs. Mahaveeri Devi by virtue of General Power of Attorney and Agreement to Sell and Purchase both dated 26.10.2000 executed by Mrs. Mahaveeri Devi in the presence of marginal witnesses after receiving the sale consideration amount of Rs.18,00,000/-. After receiving the sale consideration, Smt. Manaveeri Devi handed over peaceful and vacant possession of the Suit Property to Defendant no. 3 and completed the sale transactions. Smt. Mahaveeri Devi had purchased the Suit Property from Ms Lovely Goswami vide Regd. General Power of Attorney, Registered Will, Agreement to Sell and Purchase, Indemnity Bond, Special Power of Attorney, Affidavit, Receipt and Possession letter all dated 31.08.2000. Defendant no. 3 is in the peaceful and lawful possession of the Suit Property since the date of its' purchase i.e. since 26.10.2000. Once Smt. Mahaveeri Devi had sold the suit property to defendant no. 3, she did not have authority to sell the property to plaintiff. Smt. Mahaveeri Devi in conspiracy with plaintiffs executed sale deed dated 08.06.2016 in her favour and then within one month executed registered sale deed dated 05.07.2016 in favour of plaintiffs. The defendant no. 3 had already made a CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 7/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:26 +0530 complaint on 04.07.2016 to concerned Sub-Registrar Office with apprehension that Smt. Mahaveeri Devi was trying to create third party interest in the property. The defendant no. 3 has raised claim of ownership and has filed counter claim seeking the following reliefs Relief sought in counter claim:
a) Pass a decree of Declaration in favour of the Counter Claimant/defendant no. 3 against the plaintiffs thereby declaring the sale Deed dated 08.06.2016 allegedly executed by Mrs. Mahaveeri Devi in her own favour as well as the Sale Deed Dated 05.07.2016 allegedly executed by Mrs. Mahaveeri Devi in favour of plaintiffs as null and void being illegal ab-initio;
(b) Pass a decree of Permanent Injunction in favour of defendant no. 3 against the plaintiffs thereby restraining them from selling, mortgaging, alienating and from creating any third party interest in the Suit Property. (6) The plaintiffs have filed separate replications to the written statements of defendants thereby reaffirming and reiterating the contents of plaint and denying the contents of written statements.
Plaintiffs have opposed the counter claim by filing separate written statement. As per plaintiff, counter claim is nothing but a counter blast to the suit filed by them. The defendant no. 3 alleged to have purchased the suit property on 26.10.2000 but he never sought any declaration nor filed any suit against Smt. Mahaveeri Devi and thus, he has never sought specific performance of the alleged agreement to sell dated 26.10.2000 despite elapse of more then 18 years. The documents relied upon by defendant no. 3 are forged and fabricated. As per law laid down in the case of Suraj Lamp & Industry Vs. State of Haryana by Hon'ble Supreme Court of India the papers relied upon by defendant no. 3 don't confer or CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 8/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:31 +0530 transfer any right, title or interest in favour of defendant no. 3 and the alleged Will of Smt. Mahaveeri Devi cannot be looked upon during her life time. The documents relied upon by defendant no. 3 are unregistered documents and cannot be looked upon in view of Section 17 and 18 of the Registration Act r/w Section 23 A of the Indian Stamp Act and Section 53A of the Transfer of Property Act. The documents relied upon by the plaintiffs are registered documents, duly executed by Smt. Mahaveeri Devi who is admittedly the previous owner of the property. Smt. Mahaveeri Devi purchased the suit property after paying the consideration through pay order and therefore, it is improbable that she would sell the property to defendant no. 3 for consideration paid in cash. It is also improbable that when Smt. Mahaveeri Devi herself had purchased the property for sum of Rs. 2,98,000/- on 31.08.2000, she would sell the property within three months to defendant no. 3 for Rs. 18,00,000/-. The plaintiffs have reiterated the averments made in the plaint, during the WS to the counter claim too.
(7) From the pleadings of the parties, following issues were framed vide order dated 15.09.2017 in the main suit:-
i. Whether the plaintiff is entitled to a decree of declaration in favour of the plaintiffs and against the defendants thereby declaring that the plaintiffs are the owners of the property bearing no. 403, Gali no.5, measuring 102 sq.yards comprising khasra no. 93, situated at Govindpuri, Kalkaji by virtue of sale deed dated 05.07.2016 registered on 12.07.2016?
OPP ii. Whether the plaintiffs are entitled to a decree of possession in CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 9/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:56:36 +0530
favour of the plaintiffs and against the defendants thereby directing the defendants to hand over peaceful vacant possession of property described as bearing no. 403, Gali no. 5, measuring 102 sq.yards comprising khasra no. 93, situated at Govindpuri, Kalkaji? OPP iii. Whether the plaintiffs are entitled to a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from creating any third party interest in any manner whatsoever and also from raising any construction/renovation over property described as bearing no. 403, Gali no. 5, measuring 102 sq.yards comprising khasra no. 93, situated at Govind Puri, Kalkaji? OPP iv. Whether the plaintiffs are entitled to recover from the defendants damages/mesne profits towards use and occupation of property described as @Rs.2000 per day or at any other rate from the date of filing of the suit till handing over vacant physical peaceful possession thereof? OPD1 v. Whether the suit of the plaintiffs is a collusive suit between the plaintiffs and the defendant no. 3? OPD1 vi. Whether the suit of the plaintiffs is barred in view of Section 50 of the Delhi Rent Control Act? OPD1 vii. Whether the defendant no. 1 is in possession of the suit property since August 2000 as a tenant under Smt. Mahaveeri Devi and thereafter since October 2000 under defendant no. 3? OPD1 viii. Whether the suit of the plaintiffs is not maintainable against defendant no. 3 as the defendant no. 3 has purchased the suit property from its erstwhile owner Smt. Mahaveeri Devi on 26.10.2000 by virtue of sale documents i.e. GPA, agreement to sell and purchase, both dated CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 10/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:56:43 +0530 26.10.2000 after paying the entire sale consideration and has been put in possession of the suit property in pursuance to the agreement to sell and has been possession of the suit property for last more than 16 years?
OPD3 ix. Whether the suit of the plaintiffs is barred by limitation? OPD3 x. Whether the suit of the plaintiffs is without any cause of action?
OPD xi. Relief. (8) From the pleadings of the parties, following issues were framed
vide order dated 28.05.2019 in the Counter claim:
i. Whether the counter claimant / Mr. Virender Singh(defendant no. 3) purchased the suit property for sale consideration of Rs. 18,00,000/ from Smt. Mahaveeri Devi vide General Power of Attorney and Agreement to Sell both dated 26.10.2000? (OPP) ii. Whether the counter claimant / defendant is in legal possession of the suit property since 26.10.2000? (OPP) iii. Whether Smt. Mahaveeri Devi had no right to execute sale deed dated 05.07.2016 in respect of the suit property in favour of the respondents / plaintiffs? (OPP) iv. Whether the counterclaimant / defendant is entitled to a decree of declaration that sale deed dated 08.06.2016 executed by Smt. Mahaveeri Devi in her favour and sale deed dated 05.07.2016 executed by Smt. Mahaveeri Devi in respect of the suit property in favour of the respondents / plaintiffs is null and void?
v. Whether the counterclaimant / defendant is entitled to a decree of CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 11/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:56:49 +0530 permanent injunction against the respondents / plaintiffs, as prayed for? (OPP) vi. Relief.
(9) Vide order dated 28.05.2019, the counter claim and main suit were consolidated and following order was passed:
"The counter claim and main suit are consolidated for the purpose of recording of evidence and evidence of the main suit and counter claim will be recorded in the suit vide CS No. 11261/2016"
In pursuant to the order dated 28.05.2019, common evidence has been recorded, therefore, common judgment is being passed in both cases. (10) Plaintiff's evidence:
10. (a) In order to prove their case, plaintiffs have examined five witnesses. Plaintiff no. 3 has examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW-1/A wherein he has reiterated the averments made in the plaint. He has relied upon the documents i.e. copy of sale deed executed between Mahavira Devi in favour of plaintiffs as Mark A, site plan as Ex. PW1/2, notice dated 12.07.2016 as Ex. PW1/3, postal receipts as Ex. PW1/4, Ex. PW1/5 and Ex. PW1/6, acknowledgment cards as Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9, intimation letter dated 08.07.2016 as Ex. PW1/10, postal receipts as Ex.
PW1/11, Ex. PW1/12 and Ex. PW1/13, water bill dated 08.03.2013 as Ex. PW1/14, electricity bill dated 24.02.2014 as Ex. PW1/15, original property tax receipts dated 04.07.2016 as Ex. PW1/16, photocopy of payment receipt dated 04.07.2016 as Mark B and photocopy of electricity bill dated 29.08.2016 as Mark C. He was extensively cross examined by CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 12/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:56:55 +0530 ld. counsel for all defendants.
10 (b) PW-2 Shri Dharampal, Senior Assistant, Delhi Jal Board produced the record relating to meter code no. 503, area code A-4, Giri Nagar, old WC no. 23927, new K No. 8857241000 in the name of Smt. Mahaveeri Devi with address 403, Govindpuri, New Delhi and deposed that water connected was mutated in the name of Shri Mangal Ram Sharma vide bill dated 02.08.2016. The certified copy of three bills are Ex. PW2/1 in the name of Smt. Mahviri Devi, Ex. PW2/2 (colly.) and Ex.PW2/3 (colly in the name of plaintiff no. 3. He also produced the certified copy of mutation order alongwith application, no objection form, water bill, property papers and Aadhar card of plaintiff no. 3 as Ex. PW2/4 (Colly.). He was cross examined by ld. counsel for defendants. 10 (c) PW-3 Shri Nawal Kishor produced the certified copy of assessment order dated 28.05.1996 as Ex.PW3/1, information performa for financial year 1994-95 as Ex.PW3/2, valuation report as Ex. PW3/3, survey report of 1994 as Ex. PW3/4, notice bearing serial no. 11515 as Ex. PW3/5, one inspection form of year 1983 as Ex. PW3/6, notice of the year 1983-84 as Ex. PW3/7, assessment order dated 22.01.1987 as Ex. PW3/8, assessment order dated 03.02.20197 as Ex.PW3/9, notice bearing no. 16457 as Ex. PW3/10, attested photocopy of property tax receipt bearing no. CI 67716 dated 04.07.2016 as Ex.PW3/11. He was cross examined by ld. counsel for defendant no. 3.
10 (d) PW-4 Shri Dheeraj Kumar, Junior Assistant, Record Keeper, Officer of the Sub-Registrar-V, Mehrauli produced the original record of sale deed bearing registration no. 4360 in book no. 1, volume no. 14348 CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 13/60 Dated 23.10.2024Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:57:01 +0530 on page 1 to 7 dated 12.07.2016 and certified copy of same is Ex.PW4/1. He also produced the certified copy of sale deed bearing registration no. 3785 which is already Ex.PW1/DA (OSR).
10 (e) PW-5 Shri Yashpal, Assistant Personnel Officer, BSES Rajdhani Power Ltd. produced the certified copies of the application form for change in connection particulars consisting of 2 pages, one declaration consisting of 1 page, old paid bill consisting of one page, copy of the Aadhar Card of the applicant one page, and copy of driving license of Mr. Devender Singh one page, copy of the driving license of Mr. Sunil Takkar one page, copy of the sale deed total 13 pages, copy of the no objection certificate one page. He also brought certified photocopies of the Bill in the name of Mr. Mangat Ram Sharma having CA No.151912345 alongwith the payment schedule (2 pages), another bill having CA No.150710966 in the name of Smt. Mahaveeri Devi Solanki alongwith payment schedule (2 pages), this electricity connection was changed to the name of Mangat Ram Sharma from the name of Smt. Mahaveeri Devi Solanki vide Energisation date 06.07.2016. He had not brought the required certificate to prove as the documents are system generated since the summons has been received only on yesterday i.e. 08.07.2019, he can produce the required certificate on the next date. The entire record consisting of 25 pages are marked as Mark "X" and he brought the certificate u/S 65 (B) of Indian Evidence Act which is Ex. PW5/B (colly).
He was cross examined by defendant no.3.
(11) Thereafter matter was fixed for defendant's evidence. 11 (a) In defence, defendant no. 2 has examined himself as D2W1 and he CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 14/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:57:07 +0530 tendered his evidence by way of affidavit Ex.D2W1/A wherein he has reiterated and reaffirmed the contents of written statement. He relied on the document i.e. MTNL telephone bill dated 14.11.2000 in the name of Shri Jagmer Solanki vide CA No. 2083082456 as Ex.D2W1/1. He was extensively cross-examined by ld. counsel for the plaintiff. 11 (b) Defendant no. 3 has examined six witnesses. He has himself as D3W1 and tendered his evidence by way of affidavit Ex.D3W1/1 wherein he has reiterated and reaffirmed the contents of written statement. He relied on the document i.e. copy of GPA dated 31.08.2000 as Ex.D3W1/A (OSR), copy of agreement to sell dated 31.08.2000 as Ex.D3W1/B (OSR), copy of Will 31.08.2000 is Ex.D3W1/C (OSR), copy of indemnity bond dated 31.08.2000 as Ex.D3W1/D (OSR), copy of Special Power of Attorney attested on 27.09.2000 as Ex.D3W1/E (OSR), copy of possession letter as Ex.D3W1/F (OSR), copy of Affidavit as Ex.D3W1/G (OSR), copy of receipt as Ex.D3W1/H (OSR), (all executed by Ms. Lovely Goswami in favour of Mrs. Mahaveeri Devi W/o Mr. Hari Kishan Singh Solanki), GPA dated 26.10.2000 executed by Mrs. Mahaveeri Devi in favour of Virender Singh i.e.Ex.D3W1/I, agreement to sell dated 26.10.2000 executed by Mrs. Mahaveeri Devi in favour of Virender Singh i.e.Ex.D3W1/J, copy of voter ID card is Ex.D3W1/K (OSR), copy of police complaint dated 04.07.2016 to SHO PS Govindpuri as Mark-X, copy of police complaint dated 04.07.2016 to DCP, South East is Mark-Y, copy of police complaint dated 04.07.2016 to Sub-Registrar-V, Mehrauli, New Delhi is Mark-Z, copy of police complaint dated 10.12.2018 to SHO, PS Govindpuri is Mark-ZA, copy of TDS certificate / Form -16A issued CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 15/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:14 +0530 by IDBI dated 03.08.2016 is Mark-ZB (objected by Ld. Counsel for plaintiffs on the ground of mode of proof and for want of certificate u/s.
65B of Evidence Act), copy of California senior citizen identification card of Mrs. Mahaveeri Devi Solanki is Mark-ZC, copy of 43 electricity bill Ex.D3W1/L (OSR). He was extensively cross-examined by ld. counsel for the plaintiff.
11(c) Shri Pradeep Rana was examined as D3W2 and he tendered his evidence by way of affidavit Ex. D3W2/1. He relied on the document i.e. certificate u/s. 65-B of Evidence Act as Ex. D3W2/A (colly.), copy of Indian Express newspaper as Ex.D3W2/B and copy of election ID card as Mark A. He was cross-examined by ld. counsel for the plaintiff. 11(d) Shri Harpal Singh was examined as D3W3 and he tendered his evidence by way of affidavit Ex. D3W3/1. He relied on the copy of Aadhar card as Ex. D3W3/1/A (OSR). Ex. D3W3/1. He was extensively cross-examined by ld. counsel for the plaintiff. 11(e) D3W4 Shri Bajumon George, Junior Associate, BSES Rajdhani Pvt. Ltd. produced the original record relating to CA no. 101659382 (old K No. 8658050 book no. N576, new K, no. 2510N5760167) BSES Bill dated 22.12.2012 as Ex.D3W4/1 in the name of Ms. Nand Rani, last bill generated on 28.02.203 as Ex.D3W4/2, reading details from October 2002 to April 2011 as Ex.D3W4/3 and payment details from July 2002 to April 2011 as Ex.D3W4/4, bill dated 11.06.2016 in the name of Ms.Mahabiri Devi Solanki as Ex.D3W4/5, bill dated 04.08.2016 as Ex.D3W4/6, copy of application dated 27.02.2023 for change of name of Smt. Mahabiri Devi Solanki alongwith copy of last bill generated in the name of Ms. CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 16/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:19 +0530 Nand Rani dated 18.01.2013, copy of affidavit dated 27.02.2013, copy of senior citizen I-card issued at California, USA as Ex.D3W4/7 (colly.), copy of GPA executed by Ms. Lovely Goswani D/o Shri Madan Lal Goswami in favour of Smt. Mahabiri Devi Solanki as Ex.D3W4/8 and copy of GPA dated 29.05.2000 as Ex.D3W4/9, copy of statement of account from 28.02.2013 to 05.07.2016 as Ex.D3W4/10. He was cross examined by ld. counsel for the plaintiffs.
11(f) D3W5 Ct. Harinder, PS Govindpuri produced the complaints registered vide DD no. 35-B dated 04.07.2016 at serial no. 965 as Ex.D3W5/1 (OSR), vide DD no. 20-B dated 31.12.2016 at serial no. 1893 as Ex. D3W5/2 (OSR) and vide DD no.44-B dated 10.12.2018 at serial no. 3109 Ex. D3W5/2 (OSR) filed by defendant no. 3 for property dispute. 11(g) D3W6 Shri Sunil Kumar Saklani, Allotment Clerk, ZRO, South II, Giri Nagar, Govindpuri produced the bill history from Delhi Jal Board for the year 2000 to 2019 with respect to connection no. 23927 (K. No.13822309749, New K. No. 8857241000) as Ex.D3W6/1 (colly. 11 pages). He also produced the copy of mutation bill as Ex.D3W6/2 as connection was initially in the name of Smt. Nand Rani which was changed to the name of Shri Mangal Ram Sharma on 04.08.2016 and reading history from 2012 to 2019 as Ex.D3W6/3 (running into 2 pages). He was cross examined by ld. counsel for the plaintiff. (12) Thereafter matter was fixed for final arguments. (13) I have heard both the parties and meticulously gone through the record.
(14) It has been argued on behalf of plaintiff that admittedly Smt. CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 17/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:24 +0530 Mahaveeri Devi was the previous owner of the property and defendants who were her relatives were allowed to look after the property as Smt. Mahaveeri Devi was residing in abroad. Ld. Counsel for plaintiffs has read over the plaint and it has been argued that to prove the averments in the plaint, plaintiff no. 3 has entered into witness box and he has duly corroborated each and every averment of the plaintiffs. Further, Ld. Counsel for plaintiffs has read over the testimony of PW-1 and it has been argued that even during cross examination, plaintiff no. 3/PW-1 had denied the defence of defendants. It has been further argued that plaintiff no. 3 has duly proved the registered sale deed in favour of plaintiffs and it has been argued that plaintiffs have already furnished original registered sale deed before the Court and thus, plaintiffs have duly proved the registered sale deed in their favour. Further, Ld. Counsel for plaintiffs has argued that during cross examination of PW-1, defendants have questioned the correctness of site plan, however, admittedly the suit property is a built up property and identification of suit property is not in dispute, therefore, even if the site plan filed by the plaintiffs is not correct, it will not impact the suit. Ld. Counsel for plaintiffs has argued that plaintiff no. 3/PW-1 was extensively cross examined but still his testimony remained intact and thus, plaintiffs have been able to prove the averments made in the plaint.
Further, Ld. Counsel for plaintiffs has argued that plaintiffs have summoned the record from Delhi Jal Board and the witness was examined as PW-2 who had brought three water bills, one in the name of Smt. Mahaveeri Devi and two in name of plaintiff no. 3 and thus, plaintiffs CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 18/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:29 +0530 have proved that property was duly mutated in favour of plaintiffs in pursuant to registered sale deed in their favour. Ld. Counsel for plaintiffs has further argued that PW-3 /Officer from concerned SDMC Office had proved that as per record of SDMC the property is still in name of Ms. Nand Rani Goswami i.e. the previous owner of the property. Ld. Counsel for plaintiffs had argued that with the help of testimony of PW-4/official from Sub-Registrar -V, Mehrauli, New Delhi, plaintiffs have proved the registered sale deed dated 08.06.2016, registered in favour of Smt. Mahaveeri Devi and the registered sale deed dated 12.07.2016 executed by Smt. Mahavir Devi in favour of plaintiffs.
Further, Ld. Counsel for plaintiff has read over the testimony of PW-5 who has brought the record from BSES Rajdhani Power Ltd. and the witness has brought the record of electricity connection of the suit property according to which the electricity connection was transferred in name of plaintiff no. 3 /Sh. Mangat Ram Sharma on 06.07.2016 and previously the electricity was in the name of Smt. Mahaveeri Devi Solanki. Ld. Counsel for plaintiffs has further argued that in the issues framed vide order dated 15.09.2017 there is a clerical mistake as the burden of issue no. IV has been wrongly put on defendant no. 1 while it should be upon the plaintiffs. Ld. Counsel for plaintiffs has further read over the defence of defendants and has also read over the counter claim filed by defendant no. 3 and has argued that in the WS, defendant no. 3 claims himself to be owner of the property and some judgments and provisions of Indian Evidence Act have been mentioned in the WS while it is settled principles that pleadings should contain only facts and not the CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 19/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:36 +0530 judgments and law. Further, Ld. Counsel for plaintiffs has argued that though defendant no. 1 and 2 have put the allegations of collusion between plaintiffs and defendant no. 3, however, in reality there is a collusion between defendants who admittedly are real brothers. It has been further argued that defendant no. 3 is seeking ownership on the basis of unregistered sale deed while plaintiffs are seeking ownership on the basis of registered sale deed. Ld. Counsel for plaintiffs has pointed out towards the documents Ex. D3W1/A to Ex. D3W1/F i.e. the documents executed in favour of previous owner i.e. Smt. Mahaveeri Devi and has argued that out of these documents only one document Ex. D3W1/B i.e. Agreement to sell, bears signature of Smt. Mahaveeri Devi. Further, Ld. Counsel for plaintiffs has pointed out towards GPA and Agreement to Sell Ex. D3W1/I and Ex. D3W1/J i.e. the alleged documents signed by Smt. Mahaveeri Devi in favour of defendant no. 3. Ld. Counsel for plaintiffs has argued that Court can examine the signatures u/S 73 of Indian Evidence Act and therefore, Court can examine the signatures of Smt. Mahaveeri Devi on the above pointed documents and it is visible from naked eyes that the signatures of Smt. Mahaveeri Devi on the document Ex. D3W1/B and the alleged signatures on document Ex. D3W1/I and Ex. D3W1/Z are totally different and thus, it is clear that the documents in favour of defendant no. 3 are forged and fabricated and these documents don't bear signatures of Smt. Mahaveeri Devi. It has been further argued that defendant no. 3 has taken the plea of adverse possession on one hand and on the other hand, defendant no. 3 is claiming to be owner of the property. Clearly, the plea of ownership and plea of adverse possession are so contradictory as it is CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 20/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:43 +0530 suicidal and cannot be taken together. It has been further argued that plaintiffs purchased the property in 2016 and they approached the court within the period of 12 years, therefore, the possession of defendants cannot be adverse to the claim of plaintiffs. Further, Ld. Counsel for plaintiffs has read over the cross examination of PW-1/Plaintiff no. 3 and has argued that plaintiffs have duly proved that immediately after purchasing the property through registered sale deed, defendants were not only intimated about the sale but defendants were also served with the legal notice to vacate the property and therefore, it is not clear how defendants are claiming to be in adverse possession. Further, Ld. Counsel for plaintiffs has read over the WS of defendant no. 1 and 2 and has argued that despite allegations of collusion between plaintiffs and defendant no. 3, the written statements of all the defendants are almost verbatim and it proves that there is a collusion between defendants. Further, Ld. Counsel for plaintiffs argued that defendant no. 1 and 2 are admitting that they are in possession of the property as tenants and therefore, they cannot question the title or ownership of Smt. Mahaveeri Devi. It has been further argued that defendants have admitted that Smt. Mahaveeri Devi was the previous owner of the property and therefore, even if the registered sale deed executed in favour of Smt. Mahaveeri Devi is taken off the record, even then the registered sale deed executed by Smt. Mahaveeri Devi in favour of plaintiffs is sufficient to prove the ownership of plaintiffs. It has been further argued that as per defendant no. 1 and 2 they became tenants under Smt. Mahaveeri Devi in August 2000 but Smt. Mahaveeri Devi cannot let out the property to defendants in CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 21/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:57:49 +0530 August 2000 as she herself became owner of the property on 31.08.2000. It has been further argued that Smt. Mahaveeri Devi purchased the property at a throw away price in August 2000 and she paid the entire consideration to bank transfer and therefore, it is improbable that within three months, defendant no. 3 would purchase the suit property at such a high amount as alleged. It has been further argued that during cross examination of PW-1, defendant no. 3 has disputed the site plan filed by the plaintiffs and once the defendants have disputed the same, they were required to file the correct site plan and to prove it as per law but defendants have failed to do the same and therefore, the site plan relied upon by the plaintiffs should be considered as correct. It has been further argued that defendant no. 1 and 2 have not brought on record any document or record to prove that property was given on rent to defendants. It has been further argued that during cross examination of PW-1, defendants has brought up the name of one Mr. Madan Pal but defendants have not brought anything on record to show who is that person and what is his connection with the present case. It has been further argued that plaintiffs have paid the sale consideration to Smt. Mahaveeri Devi by way of valid transactions /bank transactions and there is a registered sale deed in favour of plaintiffs, therefore, the suit is liable to be decreed in favour of plaintiffs. It has been further argued that apart from PW-1, other PWs are the witnesses from government offices and these witnesses cannot prove the ownership of the property but plaintiffs have summoned these witnesses to prove that immediately after purchasing the property, plaintiffs have approached concerned departments(BSES, Delhi CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 22/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:57:55 +0530 Jal Board etc.) to mutate the property in their names and thus, plaintiffs have shown the natural human conduct, however, the conduct of defendant no. 3 is questionable as to why defendant no. 3 had not approached these departments to mutate the bills in his name despite the fact that defendant no. 3 alleged to have purchased the property in the year 2000. It has been further argued that the record of BSES and Delhi Jal Board reflected that Smt. Mahaveeri Devi had applied in the year 2012 to get her name registered as consumer, however, defendant no. 3 had never taken any step to get himself registered as consumer, which is against the human nature. Further, Ld. Counsel for plaintiffs has argued that both defendant no. 1 and 2 claimed to be tenants over the suit property despite that during DE only one defendant has entered into witness box and not the other. Ld. Counsel for plaintiffs has read over the testimony of defendant no. 2 /D2W1 and has argued that defendant no. 2 admitted that Smt. Mahaveeri Devi had let out the property to them as licensee only and Smt. Mahaveeri Devi was cousin bhabhi of defendants. It has been further argued that during cross examination defendant no. 2 stated that defendant no. 1 and 2 were residing in the property since 1991 but when Smt. Mahaveeri Devi had purchased the property in the year 2000, then how can they reside in the property in the year 1991. It has been further argued that during cross examination defendant no. 2 admitted that legal notice was sent to defendants on the correct address, therefore, there will be a presumption that legal notice was received by the defendants. It has been further argued that defendant no. 2 admitted that there is no rent agreement between Smt. Mahaveeri Devi and defendant no. 1 and 2 nor there is any rent receipt. He CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 23/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:58:00 +0530 also admitted that there is no document to show that defendant no. 1 and 2 are tenant under defendant no. 3. Further, Ld. Counsel for plaintiffs has argued that defendant no. 3 has entered into witness box as D3W1 and Ld. Counsel for plaintiffs has read over the testimony of witness and his cross examination. It has been further argued that the documents relied upon by defendant no. 3 appeared to be executed on some yellow papers of some school books and it is unnatural that sale documents of an immovable property will be executed on the papers which seem to be papers of a school book. It has been further argued that defendant no. 3 admitted during cross examination that defendant no. 1 and 2 were residing in the property being relative of Smt. Mahaveeri Devi. It has been further argued by Ld. Counsel for plaintiffs that the documents relied upon by defendant no. 3 are forged and fabricated and it is evident from the facts that on 26.10.2000 it was a Diwali Day and it is highly improbable that sale deed will be executed on the day of Diwali because in India nobody would do such transactions on auspicious day of Diwali. It has been further argued that defendant no. 3 could not explain why Smt. Mahaveeri Devi would purchase the property by way of bank transfer and then would sell it in cash which is considered as unaccounted money. Further, Ld. Counsel for plaintiffs has read over Section 17, 49 and 50 of the Registration Act and has argued that the documents relied upon by defendant no. 3 are unregistered documents and therefore, are liable to be impounded and the registered documents in favour of plaintiffs are to supersede all the unregistered documents. It has been further argued that the documents in favour of defendant no. 3 are agreement to sell and GPA CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 24/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:08 +0530 and in view of the judgment of Suraj Lamp & Industry V. State of Haryana these documents cannot confer any title in favour of defendant no. 3. Further, Ld. Counsel for plaintiffs has argued that the documents in favour of defendant no. 3 are only notarized documents and therefore, these documents have no legal value in the eyes of law. Further, Ld. Counsel for plaintiffs has read over the testimony of DW Sh. Pradeep Rana and has argued that the witness has testified in favour of defendants as defendant no. 3 is his real uncle. It has been further argued that this witness has admitted that he has not signed any documents and his entire testimony seems full of contradictions and inconsistencies. Further, Ld. Counsel for plaintiffs has read over the testimony of Sh. Harpal Singh who deposed as D3W3 and has argued that the documents relied upon by defendant no. 3 don't mention the identity of the witness, therefore, it cannot be ascertained whether Mr. Harpal Singh who appeared in the Court is the same person who signed the documents relied upon by the defendant no. 3. Further, Ld. Counsel for plaintiffs has pointed out that during cross examination, that witness Sh. Harpal Singh/D3W3 admitted that he had not asked the defendant no. 3 as to why he was taken to Tis Hazari Court on the day of Diwali and it has been argued that it is highly improbable that on the day of festival of Diwali anyone would step out from his house and would come to Delhi from Baghpat only to sign some documents as a witness. It has been further argued that from the testimony of D3W3 it is clear that he is an implanted witness as he was not able to answers most of the material questions. It has been further argued that defendants cannot take benefit from the loop hole in the case of plaintiff as CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 25/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:13 +0530 it is not a criminal matter and the counter claim of the defendant no. 3 is to stand on it own legs. It has been further argued that only because theft case has not been filed by Smt. Mahavir Devi or by plaintiffs, does not mean that plaintiffs cannot take the plea in the court or cannot prove the same in the court. It has been further argued that plaintiffs have not taken any steps against Smt. Mahaveeri Devi because plaintiffs have filed the present suit to assert their rights conferred upon them through registered sale deed. It has been further argued that once defendant have admitted the fact that Smt. Mahaveeri Devi was the owner of the property, they cannot challenge her acts of executing the documents in her favour or in favour of plaintiffs. Further Ld. counsel for plaintiffs have relied upon the following judgments:
I. "Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr", Special Leave Petition © No. 13917 of 2009, date of decision 11.10.2011;
II. "Subraya M.N. Vs. Vittala M.N. & Ors", Civil Appeal No. 5805 of 2016 decided on 05.07.2016; III. "Fame Securities and Credits Pvt. Ltd. Vs. P. Dinakaran & Anr", 2013(4) CLJ 43 Del;
IV. "Shri Yudhisther Sharma Vs. Shri Om Prakash Sharma" , RSA No. 132/2017 decided on 09.05.2017; V. Hardip Kaur Vs. Kailash & Anr.", RFA No. 648/2006, date of decision 18.05.2012;
VI. Smt. Shashi Bala Nagpal Vs. Sh. Rama Kant Shah, RSA No. 13/2015, dated 02.08.2016.
(15) Defendant no. 1 and 2 have addressed oral submissions and they have reiterated the same by way of written arguments which are part of record and therefore, same are not repeated here for the sake of brevity.
Defendant no. 3 has addressed oral submissions and he has reiterated the same by way of written arguments which are part of record CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 26/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:19 +0530 and therefore, same are not repeated here for the sake of brevity. During arguments, Ld. Counsel for defendant no. 3 submitted that defendant no. 3 does not want to reply upon the plea of adverse possession and accordingly, does not want to address issue of period of limitation. (16) My issue-wise findings are as follows:-
Issue no. 1: Whether the plaintiff is entitled to a decree of declaration in favour of the plaintiffs and against the defendants thereby declaring that the plaintiffs are the owners of the property bearing no. 403, Gali no.5, measuring 102 sq.yards comprising khasra no. 93, situated at Govindpuri, Kalkaji by virtue of sale deed dated 05.07.2016 registered on 12.07.2016? OPP Issue no. 2: Whether the plaintiffs are entitled to a decree of possession in favour of the plaintiffs and against the defendants thereby directing the defendants to hand over peaceful vacant possession of property described as bearing no. 403, Gali no. 5, measuring 102 sq.yards comprising khasra no. 93, situated at Govindpuri, Kalkaji? OPP Issue no. 3: Whether the plaintiffs are entitled to a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from creating any third party interest in any manner whatsoever and also from raising any construction/renovation over property described as bearing no. 403, Gali no. 5, measuring 102 sq.yards comprising khasra no. 93, situated at Govind Puri, Kalkaji? OPP Issue no. 4: Whether the plaintiffs are entitled to recover from the defendants damages/mesne profits towards use and occupation of property described as @Rs.2000 per day or at any other rate from the date of filing CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 27/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:24 +0530 of the suit till handing over vacant physical peaceful possession thereof? OPD1 16.1 All these issues are taken up together as they are interrelated and finding on one issue will have bearing on the other. Ld. Counsel for plaintiffs has submitted that the onus of issue no. 4 was inadvertently put up on defendant no. 1 while it should have been upon the plaintiffs. Ld. Counsels for defendants have agreed to the same. In view thereof, using the power under Order 14 Rule 5 CPC the issue no. 4 framed vide order dated 15.09.2017 is amended to the extent that onus of the issue be read as OPP, instead of OPD1. Thus, the onus to prove all these issues were placed upon plaintiffs.
16.2 The admitted facts are that property was originally owned by one Mrs. Nand Rani and on 29.05.2000 Mrs. Nand Rani executed GPA(Ex. D23W4/9) in favour of her daughter Smt. Lovely Goswami. Thereafter, on 31.08.2000, Smt. Lovely Goswami, being Power of Attorney Holder of her mother sold the suit property to Smt. Mahaveeri Devi for Rs.
2,98,000/- (paid via pay orders) vide registered GPA, Agreement to Sell and Purchase, Will, Indemnity Bond, Special Power of Attorney, Possession Letter, Affidavit and Receipt, all dated 31.08.2000(Ex. D3W1/A to Ex. D3W1/H). Thus, both the parties have admitted that Smt. Mahaveeri Devi was the previous owner of the suit property. Now defendant no. 3 stated that Smt. Mahaveeri Devi sold the suit property to him on 26.10.2000 while as per plaintiffs Smt. Mahaveeri Devi sold the suit property to them on 12.07.2016. Despite the fact that both parties are claiming to have derived their title from Smt. Mahaveeri Devi, none of the CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 28/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:29 +0530 parties has impleaded Smt. Mahaveeri Devi as a party nor anyone has brought her as a witness.
16.3 Now to prove their case, plaintiffs have examined plaintiff no. 3 Sh. Mangat Ram Sharma as PW-1 who has deposed on the lines of averments made during pleadings and remaining two plaintiffs have not entered into witness box. Apart from plaintiff no. 3/PW-1, plaintiffs have not examined any other material witness, except the official witnesses from BSES and Delhi Jal Board etc. The plaintiffs have proved the copy of registered sale deed executed by Smt. Mahaveeri Devi in her favour as Ex. PW-1/DA and the registered sale deed executed by Smt. Mahaveeri Devi in favour of plaintiffs as Ex. PW-4/1. It is settled principle that in view of Section 60 (2) of the Registration Act a registered document is presumed to be genuine unless proved contrary. The presumption is rebuttable and the burden of proof to rebut the presumption is upon the person challenging the validity of registered documents. The presumption applies to the correctness of sale deed's recitals.
16.4 Ld. Counsels for the defendants have argued that in the sale deed Ex. PW4/1, it has been recorded that Smt. Mahaveeri Devi has handed over the vacant and peaceful possession of the property to plaintiffs but the possession was always with defendants since the year 2000. It has been further argued that the sale consideration was never paid by plaintiffs as alleged in the sale deed and therefore, the sale deed is not a genuine document.
16.5 On the other hand, it has been argued on behalf of plaintiffs that most of the consideration was paid by plaintiffs to Smt. Mahaveeri Devi CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 29/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:35 +0530 by way of bank transfers and Smt. Mahaveeri Devi was having actual and exclusive possession of one room in the suit property and after execution of sale deed Smt. Mahaveeri Devi, handed over the possession of that room to plaintiffs and she also informed defendants that she had sold the suit property to plaintiffs and now plaintiffs are owners of the suit property and she had also given written intimation to defendants and thus, symbolic possession was handed over to plaintiffs and now, the defendants are refusing to vacant the property as per demanded by plaintiffs, being owner of the property, therefore, plaintiffs have filed the present suit. 16.6 PW-1/plaintiff no. 3 was cross examined on the aspect of the payment of sale consideration and PW-1 deposed that "on 26.06.2016, 28.06.2016 and 03.07.2016, when a sum of Rs. 10,00,000/-, Rs. 10,00,000/- and Rs. 11,00,000/- respectively were paid to Smt. Mahaveeri Devi in cash at that time apart from Smt. Mahaveeri Devi, we three Plaintiffs and one dealer were present. (Again said on the pointing of counsel for Plaintiff that witness initially referred the name husband of Smt. Mahaveeri Devi also then the witness said that since he has already mentioned about the husband of Smt. Mahaveeri Devi so he need not repeat it). Q. Please give up the specific names by whom the Rs. 10,00,000/- on 25.06.2016, Rs.10,00,000/- on 28.06.2016 and Rs.11,00,000/- on 03.07.2016 were paid? Ans. We all three used to collect and to pay the amount to Smt. Mahaveeri Devi, I cannot give the further details.
Can you tell from whose accounts two DDs referred in the sale deed were made? Ans. I do not remember as it is an old matter.
The dealer who was present at the time of the payment was known by us by the name of Mr. Raju."
Thus, PW-1 had not given details of DDs referred in the sale deed on the ground that it is an old matter. However, Court has to consider that CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 30/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:40 +0530 the transaction of sale deed took place in July 2016 and the testimony of witness was recorded on 24.12.2018 and thus, there was a gap of only two years which is not a great gap so as to consider the transaction as an old transaction. Moreover, despite the objections of defendants, plaintiffs have not brought any witness to prove the transaction nor plaintiffs have summoned the relevant record from concerned bank to prove the payment of sale consideration to Smt. Mahaveeri Devi. Plaintiffs have not summoned the dealer in whose presence cash payments were made nor plaintiffs have summoned Smt. Mahaveeri Devi to prove the transaction. Plaintiffs could have taken steps for summoning of Smt. Mahaveeri Devi and it is entirety different issue whether she would have come forward to depose or not but plaintiffs could have at least shown their bonafide. Proof of registration of document does not prove the transaction itself and in the present case, plaintiffs have only proved the proof of registration of sale deed and plaintiffs have not proved the transaction at all. 16.8 Further, PW-1 deposed that one room was in exclusive use of Smt. Mahaveeri Devi and she entrusted its possession to plaintiffs. Further, during cross examination PW-1 deposed that "At the time when we purchased the property the persons who were in possession of the suit property are (1) in one room Mahaviri Devi (2) Jagmer Singh (3) Virender Singh...... ......At present the three persons namely Jagmer Singh, Devender Singh Solanki, Virender Singh are in possession. Vol. Our (plaintffs) lock on one room has been broken. Our lock was broken by them after about 2 to 4 months of our purchase....."
Thus, as per plaintiffs, Smt. Mahaveeri Devi handed over the possession of one room to plaintiffs and defendants had broken the locks of the same after 2-4 months from the purchase of property by defendants.
CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 31/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:47 +0530
Further, PW-1 admitted that plaintiffs had not made any police complaint regarding breaking open of the locks by defendants. It is highly improbable that plaintiffs would not file any complaint after coming to know that defendants had broken the locks of their property, specifically when as per plaintiffs, they had physical possession of only one room and breaking open the locks of that room would be equivalent to dispossessing the plaintiffs.
Further, it is also interesting to note that as per PW-1/Plaintiff no. 3, defendants had broken the locks and the one room under the locks of plaintiffs after about 2-4 months of their purchase but as per factual sequence, put forth by plaintiffs, they purchased the property on 05.07.2016 and suit was filed on 17.08.2016 and there was no gap of 2 months in between the purchase of suit property by the plaintiffs and filing of the suit.
16.9 Further, PW-1 admitted during cross examination that he had not seen the originals of the previous title papers and as per PW-1, plaintiffs had taken only true copies of previous title documents and Smt. Mahaveeri Devi told them that those originals were stolen. In the plaint, plaintiffs averred that "under the aforesaid authority given orally to the defendants by the said Mrs. Mahaviri Devi, the defendants jointly and severally have illegally and unauthorizedly occupied several other portions of the property as well and they were staying therein without any status exept as that of licensees and permissive users. The permission given to the defendants by Shrimati Mahaviri Devi was withdrawn with intimation to all the defendants. After seeling the suit property when Shrimati Mahaviri Devi came to the property alongwith the plaintiffs, the defendants declined to vacate the same and also threatened declined to vacate the same and also threatened CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 32/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:52 +0530 all of them with dire consequences. It was also learnt by the plaintiffs that earlier also the defendants had given such threats to her by openly telling her that if she does not sell the property to them, they will not vacate the same. Thus, under the grab of their unauthorized occupation of a part of the property, they also took away and broke open a box belonging to her and owned by her and thereby taking and removing all the original documents including the previous chain of documents of the suit property and personal valuable belonging to the said Shrimati Mahaviri Devi".
It is quite strange and against ordinary course of human nature that Smt. Mahaveeri Devi told plaintiffs that originals were stolen and also told that defendant had taken away the originals, still Smt. Mahaveeri Devi would not file any complaint nor plaintiffs, who allegedly had paid such a huge consideration, would inquire about the exact date, month or year when the originals were stolen and why no complaint was filed by Smt. Mahaveeri Devi despite having specific knowledge about the thieves. It creates a reasonable doubt over the credibility of the story put forth by plaintiffs.
16.10 Further, PW-1 admitted during cross examination that defendants were residing in the suit property prior to execution of sale deed. PW-1 further deposed that "....I was not told by Mahaviri Devi as to when these three persons came over to the property in dispute......I was not told by Smt. Mahaveeri Devi about the date and month on which date she granted oral permission to defendants to reside in the suit property..."
Thus, as per plaintiffs, defendants were only licensees of previous owner. It is strange that plaintiffs, who were buying an immovable property, would not inquire from the seller since when defendants are in possession of the property and plaintiffs would pay such a huge CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 33/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:58:59 +0530 consideration without due diligence.
16.11 Further, during cross examination, PW-1 deposed that "....Q. Did you ever ask the Defendants before the purchase of the property as to in what capacity they were in the property?
Ans. In my presence, Smt. Mahaveeri Devi told the Defendants that she is selling the property to us so there is no question asking Defendants regarding their possession. Q. Did you ever ask Smt. Mahaveeri Devi and Defendants as to when the possession of the suit property would be given?
Ans. Smt. Mahaveeri Devi told in our presence to the Defendants that since the property has been sold to us, Defendants would deliver the possession, on that the Defendants told that they would give the possession within 2-3 days......."
However, plaintiffs have stated during pleadings that after execution of sale deed, when they visited the suit property with Smt. Mahaveeri Devi, defendants refused to vacate the property and there is no averment in the pleadings or examination in chief that defendants ever agreed to vacate the property.
16.12 Further, PW-1 deposed during cross examination that ".......Mahaveeri Devi told us that she had genuine apprehension that the defendants may misuse her documents and forge and fabricate the same thereby make other false documents to her detriment and to the detriment of the plaintiffs. It was so told even before the execution of the sale deed...."
Thus, as per plaintiffs, even before execution of sale deed Smt. Mahaveeri Devi expressed the apprehension that defendants might have forged documents of suit property. In the given scenario, it is highly improbable that any ordinary prudent person would go ahead with purchase of the suit property.
16.13 Further, admittedly, plaintiffs have never filed any complaint CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 34/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:59:04 +0530
against Smt. Mahaveeri Devi nor filed any case against Smt. Mahaveeri Devi, which is against the ordinary course of human nature that in the given circumstances, plaintiffs would not taken step against the seller.
Thus, on the scale of probabilities, plaintiffs have failed to prove that Smt. Mahaveeri Devi had ever handed over the possession of the suit property to plaintiffs and clause no. 2 of the sale deed Ex. PW-4/1 in favour of plaintiffs is contradictory to factual proposition. (17) (1) The defendants have challenged the execution of sale deed by Smt. Mahaveeri Devi on one more ground that the Smt. Mahaveeri Devi had already sold the suit property to defendant no. 3 on 26.10.2000 and therefore, she had no authority to execute the documents either in her own favour or in favour of plaintiffs. To prove his averments, defendant no. 3 examined himself as DW-3 and he has produced the original documents executed by Mrs. Lovely Goswami in favour of Smt. Mahaveeri Devi (Ex. D3W1/A to Ex. D3W1/H). He has further relied upon the GPA Ex. D3W1/I and agreement to sell Ex. D3W1/J, both dated 26.10.2000, executed by Smt. Mahaveeri Devi in favour of defendant no. 3. The defendant no. 3/D3W1 was cross examined at length and during cross examination, he admitted that he had not applied to MCD for mutation of the property in his favour nor any such application was given to BSES or Delhi Jal Board prior to 2016. He further admitted that he has no knowledge as to who has been shown as registered consumer in electricity connection or water connection, however, he clarified that the tenants are paying the bills.
As far as the issue of electricity bill and water bill are concerned CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 35/60 Dated 23.10.2024Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:59:10 +0530 none of these documents can be a proof of ownership of the property nor it can be a conclusive proof of possession of the property. Nothing has come on record to prove that BSES or Delhi Jal Board or any other department has verified the factum of possession before changing the name of registered consumer in their record. Moreover, the witness from Delhi Jal Board has not brought the entire record and therefore, Court is not going into the dispute over the question as to whose name has been registered as a consumer in the electricity bill or water bill. Though Court is bound to observe that these departments like BSES or Delhi Jal Board have changed the name of registered consumer in a mechanical manner on the basis of documents without any verification.
17.2 Further, during cross examination defendant no. 3 had been shown photographs Ex. D3W1/P1 and Ex. D3W1/P2 showing Smt. Mahaveeri Devi carrying the newspaper Nav Bharat Times and witness admitted that photographs are of the suit property. Perusal of these photographs show that one lady is sitting in the room with newspaper but nothing has been clarified by the plaintiffs why these photographs were put to the witness nor any suggestion has been given to the witness to clarify what was the point purported to be proved by these photographs. Lets assume that plaintiffs have relied upon the photographs to prove the possession of Smt. Mahaveeri Devi in one room of the suit property as averred by the plaintiffs, then these two photographs are not sufficient to prove that Smt. Mahaveeri Devi was having possession of one room of the suit property because she might be in the property being relative of defendants. Moreover, the dates are not visible on the newspaper nor anything relevant CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 36/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:59:16 +0530 with respect to these photographs has been asked from the witness. 17.3 Further, defendant no. 3 /D3W1 admitted during cross examination that he had never written anything to Smt. Mahaveeri Devi to execute registered documents in his favour since 26.10.2000 and he had only made several requests and upon being asked about the reason for not sending written communication to Smt. Mahaveeri Devi, he answered "she used to tell me that her Indian Citizenship will come to an end" . Witness admitted that the documents dated 31.08.2000 (Ex. D3W1/A1 to Ex. D3W1/F) are registered documents executed by Smt. Lovely Goswami in favour of Smt. Mahaveeri Devi while the documents dated 26.10.2000 Ex. D3W1/I and Ex. D3W1/J executed by Smt. Mahaveeri Devi in favour of defendant no. 3 are only notarized documents. He further deposed during cross examination that "I was not filing ITRs in the year 2000. Till date I have never filed ITRs. The documents Ex.D3W1/1 and Ex.D3W1/J were got typed at Tis Hazari. The stamp paper for the same was also purchased from Tis Hazari. The stamp papers were purchased a day prior to 26.10.2000. I purchased both the stamp papers. I do not know who signed in the register of stamp vendor for purchasing the same. The typing work was done by a typist and not by an advocate. The yellow paper which are accompanying both the documents were lying in our house as we had got done Pooja in the house on the day of Dussehra. All the four papers on which the documents Ex.D3W1/I and Ex.D3W1/J were taken by me from my house to Tis Hazari on the same day. The witness named Harpal on both the documents is resident of village -
Makhar, Post office - Jiwana, Tehsil - Badaut, District - Baghpat, UP. The witness name Saranbir is resident of village - Malmajra, Post Office - Jiwana, Tehsil - Badaut, District - Baghpat, UP......
.....Mahaviri Devi had purchased the suit property for a consideration of Rs. 2,98,000/- (Rupees Two Lakhs Ninety Eight Thousand only) in August 2000. As per CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 37/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:59:22 +0530 the documents filed by me the same property was purchased by me from Smt. Mahaviri Devi on 26th October 2000 for a consideration of Rs. 18,00,000/- (Rupees Eighteen Lakhs only). Q. Can you tell the reason for purchasing the property at such a high consideration of sale in a period of less than two months?
Ans. I cannot tell any reason for the same.
It is correct that Mahaviri Devi had made the whole payment of sale consideration by Demand Draft of Bank. It is correct that in the documents filed by me the whole of the consideration has been shown to have been paid in cash and no amount has been paid through Bank. Again said I do not know about the actual sale consideration paid by Smt. Mahaviri Devi to the previous owner but I have stated so on the basis of court record filed by me as Ex. D-3W1/H(Colly) the original of which is in my possession. ......From which bank you had withdrawn the amount of Rs. 18,00,000/ - that has been shown as sale consideration paid to Smt. Mahaviri Devi in the documents filed by you?
Ans. I had withdrawn it from so many banks and had also sold agriculture land. Q. Can you name the banks from which the amount was withdrawn? Ans. Sakari Bank, Branch Binauli, Distt. Baghpat, U.P., State Bank of India, Branch Binauli, Distt. Baghpat, U.P., The name of the other banks I do not remember. Q. Can you produce any documentary evidence showing the withdrawal of the said amount from the banks named by you above?
Ans. The accounts were in the name of my father. Q. Can you tell the details of the property sold by you as stated by you? Ans. I had not sold the property but had the earnings and savings from the agriculture land.
2. From where did you acquire the said agriculture land?
Ans. I got it after the death of my father. I do not remember as to when my father died. I do not even the year of death of my father...."
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Thus, defendant no.3 admitted that on 26.10.2000, it was Diwali and he paid the entire consideration in cash after withdrawing the money from bank and he had not given any intimation to Income tax department as he was not filing the ITR in the year 2000. From the perusal of cross examination of defendant no. 3, it is clear that no major contradiction, contradictory to his averments in his pleadings, has come on record during his testimony.
17.4 Further, to prove the transaction done through documents Ex D3W1/I and D3W1/J i.e. GPA and agreement to sell dt. 26.10.2000, defendant no. 3 has examined Sh. Pradeep Rana as DW-2 who had deposed that defendant no. 1 was residing in his house ( house of DW-2) nearby to the suit property on rent from 1978 and defendant no. 2 was residing in his house on rent nearby the suit property on rent from 1992 and Madan Pal from 1995. Mandan Lal Goswami / husband of Nandrani alongwith his family was residing in the suit property and his son was friend of DW-2 and after demise of son of Nandrani, they shifted to USA and August 2000, she sold the property to Mahaveeri Devi and defendant no. 1 and 2 started residing in the suit property and in October, 2000 nearby Diwali Mahaveeri Devi sold the property to defendant no. 3. DW- 2 further deposed that he was called by Mahaviri Devi to go alongwith her to Tis Hazari court for execution of GPA and agreement to sell in favour of defendant no. 3 and he came to know that on 25.12.2012, Mrs. Lovely Goswami had passed away.
During cross examination, D3W2 admitted that defendant no. 1 is his real mama and he has no proof that defendant no. 2 or Madan Pal was CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 39/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 17:59:33 +0530 residing in his house as a tenant. He also admitted that he was not a witness of any of the document but he reiterated that he went with Smt. Mahaveeri Devi to Tis Hazari Court for execution of the documents as deposed that "....I am not a witness of any document of GPA or agreement to sell in favour of Virender Singh (Vol. But I was present there). I was present in Tis Hazari Court and I was taken by Smt. Mahaviri Devi she did not ask me to sign on the documents. I do not remember as to in which chamber or in which Court the documents were signed. I do not remember even the seat no. of the typing (Vol. There were many typists). I do not know the name of typist....."
Thus, D3W2 had proved that he went to Tis Hazari Court with Smt. Mahaveeri Devi for execution of documents in favour of defendant no. 3. While evaluating the testimony of D3W2, Court has to keep in mind that witness has given deposition in 2020 regarding the transaction which took place 20 years ago in October 2000 and therefore, it is natural for him to forget some details. Moreover, he was not a witness to any transaction but he was taken by Smt. Mahaveeri Devi to Tis Hazari Court, merely to accompany her.
17.5 Further, defendant no. 3 has examined Sh. Harpal Singh as D3W3. He deposed that some day prior to 26.10.2000 defendant no. 3 informed him about his intention to purchase suit property from Smt. Mahaveeri Devi for Rs. 18 lakhs and requested him to accompany him to Tis Hazari Court to sign the documents as a witness. He further deposed that on 26.10.2000, he alongwith defendant no. 3 and one more attesting witness reached to Tis Hazari Court where the documents i.e. Agreement to Sell and GPA Ex. D3W1/I and Ex. D3W1/J were executed in his presence after payment of sale consideration of Rs. 18 lakhs in cash by defendant no. 3 CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 40/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 17:59:40 +0530 to Smt. Mahaveeri Devi in his presence. He also deposed that D3W2/Sh. Pradeep Rana was also present at that time and after execution of the documents and receiving the sale consideration, Smt. Mahaveeri Devi handed over the previous chain of title documents of suit property to defendant no. 3 and also handed over the possession of the property on the spot by handing over the keys of suit property to defendant no. 3.
D3W3 was cross examined at length and during cross examination witness deposed that on 26.10.2010 defendant no. 3 brought him to Tis Hazari Court and when he reached at Tis Hazari Court, defendant no. 2 /Mr. Devender, Smt. Mahaveeri Devi and Sh. Pradeep Rana/D3W2 were already present there and as per instructions of defendant no. 3 documents were prepared by typist. He admitted that his father name and address is not mentioned in the documents Ex. D3W1/J and Ex. D3W1/I and he deposed that he had not mentioned the details as he was asked only to sign and he signed the documents. He admitted that the documents were executed on the day of Diwali. He reiterated that sale consideration was paid in his presence. He also explained the denomination of the currency given as sale consideration to Smt. Mahaveeri Devi. The defence of plaintiffs in the counter claim was put to the witness by way of suggestion and witness denied the same. Thus, despite thorough cross examination the testimony of witness remained intact. Though at the first witness deposed that he did not know what is written in his affidavit, however, from the tone and tenor of his cross examination, it seems that witness might not have understood the question correctly because during cross examination, he has reiterated the deposition made by way of affidavit.
CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 41/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 17:59:46 +0530 17.6 Ld. Counsel for plaintiffs has raised the objections as to the identity
of Sh. Harpal Singh /D3W3 on the ground that the details of father name and address have not been mentioned in the document Ex. D3W1/I and Ex. D3W1/J and therefore, it is not sure whether the person who deposed as Sh. Harpal Singh in the Court is the same person who had signed the documents as a witness. Lets assume that the details of the witness are not mentioned in the abovementioned documents but even then no reason is coming forward why D3W3/Sh. Harpal Singh would give false evidence in the Court. Moreover, he corroborated the testimony of defendant no. 3 and testimony of Sh. Pradeep Rana/D3W2 in entirety and he had duly proved that transaction of payment of sale consideration by defendant no. 3 to Smt. Mahaveeri Devi took place in his presence and that Smt. Mahaveeri Devi agreed to irrevocably sell, convey, transfer her rights in the property to defendant no. 3 and after receiving the sale consideration, she executed the documents in favour of defendant no. 3, handed over previous title chain and possession of the suit property to defendant no. 3. Therefore, the objections of Ld. Counsel for plaintiffs are irrelevant. 17.8 Clearly, defendant no. 3 has been able to establish that on 26.10.2000 Smt. Mahaveeri Devi agreed to sell the suit property to defendant no. 3 and to give irrevocable power of attorney to defendant no. 3 for consideration of Rs. 18 lakhs and in pursuant to same, defendant no.
3, in presence of Sh. Harpal Singh/D3W3, paid Rs. 18 lakhs in cash to Smt. Mahaveeri Devi who was accompanied by Sh. Pradeep Rana/D3W2 and Sh. Harpal Singh/D3W3 signed the documents as a witness and Smt. Mahaveeri Devi handed over previous title docments and possession of CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 42/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.10.23 18:00:05 +0530 the suit property to defendant no. 3.
(18) Ld. Counsel for plaintiffs has vehemently argued that GPA and Agreement to sell in favour of defendant no. 3 are only notarized documents and in view of judgment of Suraj Lamp & Industries Pvt. Ltd. (Supra), these documents are not sufficient to confer any right, title or interest in favour of plaintiff. Further, Ld. Counsel for plaintiffs has argued that the documents in favour of defendant no. 3 are inadmissible in evidence and cannot be relied upon, being unregistered documents and Ld. Counsel for plaintiffs has relied upon Section 17 and 49 of Registration Act and Section 91 of Indian Evidence Act and has also relied upon the judgment of Subraya M N (Supra). It has been further argued by Ld. Counsel for plaintiffs that by way of GPA and Agreement to sell, at maximum defendant no. 3 can claim the right to get the sale deed registered in his favour but defendant no. 3 has not exercised his right well within time and therefore, Smt. Mahaveeri Devi had every right to revoke the alleged authority and to sell the property as per her choice. 18.2 On the other hand, Ld. counsel for the defendant no. 3 has argued that GPA and agreement to sell dated 26.10.2000 were executed by Smt. Mahaveeri Devi for consideration and therefore, these are irrevocable under Section 202 of Contract Act and these documents were executed prior to amendment of Section 53A of Transfer of Property Act 1882 by Act 48 of 2001 w.e.f. 24.09.2001, therefore, these documents need not to be stamped and registered as required by the above mentioned amendment. Further, Ld. counsel for the defendant no. 3 has also relied upon the judgment of Suraj Lamp and has argued that this judgment is not CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 43/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 18:00:09 +0530 retrospective in nature but is prospective in nature. 18.3 Before dealing with this issue, it is important to note down that in the case of Hardip Kaur vs Kailash & Anr.", RFA No. 648/2006 on 18 May, 2012, Hon'ble High Court of Delhi has observed :
".....Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
(i) Vide agreement to sell dated 5th June, 1989, the plaintiff agreed to sell first, second and terrace floors of the suit property to Mohinder Kaur for a total consideration of `4,50,000/-. The plaintiff received the entire sale consideration from Mohinder Kaur, handed over the vacant and peaceful possession to her and simultaneously executed the agreement to sell, receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney all dated 5th June, 1989. The plaintiff declared in the agreement that she is not left with any right, title or interest in the suit property. The plaintiff authorized defendant No.1 to make construction, additions and alterations in the suit property. The General Power of Attorney authorized the attorney to sell the suit property as well as to carry on additions and alterations. Clause 19 of the General Power of Attorney declared it to be irrevocable. The plaintiff also deposed on oath in her affidavit that she would not withdraw or cancel any of the documents under any circumstances. The agreement to sell, receipt, indemnity bond and affidavit are legal, valid and subsisting and have not been cancelled by the plaintiff. The plaintiff has no interest left in the suit property and, therefore, cannot claim the possession or mesne profits in respect of the suit property.CS No. 11261/2016
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2024.10.23 18:00:14 +0530
(ii) The agreement to sell „of itself‟ may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable.............. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-
matter of the agency should be conveyed by the plaintiff to the purchaser.
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(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property.
If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
(vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff‟s remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that the attorney had no interest in the property CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 46/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:27 +0530 which is the subject-matter of the agency.
The interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. The Power of Attorney was executed only to facilitate the execution of the sale deed in favour of the purchaser and, therefore, the attorney was interested in the subject-matter of agency, namely, the suit property.
(viii) The object of giving validity to a Power of Attorney given for consideration even after death of the executants is to ensure that entitlement under such Power of Attorney remains because the same is not a regular or a routine Power of Attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the Power of Attorney.
(ix) The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
(x) All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 47/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:33 +0530 plaintiff in favour of Mohinder Kaur.
(xi) The General Power of Attorney dated 5 th June, 1989 is irrevocable in view of Section 202 of the Contract Act. The plaintiff, therefore, had no right to terminate the said General Power of Attorney. The General Power of Attorney is legal, valid and subsisting. The revocation of the General Power of Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter- claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property. It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession.
Further, in the case titled as "Smt. Shashi Bala Nagpal vs Sh. Rama Kant Shah", RSA No. 13/2015 decided on 2 August, 2016, Hon'ble High Court of Delhi has observed that:
"......respondents/plaintiffs have proved their title to the suit property, inasmuch as, the documents executed in this case give rights to the plaintiffs under Section 53A of the Transfer of Property Act, 1882 containing the doctrine of part performance and Section 202 of the Indian Contract Act, 1872 which provides for irrevocability of a general power of attorney given for consideration. These CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 48/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:38 +0530 documents are documents prior to 24.9.2001 when by Act 48 of the year 2001 provision of Section 53A of the Transfer of Property Act and other related provisions were amended and thereby benefit of the doctrine of part performance after 24.9.2001 could only be taken if the agreement to sell was stamped and registered. The subject documents, therefore, having been executed before 24.9.2001 are valid and confer title upon the respondents/plaintiffs and so held by this Court in the judgment in the case of Shri Ramesh Chand Vs. Suresh Chand and Anr., 188 (2012) DLT 538 and in which judgment the relevant paras of the judgment of the Supreme Court in the case of Suraj Lamps and Industries Pvt.
Ltd. Vs. State of Haryana and Anr., 183 (2011) DLT 1 (SC) have been reproduced which allow transactions which are in the nature of doctrine of part performance under Section 53A of the Transfer of Property Act, and irrevocable general power of attorney falling under Section 202 of the Indian Contract Act, once the documents are executed prior to 24.9.2001. 10(i) Learned counsel for the appellant/defendant very strongly argued that these documents dated 16.6.1994 cannot confer title upon the respondents/plaintiffs because Sh.
Narendra Paul never executed these documents. However, the argument urged on behalf of the appellant/defendant is liable to fail for various reasons.
(ii) Firstly, the appellant/defendant has no locus standi to question the transfer of title through the documents dated 16.6.1994 of Sh. Narendra Paul in favour of the respondents/plaintiffs because it is CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 49/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:43 +0530 only Sh. Narendra Paul who could have questioned the documents. Admittedly, Sh. Narendra Paul has never questioned or challenged execution of the documents dated 16.6.1994 executed by him in favour of the respondents/plaintiffs.
Therefore this argument is liable to be rejected that the respondents/defendant have no title on the ground that the appellant/defendant has no locus standi to question the documents dated 16.6.1994.
(iii) Challenge by the appellant/defendant to the documents dated 16.6.1994 is also liable to fail because self-serving stand in the written statement and in deposition that the documents are not executed by Sh. Narendra Paul in favour of the respondents/plaintiffs would not amount to acceptable evidence for this Court to hold in favour of the appellant/defendant that Sh. Narendra Paul did not execute the documents in favour of the respondents/plaintiffs on 16.6.1994. Mere oral deposition cannot be taken as discharge of onus of proof.
18.4 In the present case, admittedly the GPA and Agreement to sell dated 26.10.2000 are the documents executed prior to 24.09.2001 i.e. prior to amendment in Section 53A of Transfer of Property Act and amendment in other related provisions, thereby establishing that after 24.09.2001 the benefit of doctrine of part performance can be taken only if the agreement to sell was stamped and registered. The defendant no. 3, as discussed above, had already proved the transaction dated 26.10.2000 and the execution of documents (i.e. GPA and Agreement to sell) dated CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 50/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:49 +0530 26.10.2000 and the documents being executed prior to 24.09.2001, are valid documents and confer title upon defendant no. 3. It is also clear that plaintiffs have no locus standi to question the transfer of title through document dated 26.10.2000 executed by Smt. Mahaveeri Devi in favour of defendant no. 3 as it is only Smt. Mahaveeri Devi who could have questioned these documents but she had not done so. Similarly, the challenge of plaintiffs to document dated 26.10.2000 is to be discarded as apart from self serving pleadings and oral deposition, plaintiffs have no other prove that Smt. Mahaveeri Devi had not executed these documents.
(19) During clarifications, plaintiffs have sent an email to the Court that Smt. Mahaveeri Devi have sent an email alongwith copy of her passport showing that at the relevant time period when defendant no. 3 alleged that Smt. Mahaveeri Devi had executed documents in his favour, Smt. Mahaveeri Devi was not even present in India. However, plaintiffs have never filed those documents in the Court nor they have taken any step to prove these averments and after some time it was submitted on behalf of plaintiffs that despite best efforts plaintiffs could not obtain the original documents and they have only scanned copy of documents sent to them through email and therefore, they don't want to take any steps to prove them and appropriate judgment be passed. However, the California ID of Smt. Mahaveeri Devi is on record as part of record Ex. D3W4/5 brought by the summoned witness from BSES and as per the record, the ID, was issued on 14.09.2012 and it expired on 10.05.2022 and therefore, at this stage, there is no surety that Smt. Mahaveeri Devi had fresh ID of California and therefore, no reason is coming forward why Court should CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 51/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:00:53 +0530 even believe that the mail was actually sent by Smt. Mahaveeri Devi.
Further, these arguments on behalf of plaintiffs proved that plaintiffs are still having communication with Smt. Mahaveeri Devi and despite that they have chosen not to summon Smt. Mahaveeri Devi as a witness nor to implead her as a party.
(20) (1) Further, Ld. Counsel for plaintiffs has vehemently argued that the documents i.e. Agreement to sell and GPA dated 26.10.2000 Ex.
D3W1/I and Ex. D3W1/J do not contain the signatures of Smt. Mahaveeri Devi. It has been further argued that defendant no. 3 claimed that these document were executed and signed by Smt. Mahaveeri Devi, however, the signatures which are alleged to be of Smt. Mahaveeri Devi are certainly and undoubtedly not of Smt. Mahaveeri Devi and it may be seen by inter-se comparison of her signatures on the other documents produced on record by defendant no. 3 himself as D3W1. Ld. Counsel for plaintiffs has vehemently argued that Court can compare the signature u/S 73 of Indian Evidence Act and it may be noticed that Smt. Mahaveeri Devi never wrote or signed as Mahaveeri 'Devi and whenever she signed any document, she has never put 'Devi' after writing Mahaveeri at the place where she signed. It has been further argued that it was in fact her surname 'Solanki' which has been suffixed by her after the word 'Mahaveri'a and it is further manifestly clear that the manner and style in which the alleged two documents i.e. Ex. D3W1/I and Ex. D3W1/J have been signed by the signatory were factually never signed by her with such clarify on any other document. On a very casual glance of both the alleged signatures it is more than manifest even to the naked eye that both the said documents CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 52/60 Dated 23.10.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.10.23 18:00:59 +0530 have been 'forged' and 'fabricated' by the defendant in criminal conspiracy with the alleged witnesses whose names have been shown on the said two documents and it has been stressed by Ld. Counsel for plaintiffs that she has been signing as Mahaveeri 'Solanki' and not as Mahaveeri 'Devi'. 20.2 On the other hand, Ld. counsel for the defendant no. 3 submitted that defendant no. 3 has already proved that Smt. Mahaveeri Devi had signed the documents dated 26.10.2000 and moreover, the documents in favour of defendant no. 3 have been signed by Smt. Mahaveeri Devi in Hindi and the documents in favour of plaintiffs have been signed in English and therefore, there can be no comparison about the same. Ld. Counsel for defendant no. 3 has relied upon the judgment of Hon'ble High Court of Delhi in case titled as Harish Vs. State, Crl. M.C. NO. 2372/2013 decided on 15.05.2014.
20.3 Admittedly, defendant no. 3 has not summoned Smt. Mahaveeri Devi to prove her signatures. Admittedly, signatures of Smt. Mahaveeri Devi on documents produced by plaintiffs and produced by defendants are totally different signatures. However, perusal of record shows that some of the documents which are part of record i.e. Ex.D3W4/5 produced by the witness from BSES, contained the signatures of Smt. Mahaveeri Devi. The documents are attested copy of affidavit of Smt. Mahaveeri Devi dated 27.02.2013, attested copy of California ID of Smt. Mahaveeri Devi and attested copy of previous chain of title documents executed by Smt. Lovely Goswami in favour of Smt. Mahaveeri Devi (Ex. D3W4/8). The signatures of Smt. Mahaveeri Devi on these documents are in Hindi and are similar to signatures Smt. Mahaveeri Devi appearing on documents CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 53/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:05 +0530 dated 26.10.2000 executed in favour of defendant no. 3. During PE, plaintiffs have summoned the record from BSES and one bill brought by the witness /PW-2 was in name of Smt. Mahaveeri Devi and plaintiffs have relied upon the same, therefore, there is no reason to doubt over the credibility of record brought by BSES and brought by D3W4/witness from BSES. Thus, there seems a probability that Smt. Mahaveeri Devi might be putting signatures differently in Hindi and in English and she might be doing the same intentionally.
(21) Further, Ld. Counsel for plaintiffs has vehemently argued that on 26.10.2000 it was a Diwali day and while forging the documents defendants might have forgotten the same because it is highly improbable that anyone would go to Court for execution of documents on the day of celebration of such a big festival. It has been further argued that as per DW-3 Sh. Harpal Singh, he came to Delhi from Baghpat, UP without questioning the reason why defendant no. 3 asked him to come to Delhi, but considering that it was a Diwali Day, the story put-forth by defendant no. 3 seems improbable. It has been further argued that the forgery of documents by defendants is apparent from perusal of documents dated 26.10.2000 because these documents seem to be written on yellow papers of some school book of a kid. It has been further argued that it is highly improbable that anyone could execute the documents of purchase of immovable property on such pages.
On the other hand, Ld. counsel for the defendant no. 3 has argued that the transaction was executed on yellow pages which were kept in puja on the day of Dussehra and the papers were considered as auspicious and CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 54/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:10 +0530 therefore, purchase of property being a big event for defendants, the same was done on the auspicious day of Diwali.
As far as this plea is concerned merely because on 26.10.2000 it was a Diwali, it is not a reason to doubt over the credibility of documents because in India, Diwali is considered as a auspicious day and Indian people do enter into big transactions on this day. Moreover, it is no reason to doubt over the transaction when the testimony of D3W1 to D3W3 otherwise seems credible. As far as the use of yellow pages is concerned, the reason given by defendant no. 3 seems probable. Moreover, if the defendants had to forge the documents then why defendant no. 3 would actually take such a huge risk to forge the documents using these papers and had he actually forged the documents, he would have prepared better documents. Therefore, the arguments of Ld. Counsel for plaintiffs are not sustainable.
(22) In view thereof, issue nos. I to IV (in the main suit) are decided in favour of defendants against the plaintiffs.
Issue No. viii(main suit): Whether the suit of the plaintiffs is not maintainable against defendant no. 3 as the defendant no. 3 has purchased the suit property from its erstwhile owner Smt. Mahaveeri Devi on 26.10.2000 by virtue of sale documents i.e. GPA, agreement to sell and purchase, both dated 26.10.2000 after paying the entire sale consideration and has been put in possession of the suit property in pursuance to the agreement to sell and has been possession of the suit property for last more than 16 years? OPD3 issue no. X(main suit): Whether the suit of the plaintiffs is without any CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 55/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:16 +0530 cause of action? OPD issue no. i(counter claim): Whether the counter claimant / Mr. Virender Singh(defendant no. 3) purchased the suit property for sale consideration of Rs. 18,00,000/ from Smt. Mahaveeri Devi vide General Power of Attorney and Agreement to Sell both dated 26.10.2000? (OPP) Issue no. ii (counter claim): Whether the counter claimant / defendant is in legal possession of the suit property since 26.10.2000? (OPP) Issue no. iii (counter claim). Whether Smt. Mahaveeri Devi had no right to execute sale deed dated 05.07.2016 in respect of the suit property in favour of the respondents / plaintiffs? (OPP) issue no. iv (counter claim). Whether the counterclaimant / defendant is entitled to a decree of declaration that sale deed dated 08.06.2016 executed by Smt. Mahaveeri Devi in her favour and sale deed dated 05.07.2016 executed by Smt. Mahaveeri Devi in respect of the suit property in favour of the respondents / plaintiffs is null and void?
The onus to prove these issues was upon the defendants. During findings upon issue no. I to IV (in the main suit ), it has already been held that defendant no. 3 has proved that defendant no. 3 has been able to establish that on 26.10.2000 Smt. Mahaveeri Devi agreed to sell the suit property to defendant no. 3 and to give irrevocable power of attorney to defendant no. 3 for consideration of Rs. 18 lakhs and in pursuant to same, defendant no. 3, in presence of Sh. Harpal Singh/D3W3, paid Rs. 18 lakhs in cash to Smt. Mahaveeri Devi who was accompanied by Sh. Pradeep Rana/D3W2 and Sh. Harpal Singh/D3W3 signed the documents as a witness and Smt. Mahaveeri Devi handed over previous title documents CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 56/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:22 +0530 and possession of the suit property to defendant no. 3.
Further it is also observed that the documents dated 26.10.2000, being executed prior to 24.09.2001 are valid documents and confer title upon defendant no. 3 and plaintiffs have no locus standi to question the transfer of title through documents dated 26.02.2000 executed by Smt. Mahaveeri Devi in favour of defendant no. 3. In view thereof, issue no. VIII and X ( in the main suit) and issue no. I to V (in the counter claim) are decided in favour of defendant no. 3 /Counter claimant against the plaintiffs/non-counter claimants.
(23) Issue no. IX: Whether the suit of the plaintiffs is barred by limitation? OPD3 Ld. Counsel for defendant no. 3 has not pressed upon this issue during arguments, therefore, this issue is dismissed being not pressed upon.
(24) Issue No. V(main suit): Whether the suit of the plaintiffs is a collusive suit between the plaintiffs and the defendant no. 3? OPD1 Issue no. VI(main suit):Whether the suit of the plaintiffs is barred in view of Section 50 of the Delhi Rent Control Act? OPD1 Issue no. VII(main suit): Whether the defendant no. 1 is in possession of the suit property since August 2000 as a tenant under Smt. Mahaveeri Devi and thereafter since October 2000 under defendant no. 3? OPD1 The onus to prove these issues were upon defendant no. 1 and 2.
Both the defendant nos. 1 and 2 have taken plea that they have been in possession of property since August 2000 under the tenancy of Smt. Mahaveeri Devi and thereafter since October 2000 under the tenancy of CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 57/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:27 +0530 defendant no. 3 and rent being below the amount of Rs. 3500/-, the tenancy is protected tenancy under Section 50 of Delhi Rent Control Act. Further, defendant no. 1 and 2 have taken plea that there is collusion between the plaintiffs and defendant no. 3.
On the other hand, Ld. Counsel for plaintiffs have opposed the same on the ground that defendant no. 1 and 2 are claiming themselves to be tenants of the property and therefore, they don't have any right or authority to challenge the ownership or authority of Smt. Mahaveeri Devi and once Smt. Mahaveeri Devi sold the property to plaintiffs, plaintiffs became owners of the property and defendant no. 1 and 2 are under legal liability to vacate the property as per demand of plaintiffs. It has been further argued that there is a collusion between defendants and their real brothers.
Arguments heard. Record perused.
To prove these issues, defendant no. 2 entered into witness box and has deposed on the lines of averments made during pleadings that he was tenant of Smt. Mahaveeri Devi since August 2000 and since October 2000, he is tenant under defendant no. 3 and he is paying rent of Rs. 2000/- per month to defendant no. 3. He has also relied upon one telephone bill in the name of defendant no. 1. Testimony of defendant no. 2 has remained unrebutted and despite thorough cross examination no contradiction has come on record. Defendant no. 1 has opted not to enter into witness box. Defendant no. 1 and 2 have not examined any other witness. Admittedly, there is no documentary proof to prove that defendant no. 1 and 2 were tenants of Smt. Mahavdeeri Devi or they are CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 58/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:33 +0530 tenants of defendant no. 3. Neither Smt. Mahaveeri Devi nor defendant no. 3 has come forward either to admit or deny the claims of defendant no. 1 and 2. The possession of defendants on the suit property is already admitted and dispute is only qua the status of defendant no. 1 and 2 from the point of view to continue in the possession. D3W2/Sh. Pradeep Rana has deposed that when in August 2000, Smt. Nandrani sold the suit property to Smt. Mahaveeri Devi, thereafter, defendants started residing in the property on rent and thereafter, Smt. Mahaveeri sold the property to defendant no. 3. Thus, the testimony of defendant no. 2 has been corroborated by the witness i.e. D3W2. There is nothing on record to raise the doubt over the credibility of this witness. Defendant no. 3 himself has examined Sh. Pradeep Rana. During his testimony, defendant no. 3 chose to remain silence qua the claims of defendant no. 1 and 2. As far as the plea of collusion is concerned during cross examination of defendant no. 2 admitted that he cannot say whether there is collusion between plaintiff and defendant no. 3.
Thus, defendant no. 1 and 2 have failed to prove that there is a collusion between plaintiff and defendant no. 3. Defendant no. 1 and 2 have proved that they are in possession of property since August 2000 as a tenant and since October 2000 they are under tenancy of defendant no. 3 and they are paying rent of Rs. 2000/- to the defendant no. 3. The rent being below the amount of Rs. 3500/-, the tenancy of defendant no. 1 and 2 is protected tenancy as per Section 50 of Delhi Rent Control Act.
Accordingly, issue no. V (in the main suit ) is decided in favour of plaintiffs against the defendant no. 1 and 2. Issue no. VI and VII (in the CS No. 11261/2016 CIS No. DLSE01-005487-2016 (Main Suit) CS No.168/2018 (Counter claim) Page No. 59/60 Dated 23.10.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.10.23 18:01:40 +0530 main suit) are decided in favour of defendant no. 1 and 2 against the plaintiffs.
RELIEF.
(25) In view of aforesaid discussion, the suit of the plaintiffs filed against defendants has been dismissed and the counter claim of defendant no. 3 filed against plaintiffs has been decreed with the decree of Declaration in favour of the Counter Claimant/ defendant no. 3 against the respondents/plaintiffs thereby declaring the sale Deed dated 08.06.2016 executed by Mrs. Mahaveeri Devi in her own favour as well as the Sale Deed Dated 05.07.2016 executed by Mrs. Mahaveeri Devi in favour of plaintiffs in respect of the suit property as null and void and decree of Permanent Injunction against the respondents /plaintiffs thereby restraining them from selling, mortgaging, alienating and from creating any third party interest in the Suit Property.
Parties to bear their own costs. Decree sheet be prepared accordingly.
File be cosigned to record room after due compliance.
Digitally signed by PRABHDEEP PRABHDEEP KAUR
KAUR Date: 2024.10.23
18:01:47 +0530
Typed to the direct dictation and (Prabh Deep Kaur)
announced in the open court DJ-05/South East District
on this 23rd day of October, 2024 Saket Courts, New Delhi.
CS No. 11261/2016
CIS No. DLSE01-005487-2016 (Main Suit)
CS No.168/2018 (Counter claim) Page No. 60/60 Dated 23.10.2024