Delhi District Court
Mohd. Ashraf vs Mohd. Shamshad on 15 May, 2020
IN THE COURT OF BRIJESH KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 134/17
Case CNR No. DLNE010071252016
Mohd. Ashraf,
S/o Mohd. Akhtar,
R/o B-409, Gali No.1,
Subhash Vihar,
North Ghonda,
Delhi-110053.
.....Plaintiff
Versus
Mohd. Shamshad
S/o Mohd. Abbas,
R/o B-73, B-Block,
Madhukunj, Gali Shivaji Road,
North Ghonda, Shahdara,
Delhi-110053.
Also at :-
R/o C-71, Gali No.4,
Mohanpuri, Maujpur, Delhi
..... Defendant
Date of Institution : 31.05.2017
Date of completion of Final Arguments : 07.03.2020
Date of Judgment : 15.05.2020
SUIT FOR SPECIFIC PERFORMANCE, POSSESSION, PERMANENT
INJUNCTION AND MESNE PROFIT/DAMAGES
JUDGMENT
1. In the present suit, it has been stated by the plaintiff that he is the owner of the suit property bearing no.B-73, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-110053, measuring 22 sq. yards, having purchased the same from CS No.134/17 Page 1 of 21 ADJ-01 (NE)/KKD/Delhi its earlier owner Sh. Mohd. Shamshad (defendant) vide G.P.A., Agreement to sell, receipt, Will deed, Affidavit and Possession letter etc., all dated 01.08.2015.
2. It is further stated in the plaint that at the time of execution of the aforesaid documents, the said documents could not be registered due to some complications and the defendant had assured the plaintiff to appear before the Sub Registrar concerned, for execution of the registered sale documents, as and when required.
3. It is further stated in the plaint that the plaintiff had already completed his part of the contract by making full and final payment to the defendant, but, the defendant has failed to perform his part of the contract by not executing the proper registered sale documents of the suit property in favour of the plaintiff. It is further stated that the plaintiff was ready and willing to bear all the expenses of the registration of the documents, but, the defendant has never paid any heed to the requests of the plaintiff.
4. It is further stated that the plaintiff had purchased the suit property from the defendant on 01.08.2015, for a sale consideration of Rs.17,50,000/- and the defendant had also handed over the complete chain of property documents to him and had also given the possession of the suit property to him.
5. It is further stated in the plaint that after handing over the possession of the suit property to the plaintiff, the defendant approached the plaintiff for letting the suit property to him, on rent, on the ground that he was in urgent need of accommodation, and therefore, the plaintiff let out the suit property to the defendant on 05.08.2015 at a monthly rent of CS No.134/17 Page 2 of 21 ADJ-01 (NE)/KKD/Delhi Rs.11,000/-.
6. It is further stated in the plaint that the tenancy was oral and no rent agreement was executed between the parties and the defendant had paid the rent of the tenanted premises to the plaintiff only till the month of September, 2015, and thereafter, he has become chronic defaulter in making the payment of rent as well as the electricity and water charges and has not paid the rent and electricity and water charges since December, 2015.
7. It is further stated that the plaintiff has also paid a sum of Rs.2 lakh, in cash, to the defendant, as the defendant was in urgent need of money and the defendant had also issued a cheque bearing no.000068 for a sum of Rs.2 lakhs, in favour of the plaintiff, but on presentation, the said cheque was also returned back to him dishonoured, and therefore, a case under Section 138 of Negotiable Instrument Act was also filed by the plaintiff against the defendant, wherein, the defendant had already been declared a 'proclaimed offender'.
8. It is further stated in the plaint that the plaintiff is no longer interested in keeping the defendant as his tenant and therefore, vide notice dated 11.12.2015, the tenancy of the defendant was terminated by him.
9. It is further stated in the plaint that the plaintiff had also requested the defendant to pay the arrears of rent amounting to Rs.44,000/- till the month of January, 2016, but despite service of the legal notice, the said arrears have not been paid by the defendant till date.
10. It is further stated in the plaint that after service of the legal notice CS No.134/17 Page 3 of 21 ADJ-01 (NE)/KKD/Delhi dated 11.12.2015, the defendant has stopped to pay the rent and has also stopped picking the telephone call of the plaintiff.
11. It is further stated in the plaint that the tenancy of the defendant had already expired on 11.12.2015, and therefore, the plaintiff is also entitled to recover the damages from him @ Rs.1500/- per day.
12. It is further stated in the plaint that the plaintiff had earlier filed a suit for permanent injunction, recovery of possession, arrears of rent and damages against the defendant in the court of Sh. Rajinder Singh, Ld. JSCC/ASCJ/G. Judge (NE), Karkardooma Courts, Delhi (bearing Suit No.76/16), wherein, the defendant was proceeded 'ex-parte', on 18.03.2017, but, due to some technical defects, the said suit was withdrawn by the plaintiff, with the liberty to file the fresh suit and hence the present suit.
13. The plaintiff has prayed for a decree of specific performance of the agreement dated 01.08.2015 and a decree of possession of the suit property and has also prayed for a decree of permanent injunction against the defendant and his relatives etc. and has also claimed arrears of rent w.e.f. October, 2015 to January, 2016, @ Rs.11,000/- per month and has also claimed mesne profit/damages @ Rs.1500/- per day, w.e.f. the date of filing of the present suit.
Defence of the defendant
14. In his written statement, the defendant has raised several objections and it is stated by him that the plaintiff has forged the documents for the purposes of committing cheating, fraud and forgery and the suit of the plaintiff is not maintainable. It is also stated that the CS No.134/17 Page 4 of 21 ADJ-01 (NE)/KKD/Delhi plaintiff has no locus standi to file the present suit.
15. It is further stated that the plaintiff has filed the present suit on the basis of forged and fabricated documents as the defendant had never sold the suit property to the plaintiff.
16. It is further stated that the defendant had already sold the suit property to Ms. Nadira Khatoon on 22.09.2015, vide Power of Attorney, Agreement to sell, Will, Receipt and Possession Letter etc., all dated 22.09.2015, and therefore, the suit is not maintainable and is liable to be dismissed.
17. In the written statement, the defendant has admitted that in the month of August, 2015, he was in urgent need of money and the plaintiff got his signatures on some blank papers and some stamp papers on the assurance that he will arrange a loan for him from the bank by mortgaging the suit property, with the bank and therefore, he also took a signed blank cheque from the defendant, but, the plaintiff could not arrange the loan for the defendant and had not returned the blank signed papers, despite repeated requests of the defendant. It has been prayed that the suit of the plaintiff may be dismissed with heavy exemplary cost.
18. Replication to the written statement of the defendant is also filed by the plaintiff, wherein, the plaintiff has denied the contents of the written statement and has reiterated and reaffirmed the contents of the plaint.
Issues
19. From the pleadings of the parties, vide order dated 21.04.2018, the following issues were framed as under :-
CS No.134/17 Page 5 of 21 ADJ-01 (NE)/KKD/Delhi
1. Whether the present suit is bad for non-joinder of necessary parties ? OPD
2. Whether the plaintiff is entitled to the decree of specific performance of the agreement to sell dated 01.08.2015, in respect of the property No.B-
73, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-53, as claimed in the plaint ?
OPP
3. Whether the plaintiff is entitled to a decree of possession in respect of the suit property No.B- 73, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-53, as claimed in the plaint ?
OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction against the defendant, as claimed in the plaint ? OPP
5. Whether the plaintiff is entitled to a decree of arrears of rent for a period w.e.f. October, 2015 to January, 2015 @ Rs.11,000/- per month and a decree of mesne profits/damages @ Rs.1,500/-
per day, as claimed in the plaint ? OPP
6. Relief.
Evidence of the parties
20. During the trial, the plaintiff has examined himself as PW-1, whereas, the defendant has examined himself as DW-1.
Arguments of the parties
21. After completion of the trial, final arguments were addressed by Sh. Ajay Kumar Bansal, advocate for the plaintiff and Sh. S.N. Khan, advocate for the defendant.
CS No.134/17 Page 6 of 21 ADJ-01 (NE)/KKD/Delhi
22. It was argued by the learned counsel for the plaintiff that the plaintiff had purchased the suit property from the defendant vide agreement to sell dated 01.08.2015 and no time was fixed for execution of registered sale documents, by the defendant in favour of the plaintiff. He has further argued that the sale documents executed by the defendant in favour of the plaintiff on 01.08.2015 have been duly proved by the plaintiff and the plaintiff has also proved the complete chain of title documents, in respect of the suit property. He has further argued that execution of the documents dated 01.08.2015 is not denied by the defendant and the defendant has failed to establish on record that the documents dated 01.08.2015 are forged and fabricated documents, and therefore, the suit of the plaintiff may be decreed. The learned counsel for the plaintiff has relied upon the judgment of the Hon'ble Supreme Court of India, in case titled as, 'Syed Dastagir v. T.R. Gopal Krishna Setty' reported as VI (1999) SLT 554, in support of his contentions.
23. On the other hand, the learned counsel for the defendant has argued that the suit of the plaintiff is hit by the provisions of Section 16(c) of the Specific Relief Act, and therefore, the suit of the plaintiff may be dismissed. The learned counsel for the defendant has relied upon the following judgments, in support of his contentions :-
(i) National Institute of Technology Trust Vs. Official Liquidator, 2012 (174) Comp. Cases 513.
(ii) Sunil Kapoor Vs. Himmat Singh 2010 (167) DLT 806.
(iii) Shriji Tradex (P) Ltd. Vs. Alia 2013(2) AD (Delhi) 689.
(iv) AIR 1969, SC 1316 titled as Raghunath & Ors. Vs. Kedarnath.
(v) 128 (2006) DLT 407 (DB) titled as M.L. Aggarwal Vs. Oriental Bank of Commerce & Ors.
(vi) AIR 2003, Delhi 120 titled as G. Ram Vs. DDA.
CS No.134/17 Page 7 of 21 ADJ-01 (NE)/KKD/Delhi
(vii) Mrs. Vaneeta Khanna and Anr. vs. Mr. Rajiv Gupta and Ors., CS (OS) No.1200/2006.
(viii) Sh. Gela Ram vs. Sh. Brahm Pal & Ors., RSA No.90/06.
(ix) Ved Prakash Kharbanda Vs. Vimal Bindal, reported as 198 (2013) DLT-555.
FINDINGS
24. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the learned counsels for the parties. I have also perused the various judgments cited by the learned counsels for the parties. My findings on the various issues are as under :
Issue No. 1Whether the present suit is bad for non-joinder of necessary parties ? OPD
25. Onus of proof of this issue lies on the defendant and in support of his contentions, the defendant has examined himself as DW-1 and has filed his affidavit Ex.DW1/A, wherein, he has mentioned that he had already sold the suit property to his sister Ms. Nadira Khatoon on 22.09.2015 by executing relevant documents in her favour and possession of the property was also handed over to her and he also handed over the the previous chain of documents to his sister. But the defendant has failed to file the aforesaid original documents, allegedly executed by him, in favour of his sister Ms. Nadira Khatoon, on record. Only the photocopy of the aforesaid alleged documents in favour of his sister Ms. Nadira Khatoon were filed on record by the learned counsel for the defendant on 13.02.2018, but during the trial, the said documents could not be proved in accordance with law as the original of these CS No.134/17 Page 8 of 21 ADJ-01 (NE)/KKD/Delhi documents were never produced before the Court.
26. Furthermore, the testimony of the defendant that he handed over the complete previous chain of title documents to his sister, while handing over the possession of the suit property to his sister, is also contrary to record, as the complete chain of previous title documents were in possession of the plaintiff and during the trial, the plaintiff has also filed the said previous title documents on record. The General Power of Attorney, Agreement for sell, Receipt, Possession letter, Will Deed and affidavit etc., executed by the erstwhile owner of the suit property, Sh. Satya Prakash, in favour of Sh. Mohsin Khan on 03.04.2010 have been proved on record as Ex.PW-1/1 (colly.). The General Power of Attorney, Agreement to sell, Receipt, Possession letter, Will Deed and the affidavit etc. executed by Sh. Mohsin Khan in favour of Smt. Ramwati on 14.07.2010 have been proved on record Ex.PW-1/2 (colly.). The General Power of Attorney, Agreement to sell, Receipt, Possession letter, Will Deed and the affidavit etc. executed by Smt. Ramwati in favour of the defendant Mohd. Shamshad, on 25.02.2012, have been proved on record as Ex.PW-1/3 (colly.).
27. Perusal of the record further shows that during the trial, the plaintiff has also examined himself as PW-1 and has filed his affidavit Ex.PW- 1/A. During his evidence, the plaintiff has also proved the General Power of Attorney, Agreement for sale, Receipt, Possession letter, Will Deed and the affidavit etc. executed by the defendant in his favour on 01.08.2015 as Ex.PW-1/4 (colly.). All these documents were admitted by the defendant at the stage of admission and denial of the documents and during the trial, the defendant has failed to lead any evidence to show that these documents were forged and fabricated by the plaintiff.
CS No.134/17 Page 9 of 21 ADJ-01 (NE)/KKD/Delhi
28. In these circumstance, it is clear that after execution of the documents Ex.PW-1/4 (colly.), in favour of the plaintiff on 01.08.2015, in respect of the suit property, the defendant was left with no right, title or interest in the suit property after 01.08.2015, and therefore, he was not competent to re sell the suit property or to execute any other sale document after 01.08.2015, in favour of any other person. Therefore, by executing fresh sale documents on 22.09.2015, in favour of his sister Ms. Nadira Khatoon, he could have not transferred and right, title or interest in her favour, and therefore, Ms. Nadira Khatoon is neither a proper nor a necessary party to the present proceedings. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether the plaintiff is entitled to the decree of specific performance of the agreement to sell dated 01.08.2015, in respect of the property No.B- 73, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-53, as claimed in the plaint ?
OPP
29. The onus of proof of this issue lies on the plaintiff and in support of his contentions, the plaintiff has examined himself as PW-1 and has filed his affidavit as Ex.PW1/A, wherein, he has reproduced the contents of the plaint. The title documents in favour of the plaintiff, executed by the defendant on 01.08.2015 have been proved on record as Ex.PW-1/4 (colly.). The complete chain of previous title documents are also proved on record, as Ex.PW-1/1 (colly.), Ex.PW-1/2 (colly.) and Ex.PW-1/3 (colly.). The execution of the documents dated 01.08.2015, Ex.PW-1/4 (colly.) has not been denied by the defendant during the trial. However, he has taken the stand that the plaintiff has obtained his signatures on these documents under some misrepresentation of obtaining the loan CS No.134/17 Page 10 of 21 ADJ-01 (NE)/KKD/Delhi from a bank, for him. But, during the trial, the defendant has failed to lead any evidence to prove this fact and he has also failed to establish on record that the documents Ex.PW-1/4 (colly.) were forged and fabricated documents, as alleged by him.
30. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Ved Prakash Kharbanda vs. Vimal Bindal', reported as, '198 (2013) DLT 555', as under :
"19. Section 16(c) of the Specific Relief Act, 1963 19.1 In a suit for specific performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant; and readiness and willingness of the plaintiff to perform his part of the contract.
19.2 Section 16(c) of the Specific Relief Act mandates "readiness" and "willingness" on the part of the plaintiff as a condition precedent to seek specific performance. Section 16
(c) is reproduced hereunder :-
"Section 16. Personal bars to relief.-
Specific performance of a contract cannot be enforced in favour of a person-
xxx xxx xxx
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.- For the purposes of clause (c),-
(i) where contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
19.3 The 'readiness" and "willingness" are two separate issues. The former depends on the availability of requisite funds whereas the latter depends on the intention of the purchaser.
19.4 The "readiness" has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention has to be inferred from the various circumstances on record.
19.5 If there is no availability of funds with the purchaser, he can be non-suited on the ground of non-readiness alone.
CS No.134/17 Page 11 of 21 ADJ-01 (NE)/KKD/Delhi 19.6 If the plaintiff is able to prove the availability of the balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness along.
19.7 When the parties enter into an agreement relating to an immovable property, they amicably agree on the sale consideration, earnest money as well as the payment of the balance sale consideration. If both the parties are ready and willing, they usually complete the transaction within the stipulated time in the following manner :-
19.7.1 The purchaser makes arrangement for the balance sale consideration within the stipulated time. 19.7.2 The purchaser informs the seller about the arrangement having been made.
19.7.3 The purchaser drafts the sale deed and sends the draft sale deed to the seller for approval.
19.7.4 The seller approves the draft sale deed and returns it back to the purchaser.
19.7.5 The purchaser purchases the requisite stamp duty for the sale deed.
19.7.6 The purchaser prepares the sale deed on the requisite stamp papers.
19.7.7 Both the parties fix the date, time and place for payment of balance sale consideration, execution of sale deed, registration of the sale deed and handing over of the possession.
19.7.8 The parties complete the sale transaction on the agreed date, time and place.
19.7.9 In normal parlance, both the parties remain in touch either personally or through the property dealer. 19.8 The problem arises when one of the two parties turn dishonest. However, the party in breach purports to be ready and willing and creates evidence to that effect. At times, both the parties visit the office of Sub-Registrar on the last day of performance for obtaining a receipt of having attended the office of the Sub-Registrar to later on contend that they were ready and willing to perform and were waiting for other party. If the seller is in breach, he creates false evidence of readiness to avoid specific performance by the purchaser and to illegally forfeit the earnest money. On the other hand, if the purchaser is in breach, he creates false evidence of readiness and willingness to file a case of specific performance. 19.9. It is the duty of the Court to find out which party has not performed and is trying to wriggle out.
19.10 The Court has to take into consideration the human probabilities, ordinary course of human conduct and common sense to draw necessary inference. Drawing presumptions is the backbone of the judicial process.
CS No.134/17 Page 12 of 21 ADJ-01 (NE)/KKD/Delhi 19.11 The silence or absence of correspondence by any party may be indicative of his dishonest intention. The dishonest intention of the seller can be inferred where the purchaser repeatedly contacts the seller for providing copies of the title documents or approval of the draft sale deed or fixing time for payment of balance sale consideration or execution/registration of the sale deed but the seller does not respond or avoids contact. On the other hand, the dishonest intention of the purchaser can be inferred where the purchaser does not contact the seller for approval of the sale deed and fixing date, time and place for payment of balance sale consideration and execution/registration of the sale deed and unilaterally visits the office of the Sub-Registrar to prepare a false ground that he was ready and willing to complete the sale. By the time the suit is finally decreed, the purchaser would get the property at the price fixed in the agreement although the prices would have increased manifold. The Court has to minutely examine the conduct of the parties in order to ascertain the truth. The purchaser would not be entitled to a decree merely because he had the sale consideration with him and had visited the office of the Sub-Registrar before the time fixed in the agreement.
19.12 Upon refusal of the seller to complete the sale in terms of the agreement, the purchaser is expected to issue a notice to place on record the refusal on the part of the seller to furnish copies of the documents or giving a response to the draft sale deed or fixing the schedule for execution and registration of sale deed. The purchase can also notify the date and time for visiting the office of the Sub-Registrar along with the proof of the balance sale consideration to the seller.
The purchaser is also expected to immediately file a suit for specific performance. Any delay in this regard may indicate his intention that he was not ready and willing and the Court may refuse to grant specific performance.
19.13 In a rising market, the purchaser makes a profit by the delay. He may tie down a seller by creating false excuses and use the money for buying some other property. If the purchaser is in a property trade, he may tie down several properties and then decide on which one he can make more profit on. These factors have to be taken into consideration by the Court for deciding the 'readiness' and 'willingness'. 19.14 Once a seller has entered into an agreement to sell an immovable property he is looking for the sale consideration within the period stipulated in the agreement. If he does not get the money within the stipulated period, his plan to use the money for whatever purpose he had intended would get frustrated. He may have a plan to buy some other property or for some other purpose. Secondly, the delay in completion of sale also causes injustice to the seller as the property prices CS No.134/17 Page 13 of 21 ADJ-01 (NE)/KKD/Delhi keep on increasing in normal parlance. As such more the delay, the seller may suffer loss due to rise in property price and greater is the profit which the purchaser would derive by trying down a property and not paying the sale consideration within the stipulated period.
19.15 The relevant judgments relating to Section 16 (c) of the Specific Relief Act, 1963 are as under:-
19.15.1 In J.P.Builders v. A.Ramadas Rao, (2011) 1 SCC 429, the Supreme Court explained the distinction between ''readiness'' and ''willingness''. The former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance.
19.15.2 In N.P.Thirugnanam v. Dr. R.Jagan Mohan Rao, (1995) 5 SCC 115, the Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the "readiness" and "willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature.
19.15.3 In R.C. Chandiol v. Chuni Lal Sabharwal, (1970) 3 SCC 140, the Supreme Court held that "readiness" and "willingness" cannot be treated as a straitjacket formula. It has to be determined from the entirely of facts and circumstances relevant to the intention and conduct of the party concerned."
(emphasis supplied by me)
31. When the ratio of the above judgment is applied to the facts and circumstances of the present case and evidence on record, it is observed that the plaintiff has failed to lead any evidence to show his readiness and willingness to get a sale deed executed by the defendant in his favour any point of time, prior to filing of the present suit. No request was made by the plaintiff to the defendant at any point of time, after 01.08.2015, till filing of the previous suit by him, against the defendant, for permanent injunction, recovery of possession, arrears of rent and damages on 28.01.2017 (CS No.76/16). Even in the said suit bearing CS No.76/16, the plaintiff has not claimed any relief of specific CS No.134/17 Page 14 of 21 ADJ-01 (NE)/KKD/Delhi performance of the agreement for sale dated 01.08.2015. A certified copy of the plaint of the suit has been proved on record as Ex.DW-1/PX-
1. Even in the legal notice Ex.PW-1/5 dated 11.12.2015, the plaintiff has not asked the defendant to execute a registered sale deed in his favour, in specific performance of the agreement for sale dated 01.08.2015. Therefore, this issue is decided against the plaintiff.
Issue No.3 Whether the plaintiff is entitled to a decree of possession in respect of the suit property No.B- 73, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-53, as claimed in the plaint ?
OPP
32. The onus of proof of this issue also lies on the plaintiff and in his affidavit Ex.PW-1/A, the plaintiff has categorically stated that he had purchased the suit property from the defendant on 01.08.2015 for a sale consideration of Rs.17,50,000/-. The plaintiff has duly proved the sale documents as Ex.PW-1/4 (colly.). The previous chain of title documents has also been proved on record as Ex.PW-1/1 (colly.), Ex.PW-1/2 (colly.) and Ex.PW-1/3 (colly.).
33. During the trial, the defendant has taken a stand that the documents dated 01.08.2015 Ex.PW-1/4 (colly.) were forged and fabricated documents, but, no evidence has been led by the defendant in this regard to establish on record that these documents were forged and fabricated by the plaintiff. On the contrary, during the stage of admission and denial of the documents, the defendant has admitted his signatures as well as his thumb impressions and his photographs on all these documents.
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34. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Ramesh Chand vs. Suresh Chand & Ors.', reported as, 'MANU/DE/1690/2012, as under : -
"2. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
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9. Learned counsel for the appellant finally laid great stress on paras 18 and 19 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) and which read as under:-
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said "SA/GPA/WILL transactions" may also be used to obtain specific performance or to defend possession under Section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to "SA/GPA/WILL transactions" has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of CS No.134/17 Page 16 of 21 ADJ-01 (NE)/KKD/Delhi attorney to his spouse, son, daughter, brother, sister, or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/WILL transactions" are not intended to apply to such bona fide/genuine transactions.
These paragraphs were relied upon in support of the proposition that by these paras the Supreme Court in fact explained its earlier observations made in paras 12, 13, 14 and 16 of its judgment and that the Supreme Court did not intend to give any rights in immovable property. In other words, the argument was that in spite of paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) the documents being an agreement to sell under Section 53A or a power of attorney coupled with interest or a Will cannot create rights in an immovable property. In my opinion, this argument urged on behalf of the appellant really does not convey any meaning to me inasmuch as the argument, if accepted, would mean that I am ignoring the binding observation/ratio of the Supreme Court given in paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra).
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11. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff 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 appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. 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 CS No.134/17 Page 17 of 21 ADJ-01 (NE)/KKD/Delhi possession thereof. The facts of the present case show that the respondent No. 1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant No. 1/brother. I have already held above that the appellant/defendant No. 1 miserably failed to prove that there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant No. 1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property No. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property No. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal. In view of the above, I do not find any merit in the appeal, which is accordingly dismissed subject to the observations made above that the respondent No. 1/plaintiff will only be entitled to possession of 50% of the suit property which is in possession of the appellant/defendant No. 1, and the rights of respondent No. 2 would remain secure with respect to the 50% share of the suit property which was purchased by the respondent No. 2/defendant No. 2 from the appellant/defendant No. 1. Parties are left to bear their own costs. Trial Court record be sent back.
(emphasis supplied by me)
35. In view of the above pronouncement and the evidence on record, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.4 Whether the plaintiff is entitled to a decree of permanent injunction against the defendant, as claimed in the plaint ? OPP
36. The onus of proof of this issue also lies on the plaintiff and in view of my findings on issue no.1 and 3 as aforesaid, this issue is also decided in favour of the plaintiff and against the defendant.
Issue No.5 Whether the plaintiff is entitled to a decree of arrears of rent for a period w.e.f. October, 2015 to January, 2015 @ Rs.11,000/- per month and a CS No.134/17 Page 18 of 21 ADJ-01 (NE)/KKD/Delhi decree of mesne profits/damages @ Rs.1,500/-
per day, as claimed in the plaint ? OPP
37. The onus of proof of this issue also lies on the plaintiff and in support of his contentions, the plaintiff has mentioned in his affidavit Ex.PW-1/A that the suit premises were let out by him to the defendant on 05.08.2015 at a monthly rent of Rs.11,000/-, excluding electricity and water charges. But, during the trial, the plaintiff has failed to lead any other evidence to show that the suit property was let out by him to the defendant, as alleged by him on 05.08.2015. It is also highly improbable that the plaintiff was in possession of the suit property on 05.08.2015, after purchasing the suit property from the defendant on 01.08.2015. It is the case of the plaintiff that the defendant was the previous owner of the suit property, from whom, he had purchased the suit property for a sale consideration of Rs.17,50,000/- and the sale documents were also executed on 01.08.2015. Therefore, it is highly probable that the defendant has not handed over the possession of the suit property to the plaintiff on 01.08.2015, when the documents Ex.PW-1/4 (colly.) were executed by the defendant in favour of the plaintiff and therefore, he made a request to the plaintiff to let out the suit property to him or permit him to reside in the suit property.
38. Perusal of the record further shows that the plaintiff had failed to lead any other documentary evidence to establish the relationship of landlord and tenant between him and the defendant. Therefore, this court is of the considered opinion that the plaintiff is not entitled to claim the arrears of rent from the defendant for the period w.e.f. October, 2015 to January, 2016 @ Rs.11,000/- per month, as claimed by him. Accordingly, the first part of issue no.4 is decided against the plaintiff.
39. In his affidavit Ex.PW-1/A, the plaintiff has also claimed damages CS No.134/17 Page 19 of 21 ADJ-01 (NE)/KKD/Delhi @ Rs.1,500/- per day from the date of service of the legal notice dated 11.12.2015. The legal notice dated 11.12.2015 have been duly served on the defendant, but, no reply to the said legal notice was given by the defendant.
40. Perusal of the record further shows that after execution of the documents dated 01.08.2015 Ex.PW-1/4 (colly.), the defendant was left with no right, title or interest in the suit property and therefore, this court is of the considered opinion that the plaintiff is entitled to claim mesne profit/damages from the defendant after execution of the said documents dated 01.08.2015.
41 Keeping in view the fact that the plaintiff has claimed arrears of rent @ Rs.11,000/- per month and keeping in view the social status of the parties and the measurement and the location of the suit property, this court is of the considered opinion that the damages/mesne profit @ Rs.11,000/- per month shall be appropriate, in respect of the suit property. Therefore, this part of issue no.5 is decided accordingly in favour of the plaintiff and against the defendant.
Relief
42. In view of my findings on the various issues, as discussed above, the suit of the plaintiff is hereby decreed, partly. A decree for possession, in respect of the suit property bearing no.B-73, measuring 22 sq. yards, B-Block, Village Ghonda Gujran Khadar, Madhukunj, Gali Shivaji Road, North Ghonda, Shahdara, Delhi-110053, is passed in favour of the plaintiff and against the defendant. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant, whereby, the defendant is restrained from creating any third party interest in the CS No.134/17 Page 20 of 21 ADJ-01 (NE)/KKD/Delhi suit property, in any manner whatsoever. A decree for recovery of mesne profit/damages @ Rs.11,000/- per month is also passed in favour of the plaintiff and against the defendant w.e.f. 05.08.2015, till the date of handing over the vacant physical possession of the suit property by the defendant to the plaintiff. The costs of the suit are also awarded in favour of the plaintiff and against the defendant. The decree for recovery of mesne profit/damages w.e.f. 05.08.2015 till date, shall be prepared only after deposition of the required court fees, by the plaintiff.
A decree be drawn accordingly.
File be consigned to record room, after due compliance.
Announced in the open court BRIJESH KUMAR GARG on this 15th Day of May, 2020 Addl. District Judge(NE)-01 Karkardooma Courts, Delhi.
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