Delhi District Court
Sh. Mam Chand vs M/S. Visa Realty Ltd on 7 February, 2020
IN THE COURT OF MS. MEDHA ARYA ,
CIVIL JUDGE, SOUTHWEST, DWARKA COURTS, NEW DELHI.
Civil Suit No. 243/11 ( 426833/2016)
1. Sh. Mam Chand
S/o. Late Sh. Hem Raj
2. Sh. Charan Singh
3. Sh. Bhagwan Singh
Both sons of Late Sh. Rattan Lal
All residents of Village Rajokari, Delhi. ............. Plaintiffs.
VERSUS
M/s. Visa Realty Ltd.,
At VISA House, 8/10, Alipore Road,
Kolkata700027. ......... Defendant.
Date of filing : 29.10.2010
Date of Institution : 30.10.2010
Date of pronouncing judgment : 07.02.2020
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
A BIRD'S EYE VIEW
1. On 02.11.1987, seven sale deeds were allegedly executed in favour of the defendant, by the family members of the plaintiffs herein. Two out of the seven sale deeds have been challenged before this court, and the trial in the two suits have proceeded together. The challenge by way of this suit is to the registered sale deed executed by Hemraj and Prabhu, both sons of Sh Sohan, as sellers, in favour of the defendant.
2. The ground of challenge to the sale deed is this that Sh Hemraj had already expired on 22.07.1976, and could not have executed the impugned sale deed. PLAINTIFF'S VERSION CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 1
3. One Sh. Sohan was the Bhumidar of the land belonging to Khasra No. 2126 admeasuring (618) in Village Rajokari, Delhi. After his death the property was succeeded by his two sons Prabhu and Hemraj in equal shares. Mutation of land record was accordingly carried out in favour of the two sons of Late Sh. Sohan. Thereafter, Sh. Hemraj also expired on 22.7.1976, leaving behind his two sons Mamchand as well as Sh. Rattan Lal. Sh. Mamchand and the two sons of Sh. Rattan Lal namely Sh. Charan Singh and Sh. Bhagwan Singh are the three plaintiffs in the present suit.
4. Between the period January to September 2010, as averred in the plaint, the plaintiffs found out that an impugned sale deed dt. 2.11.1987 has been forged by the defendant. It is the case of the plaintiffs that the impugned sale deed purportedly executed by Sh. Prabhu and Sh. Hemraj on 2.11.1987 is forged and fabricated as Sh. Hemraj had already died on 22.7.1976. The plaint records the averments of the plaintiff that the impugned sale deed as well as mutation obtained by the defendant on the strength of the said sale deed is bad in law. It has been asseverated in the plaint that a third person has forged and fabricated the thumb impressions of Sh Hemraj on the sale deed. It is further asseverated in the plaint that the mutation on the basis of the impugned sale deed was also not brought to the knowledge of the plaintiffs or their predecessorininterest as no notice was served upon them before the sanctioning of the mutation order, and the mutation in favour of defendant in the land records also deserves to be set aside. By way of the present suit, the plaintiffs sought the following reliefs:
"a) Pass a decree of declaration declaring the Sale Deed dated 2.11.1987 in favour of the defendant of 1/2 share of Khasra No. 2126 measuring (39) situated in the revenue Estate of Village Rajokari, Delhi vide Sale deed bearing Regn. No. 8456, Addl. Book No. I, Volume No.5964 pages 147 to 150 as null and void.
b) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendants restraining the defendants their agents, employees, attorneys, assigns etc. from transferring, alienating or creating third party interest in the property in suit bearing No. 2126(39), situated in the revenue Estate of Village CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 2 Rajokari, Delhi.
c) Any other relief."
5. Defendant duly entered appearance upon the service of summons. DEFENDANT'S VERSION:
6. In the amended written statement, the defendant has taken certain preliminary objections. It has been averred in the written statement that the suit of the plaintiffs is barred by virtue of the proviso of Section 17 of the Limitation Act read with Article 59 of the Limitation Act, 1963. It has further been averred that the plaintiffs have failed to satisfy the complete particulars of the fraud purportedly done with respect to the impugned sale deed and therefore, the plaintiffs have failed to comply with provision of Order 6 Rule 6 CPC. It has also been averred in the written statement that the suit of the plaintiffs is barred under section 31 & 34 Specific Relief Act 1963 as well as Section 185 of the Delhi Land Reforms Act, 1955. The defendant has also taken the preliminary objection with regard to the under valuation of the suit for the purpose of pecuniary jurisdiction as well as court fee. It is also the case of the defendant that the suit of the plaintiffs deserves to be dismissed on account of nonjoinder of necessary parties, since the other executants of the impugned sale deed have not been arrayed as parties to the present suit.
7. On merits, it has been pleaded in the written statement that the land with respect to which the impugned sale deed was executed was not the only land owned by Sh. Sohan. In fact, late Sh. Sohan's land holdings were included in the other Khasras namely Khasra No. 2217, 2218, 2125, 2126 and 2142, and the total land comprised in all these Khasras were sold by the successorsin interest of late Sh. Sohan to the defendant on 02.11.1987. It has been averred in the written statement that even in respect to the land comprising the Khasra No. 2126, two sale deeds were executed in favour of the defendant. It has further been averred in the written statement that all the sale deeds executed on the said date were executed for valid consideration. It has been averred in the written statement that the sale deed was presented for registration by plaintiff no.1 Sh. Mamchand, who is also the co executant of other sale deeds wherein his brother Rattan Lal has been described to be the co owner. It is the case of the defendant that the impugned sale deed was validly executed by CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 3 late Sh. Hemraj and Prabhu and duly registered in the name of the defendant. It has been averred that as per provisions of Registration Act, there is a presumption in favour of validity of the documents which have been registered. The defendant has categorically denied the averments of the plaintiff with regard to forgery and has asserted in the written statement that the impugned sale deed is a validly executed conveyance document, on the basis of which the land which is the subject matter of the impugned sale deed was mutated in the name of the defendant, after recording the statement given by Sh. Ramji as the AR of the sellers.
8. It is averred in the written statement that seven sale deeds were executed on 02.11.1987 and if Sh. Hem Raj and Rattan Lal had expired prior to the execution of the sale deeds, it is plaintiff no.1 who is actually guilty of fraud as the sale deed was presented for registration by plaintiff no.1 himself. It has been further averred in the written statement that the mutation order in favour of the defendant was made after a notice was duly served upon the AR of the sellers, whose statement was recorded by the village Patwari prior to sanctioning the mutation.
9. As per the records, land holding comprised in Khasra No. 2142(416) was shown to be sold by plaintiff no.1, Rattan Lal and Prabhu to one Sh. Balbir Singh on 02.11.1987, and the said Sh. Balbir Singh sold the said land to the defendant on the same date i.e. 02.11.1987. This sale deed, the impugned sale deed and other sale deeds executed in favour of the defendant have all been witnessed by Sh. Rampat, who is the resident of same village. It has been averred in the WS that the malafide of plaintiff is reflected from the fact that the sale deed executed in favour of Sh. Balbir has not been challenged by the plaintiffs.
10. Another line of defence which is taken by the defendant is to the effect that the impugned sale deed was executed on the strength of a permission/NOC dt. 28.10.1987 which was incorporated in the sale deed. It has been averred that the sale deed is a composite document, and includes the NOC dt. 28.10.1987, and unless the NOC is set aside, the sale deed alone cannot be set aside by the court.
11. It has been averred in the written statement that the suit of plaintiffs for declaration and injunction is also liable to be dismissed as the possession of the property CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 4 which is the subject matter of the sale deed is with the defendant and the plaintiffs ought to have filed a more comprehensive suit seeking the possession of the property from the defendant.
REPLICATION:
12. Replication to the written statement was filed by the plaintiffs. In the replication, the plaintiffs have reiterated their stand that the impugned sale deed dated 02.11.87 is a forged and fabricated document. It has been averred in the replication that no consideration as mentioned in the impugned sale deed could have been received by the executants of the impugned sale deed as two of the executants of the sale deed namely Sh. Hemraj and Sh. Rattan Lal had expired prior to the execution of the sale deed. It has further been averred that the predecessorininterest of the plaintiffs had never appointed Sh. Ramji as attorney. In the replication, the plaintiffs have denied the execution of any sale deed in favour of Sh. Balbir Singh. The plaintiffs have further denied that the defendant is in possession of the suit property which is the subject matter of the impugned sale deed and have reiterated their case of being in settled possession of the same. The plaintiffs have reiterated and reasserted their case in the replication.
ISSUES:
13. On the basis of the pleadings, the following issues were settled by the Ld. Predecessor of this court vide order dt. 03.11.2015:
1. Whether the suit of the plaintiffs for declaration and permanent injunction is within the limitation? OPP.
2. Whether the plaintiffs are in possession of the suit property? OPP.
3. Whether the suit is barred u/s. 34&31 of Specific Relief Act, 1963? OPD.
4. Whether this court has no jurisdiction in terms of provisions of Section 185 of Delhi Land Reforms Act, 1954? OPD.
5. Whether the suit has been under value by plaintiffs for the purpose of court fees and jurisdiction? OPD.
6. Whether the suit of the plaintiffs is barred on account of nonjoinder of necessary parties?OPD.
7. Whether the sale deed dt. 02.11.1987 was duly executed and validly registered in favour of defendant? OPD.
8. Whether the suit of the plaintiffs is not maintainable for want of necessary particulars in terms of Order 6 R 4 CPC? OPD.
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 5
9. Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP.
10. Whether the plaintiffs are entitled for relief of permanent injunction, as prayed for? OPP.
11. Relief.
14. Thereafter, matter was then fixed for P.E. PLAINTIFF'S EVIDENCE
15. On behalf of plaintiffs, plaintiff no.2 Sh. Charan Singh took the witness stand as PW1. In his evidence by way of affidavit Ex.PW1/A, PW1 deposed on the lines similar to the plaint, and the contents of his testimony are not being reiterated in the interest of brevity. PW1 also relied upon the following documents in his examination in chief:
a. Khatauni Ex.PW1/1b. Death certificate of Hem Raj Ex.PW1/2 c. Sale deed Ex.PW1/3.
PW1 was discharged after being crossexamined at length.
16. Plaintiffs next examined Sh. Mahender Singh as PW2. In his examination in chief conducted on the affidavit bearing Ex.PW2/A, PW2 deposed that he is a permanent resident of the village of the plaintiffs, and has been long acquainted with the plaintiffs and their predecessorininterest. PW2 deposed to the effect that suit property was inherited by the plaintiff no.1 and Sh. Rattan Lal upon the death of Sh. Hemraj on 22.7.1976, and by plaintiffs no.2 and 3 upon the death of Sh. Rattan Lal on 09.01.1987.PW2 also deposed to the effect that neither Sh. Hem Raj nor Sh. Rattan Lal had sold any land under the impugned sale deed dt. 02.11.87 as Sh. Hemraj had already expired on 22.07.1976 and Sh. Rattan Lal on 09.1.1987. PW2 was also crossexamined at length by defendant before being discharged as a witness.
17. Ms. Renu Mann from the office of SubRegistrar (Birth & Death), Najafgarh Zone, SDMC, New Delhi was examined as PW3 by the plaintiffs. In her examination in chief, PW3 deposed that on the basis of the order No. death/9/92/640/18/11/2010/9621014141 dated 07.12.2010 passed by Executive Magistrate, Vasant Vihar and registration fees dt. 03.01.2011, which documents are Ex.PW3/A (Colly) CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 6 (OSR), the Death Registration Certificate bearing No. 4323650 dt. 27.01.2011 was issued in respect of the death of Sh. Hem Raj. PW3 also deposed that as per the record maintained by the office being the original death registration register, Sh. Rattan Singh Yadav had died on 09.01.1987 and his death was registered at Sr. No.2 on 19.1.1987 in the aforementioned register. Copy of the relevant page of register was exhibited as Ex.PW3/B (OSR) (Two pages). PW3 was also crossexamined at length by ld. Counsel for defendant and was discharged thereafter.
18. Plaintiff next examined Sh. Mahender Narain Shukla as PW4. In his examination in chief PW4 deposed that he is working as Purohit in Garh Mukteshwer and it is his work to do the necessary rituals for "Asthi Viserjan" (part of the last rites of Hindu) at Garh Mukteshwer for his clients and maintaining the record of the same. PW4 further deposed that he has brought the record of last 100 to 200 years with him to court. As per the record brought by him to the court on that date, PW4 deposed that Sh. Rattan Lal s/o. Sh. Hem Raj had visited the Garh Mukteshwar on the Vikrami Sanwant 2033 for "Asthi Viserjan" of his father Late Sh. Hem Raj. PW4 further deposed that as per the record available with him one Sh. Ram Mehar S/o. Sh. Mula Ram had visited Garh Mukteshwar for "Asthi Viserjan" of Sh. Rattan Lal on Kartik Sudhi 6 Vikrami Sanwat 2043 i.e. 06.11.1986. PW4 was duly crossexamined and discharged.
19. Plaintiffs next examined Sh. Rajender Kumar, Patwari, Record Room, SDM Office Mehrauli as PW5. PW5 exhibited the original mutation record bearing No. 713/8182 as Ex.PW5/1 and the mutation file bearing No. 868/8889 as Ex.PW5/2. PW5 was cross examined by defendant and discharged. No other witnesses were examined by the plaintiffs and PE was closed vide statement of ld. Counsel for plaintiffs dt. 20.9.2016.
20. The matter was then fixed for D.E. DEFENDANT'S EVIDENCE.
21. As its first witness, defendant examined its AR. Examination in chief of DW1 was conducted on an affidavit bearing Ex.DW1/A. In his examination in chief, DW1 deposed on similar lines to the written statement and also relied upon the following documents:
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 7
1. Original Board Resolution dt. 22.9.2016 Ex.D1/1.
2. Sale deed no. 8454 dt. 2.11.1987 Ex.D1/2(OSR).
3. Sale deed no. 8460 dt. 2.11.1987 Ex.D1/3(OSR).
4. Sale deed no. 8459 dt. 2.11.1987 Ex.D1/4(OSR).
5. Sale deed no. 8455 dt. 2.11.1987 Ex.D1/5(OSR).
6. Sale deed no. 8458 dt. 2.11.1987 Ex.D1/6(OSR).
7. Sale deed no. 8456 dt. 2.11.1987 Ex.D1/7(OSR).
8. Sale deed no. 8461 dt. 2.11.1987 Ex.D1/8(OSR).
9. Registration receipts dt. 2.11.1987 Ex.D1/9, Ex.D1/10 and Ex.D1/11 respectively(OSR).
10. Khatauni is Ex. D1/12 (OSR),
11. Aks Shizra Ex.D1/13 (OSR).
12. Copy of receipts of payments made to the plaintiff as well as to other farmers Ex.D1/14 and Ex.D1/15 to Ex.D1/15A and Ex.D1/16 respectively (OSR).
13. Receipts of payment made to other farmers Ex. D1/17(OSR) and Ex.D1/18(OSR)
14. Khasra Girdawari for the year 199495, 199596, 199697, 199798, 199899, 200001, 200102, 200203, 200304, 200405, 200506, 200607, 200708, 200809, 200910, 2010 11, 201112, 201213, 201314 and 201415 Ex.D1/21 to Ex. D1/40 and relevant entries are marked at point A respectively (OSR).
15. Copy of Khasra Girdawari for the year 199091, 199394 Mark X and Y.
16. Consolidation pass book Ex.D1/41(OSR).
17. Photographs Mark Z1, Z2 and Z3 respectively.
18. Copy of balance sheet dt. 31.3.1988, Audit of accounts dt. 3.9.1988, balance sheet dt. 31.3.1989, 31.3.1990, 31.3.1991, form no.10CCAC dt. 2.8.1991, audit account for the year 31.3.1991, balance sheet dt. 31.3.1994 and balance sheet dt. 31.3.1995 collectively Ex.D 1/45 (OSR).
DW1 was crossexamined at length by the plaintiffs and discharged thereafter.
22. Defendant next examined its employee Sh. Yogesh Kumar Aggarwal as DW2. In his examination in chief DW2 tendered his evidence by way of affidavit Ex.DW2/A. DW2 CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 8 deposed therein that he had been looking after the agricultural land owned by defendant company as upto 2005, when his tenure ended. He further deposed that there was no hindrance whatsoever with respect to the possession of the defendant company over the suit land during his entire tenure. DW2 was crossexamined and discharged.
23. Defendant company next examined one Sh. Vijay as DW3. In his examination in chief conducted on the affidavit Ex.DW3/A, DW3 deposed that he had not deputed by Sh. Yogesh Kumar Aggarwal, who had testified as DW2 to take care of the agricultural land belonging to the defendant company. DW3 deposed that while he was deputing to take care of agricultural land owned by the defendant company, he was also doing farming activities of the agricultural land wherein two borewells had been constructed. DW3 further deposed to the effect that he was residing in one of the room located in the inside the agricultural land during the period 19901997. DW3 further deposed that there have been no dispute with respect to the possession of the defendant company of the agricultural land owned by the said company during his tenure. DW3 was crossexamined and discharged.
24. One Sh. Ram Chandra, also the employee of the defendant company was examined as DW4. In his examination in chief conducted on the affidavit Ex. DW4/A, DW4 deposed in similar lines to DW3. DW4 deposed to the effect that he was working as caretaker of the land belonging to the defendant company, after he joined the defendant company in September 1997. DW4 deposed to the effect that when he first visited the agricultural land belonging to the defendant company, the entire land was bounded by a boundary wall and out rooms and the building was also constructed inside the agricultural land. DW4 also deposed to the effect that he was doing farming activities on the agricultural land during the period he was taking care of the same and said land contained two bore wells. DW4 further testified to the effect that during his tenure the plaintiffs tired to trespass in the agricultural land belong to the defendant company and the official of defendant company had made a police complaint dt. 15.1.2013 with respect to the said incident, which is Mark A. DW4 was discharged as a witness after being crossexamined by defendant.
25. Defendant summoned the Record Attendant Sh. Sevajit from the department of CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 9 Delhi Archives, Govt of NCT of Delhi as DW5. In his examination in chief, DW5 exhibited the summoned record pertaining to the sale deed No. 8455, 8456, 8457, 8458, 8454 all dt. 02.11.1987 as DW5/1 to DW5/5(OSR). In his cross examination, DW5 deposed that he has no personal knowledge of the registration of said documents. He accepted as correct the suggestion that as per the documents bearing registration No. 8455 and 8456 they were produced for registration on 02.11.1987. He was discharged as a witness thereafter.
26. Defendant next examined the Patwari Sh. Ram Khilari from the office of SDM, Vasant Vihar, Palika Bhavan, New Delhi as DW6. DW6 in his examination in chief, exhibited the copy of Khatauni bearing Khata No. 167 and 232 as DW6/1(OSR) and DW6/2(OSR). The Khatauni pertaining to the Khata No. 233 was exhibited as Ex.DW6/3. Further, DW6 exhibited Khasra Girdawari for the year 201516 as DW6/4, as per which record Khasra 2125 and 2126 are recorded in the name of M/s VISA Realty Ltd. DW6 also deposed that as per the record of Khatauni for the year 198182, the said property has been mutated in the name of the defendant company since 09.09.1988 and possession of the land has been with the defendant company since then. DW6 was duly crossexamined, re examined and discharged.
27. Sh. Ramji, who as per the case of the defendant had facilitated impugned sale transaction, was examined as DW7 by the defendant. In his examination in chief, DW7 deposed that the sale deeds Ex. DW5/1 and Ex.DW5/2 were executed in his presence at the office of SubRegistrar, Asafali Road, New Delhi. DW7 deposed that the thumb impression of the sale deed are of the sellers in the said sale deeds. DW7 further deposed that payment of the consideration amount in respect of the sale deed was paid to the sellers in the presence of SubRegistrar itself. DW7 also deposed to the effect that on 02.11.1987, apart from the impugned sale deed, various other sale deeds were also executed by the sellers of the impugned sale deed and their family members in favour of the defendant company. DW7 further deposed that one of the witness of impugned sale deed was an advocate and other witness is Rampat, who is the relative of the sellers. DW7 also deposed to the effect that possession of the suit property was given to the defendant company by executant of the impugned sale deed after demarcation which was carried out in the presence of Firoz CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 10 Patwari and 15 to 20 other villagers including the family members of the sellers. DW7 deposed in his examination in chief that defendant company had constructed a boundary wall around the said property after obtaining the possession of the same and the possession of the suit property is with the defendant company from 1987 till date. DW7 deposed to the effect that the documents Ex.DW1/13 and Ex. DW1/17 bear his signatures at point A on each document. DW7 was crossexamined and discharged thereafter.
28. Sh. Kanchan Biswas, Branch Manager in Indian Bank, Russel Street, Kolkata was examined as DW8 by the defendant. The examination in chief of DW8 was conducted over an affidavit Ex. DW8/A. In his affidavit Ex.DW8/A, DW8 has deposed to the effect that the record with respect to the PO/DD/Ch. Nos. 451901 and 45903 dt. 6.10.1987 and PO/DD/Ch. Nos. 341644, 341654 and 341646 dt. 1.09.1987 are not available with the bank as the same have been destroyed as per policy. In his crossexamination, DW8 deposed to the effect that he has no personal knowledge about the transactions pertaining to the record i.e. PO/DD/Ch. Nos. 451901 and 45903 dt. 6.10.1987 and PO/DD/Ch. Nos. 341644, 341654 and 341646 dt. 1.09.1987 and he cannot even confirm if the same were issued by the Indian Bank. DW8 accepted as correct the suggestion that he has not tendered any document pertaining to the destruction of the aforesaid record in his testimony. DW8 was discharged thereafter.
29. No other witnesses were examined by the defendant and matter was then fixed for final arguments.
FINAL ARGUMENTS.
30. The arguments were commenced by ld. Counsel for defendant. Ld. Counsel for defendant argued as follows:
a) That the impugned sale deed is a genuine document and bears the thumb impression of all the sellers. The sale deed has been duly registered in the presence of all the parties, and the receipt of the consideration amount under the sale deed was duly acknowledged by the parties to the deed.
b) It has been argued by ld. Counsel for the defendant that the sale deed was executed only after an NOC was duly obtained by the parties from the Tehsildar in due CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 11 compliance with the Delhi Land (Restrictions on transfer) Act, although the said NOC is not part of the judicial record. That the plaintiff has laid the challenge only to a part of the impugned sale deed dt. 2.11.1987, as the sale deed and NOC is a composite document and the sale deed cannot be set aside unless the NOC is also set aside.
c) Ld. Counsel for the defendant argued that the suit of the plaintiffs is bad for non joinder of necessary parties and the other executants of the sale deed have not been made a party to the suit. This is impermissible in law, as the impugned sale deed pertains to a single piece of land. It was argued by ld. Counsel for defendant that a sale deed cannot be set aside in part.
d) It was argued by ld. Counsel for defendant that the impugned sale deed is the genuine document and the plaintiffs have filed the instant suit only because the prices of real estate have sky rocketed and the plaintiffs have developed the malafide intention of obtaining unlawful gain from the defendant. Seven sale deeds were executed on the same date i.e. 2.11.1987 in favour of the defendant and out of the seven sale deed, four were executed by the same parties in favour of the defendant. Moreover, another sale deed bearing registration no.8458 was executed by the same parties in favour of one Sh. Balbir Singh, but the said document has not been challenged and the plaintiffs have impugned only the sale deed which has been executed in favour of the defendant.
e) It was argued by ld. Counsel for defendant that Sh. Mamchand who is the co executant of the impugned sale deed has filed another suit to impugn another sale deed, but he was not arrayed as a plaintiff in the present suit. Ld. Counsel for defendant argued that the said Sh. Mamchand was present in the court but did not take the witness stand to depose in favour of the case of the plaintiffs, although he is a material witness to the transaction pertaining to the impugned sale deed. Ld. Counsel for defendant argued that an adverse inference should be drawn against the plaintiffs as they have neither impleaded Sh.
Mamchand as a party to the suit, nor have been examined him as a witness to the suit. Ld. Counsel for the defendant further buttressed this argument by pointing out that Sh. Mamchand has challenged another sale deed in another suit in the capacity of the legal heir of the executant of that sale deed, but the plaintiffs deliberately omitted examining him as a CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 12 witness in the instant suit, and because of this fact the best evidence has been concealed by the plaintiffs.
f) Ld. Counsel for the defendant argued that the suit of the plaintiffs is barred by limitation as the plaintiffs have challenged the sale deed dt. 2.11.1987 much beyond the period of three years, although they were always aware of the execution of the sale deed, or at best, should be deemed to be aware of the execution of the sale deed as the same is a registered document. It was argued that the registration of a document is a public notice. Further, Ld. counsel for defendant argued that the sale deed could have been challenged by the plaintiffs either within the period of 12 years from the date of execution of the same, or within three years from the date when the plaintiffs attained the age of majority.
g) It was argued that even if the plaintiffs are able to establish fraud, the interest of the defendant deserves to be protected by virtue of proviso of Section 17 of Limitation Act, 1963, which protects the interest of a bonafide buyer who has paid a valuable consideration.
j) It was argued by ld. Counsel for defendant that the impugned sale deed is a genuine document and the plaintiffs have filed the instant suit only because the prices of real estate have sky rocketed and the plaintiffs have developed a malafide intention of obtaining unlawful gain from the defendant. Seven sale deeds were executed on the same date i.e. 2.11.1987 in favour of the defendant and out of the seven sale deed, four were executed by the same parties in favour of the defendant. Moreover, another sale deed bearing registration no.8458 was executed by the same parties in favour of one Sh. Balbir Singh, but the said document has not been challenged and the plaintiffs have impugned only the sale deed which has been executed in favour of the defendant.
k) It was argued that impugned sale deed was executed on the basis of NOC which was obtained form the Tehsildar in compliance with Delhi Reforms (Restriction of Transfer) Act on 20.10.1987, and the sale deed was executed within 30 days from the date of the NOC i.e. on 02.11.1987.
l) It was argued by ld. Counsel for the defendant that the case of the plaintiffs become suspect in view of the fact that although several sale deeds were executed by Sh. Hemraj on 02.11.1987 and his family , the plainitffs have not challenged all the sale deeds.
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 13 The plaintiffs have taken contradictory stands by not challenging the other sale deeds including the sale deed executed by the same predecessorininterest of the plaintiffs who have executed the impugned sale deed.
m) Ld. Counsel for defendant has argued that the land which is subject matter of the impugned sale deed and is comprised in Khasra No. 2126 has not been demarcated and the shares of the plaintiffs have not been carved out separately. Therefore, the plaintiffs cannot seek the setting aside of part of the sale deed in view of the fact that Sh. Prabhu and Sh Mamchand, who are also coexecutants of the sale deed, have neither challenged the impugned sale deed nor have been impleaded as a party to the present suit.
n) Ld. Counsel for defendant further argued that it has been established from the record that the possession of the suit property is with the defendant and the suit of the plaintiffs in the present form is not maintainable as the plaintiffs have not sought the relief of possession.
o) Ld. Counsel for defendant argued that it can be inferred that the case of the plaintiffs is defective in view of the fact that the plaintiffs have themselves not taken any effort to summon the coexecutants of the impugned sale deed as a witness in the present suit.
p) It was argued by ld. Counsel for the defendant that the suit of the plaintiffs is barred by limitation as the impugned sale deed is a registered document and the plaintiffs are deemed to have knowledge of the execution of the sale deed, and they should have filed this suit within three years of attaining majority. Ld. Counsel for defendant further argued that the plaintiffs had actual knowledge of the impugned sale deed since 1987 itself, since the defendant has been in possession of the suit property from the date of purchase. Ld. counsel for defendant further argued that the plaintiffs has averred in the plaint that he got to know through some property dealers about existence of the impugned sale deed, but the plaintiffs have omitted to mention the name of the property dealers and this averment of the plaintiffs is false. Ld counsel argued that by making this false averment, the plaintiffs have filed the instant suit much beyond the expiry of the limitation.
q) On the point of limitation, ld. Counsel for the defendant argued that the plaintiff CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 14 no.2 and 3 have filed another suit impugning one other sale deed executed between them and the defendant, and Sh. Mamchand who is plaintiff no.1 in the present suit is executed the said sale deed. As a coexecutant of another sale deed executed on the same date, plaintiff no.1 would necessarily have the knowledge of the execution of the instant sale deed as well. The fact that no challenge was made to either of the sale deed within three years of the execution of the same reflects lack of due diligence on the part of the plaintiffs, and this entitles the plaintiffs from the benefit of Section 17 of the Limitation Act, 1963. It was further argued on behalf of the defendant that even if some fraud was committed at the time of execution of the impugned sale deed, the defendant was not guilty of committing the fraud, and instead is a victim of the same, and the interests of the defendant deserves to be protected.
r) It is the case of the plaintiffs that the thumb impression of late Sh. Hemraj and Late Sh. Rattan Lal on the impugned sale deed have been forged by a third party. However, no forensic evidence was led by the plaintiffs in order to prove this.
s) Ld. Counsel for defendant adverted to the payment receipt against the cheques which was given by the defendant to the sellers as per impugned sale deed and argued that if Rattan lal had already expired before the date of execution of the sale deed, the cheques should not have been encashed in his account. It was argued that this fact reflects the lacuna in the case of the plaintiffs.
31. In support of his arguments, ld. Counsel for defendant also placed reliance upon the following judgments:
1. Prem Singh and Ors. v. Birbal and ors. 2006 (5) SCC 353.
2. Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) through LRs and ors. 2014(14) SCC 502.
3. Union of India vs. Ibrahim Uddin and anr 2012 (8) SCC 148.
4. M/s Housing & Urban Development Corporation Ltd. v. M/s. MS Shoes (East) Ltd. & Ors. RSA No. 362/2014 & C.M. No.2349/2016 dated 03.06.2016 Delhi High Court.
5. Snehlata (Through legal heirs) Sai Chanakya Maverick v. Priti Tandon & Anr.
(Counter claim No. 12/2014 dated 11.4.2018 Delhi High Court. CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 15
6. Shri Hari Ram v. Smt. Shanti Devi & Ors. CS(OS) No. 1908/2015 and IA No.13346/2015 dated 05.10.2015 Delhi High Court.
7. Vinay Krishna v. Keshav Chandra and Anr. 1993 Supp. (3) SCC 129.
8. Abhishek Gupta v. Shree Salasar Polyflex Pvt. Ltd. & Ors. CS(OS) No.628/2017Delhi High Court & Manu/DE/0963/2018.
9. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar vs. Chandrdan and ors. (2017) 3 SCC 702.
10. Darshan Singh v. Gurdev Singh 1994 SCC (6) 585.
11. Ram Saran and Anr. v. Smt. Ganga Devi (1973) 2 SCC 60.
12. State of West Bengal vs. The Dalhousie Institute Society (1970) 3 SCC 802.
13. Vidhyadhar v. Manikrao and Ors. 1999 (3) SCC 573.
14. Gopal Krishna v. Priti Bala and ors. AIR 2006 JK 76.
15. Hatti v. Sunder Singh AIR 1971 Supreme Court 2320.
16. Phoolwati v. Ram Dei 2008 (150) DLT 105.
17. Ram Niwas v. Pitamber Singh and Ors. MANU/DE/8544/2007.
18. Subhadara v. Surender Singh & Ors. 229 (2016) DLT 188.
19. Smt. Pushpa Saroha v. Shri Mokhinder Kumar & Ors. 157 (2009) DLT 425.
20. Renu Nagar vs. Anup Singh Khosla and ors. 156 (2009) DLT 723.
21. B.L. Sreedhar and Ors. vs. K.M. Munireddy (Dead) and Ors. 2003 (2) SCC 355.
22. Sopan Sukhdeo Sable & Ors. v. Assitant Charity Commissioner & ors. 2004 (2) SCC
137.
23. Rev Singh v. Rishi Pal & Ors. 182 (2011) DLT 52.
24. Nirmal Singh v. GNCT of Delhi and Ors. MANU/DE/4079/2011.
25. Polymer Papers Ltd. v. Mr. Gurmit Singh and Ors. AIR 2002 Delhi 530.
26. Bimla Devi & Ors. vs. Zile Singh & Ors. 205 (2013) DLT 35.
27. Dilboo (Dead) by Lrs and Ors. vs. Dhanraji (Dead) and Ors. (2000) 7 SCC 702.
28. Kalidindi Venkata Subbaraju and Ors. vs. Chintalapati Subbaraju and Ors. (1968) 2 CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 16 SCR 292.
29. Om Prakash Sharma Vs. Rajendra Prasad Shewda and ors. (2015) 15 SCC 556.
30. Shri Ram and Anr. vs. 1st Addl. Judge and Ors. (2001) 3 SCC 24.
31. P.T. Munichikkanna Reddy & Ors. vs. Revamma and ors. (2007) 6 SCC 59.
32. Mulani vs. Maula Bakhsh (1924) ILR 46 All 260.
33. Smt. Razia Begum vs. Delhi Development Authority & ors. 2014 (215) DLT 290.
34. Minu Chibber & Ors. vs. Lt. Col(Retd.) S.S. Chibber 2014 (9) AD (Delhi) 289.
35. Harbhajan Singh vs. Kuldeep Singh and ors. 237 (2017) DLT 640.
36. Sardar Gurbaksh Singh vs. Gurdial Singh (1927) 29 BOMLR 1392.
37. Ram Niwas (Dead) Through Lrs vs. Bano and Ors. (2000) 6 SCC 685
38. Khatri Hotel Private Limited and Ors. vs. Union of India (UOI) and Ors. (2011) 9 SCC 126.
39. N.V. Srinivasa Murthy and ors. vs. Mariyamma (Dead) by Proposed Lrs and Ors. (2005) 5 SCC 548.
40. J.D. Jain and Ors. vs. Sharma Associates and Ors. 167(2010) DLT 766.
41. Sidramappa vs. Rajashetty and Ors. (1970) 1 SCC 186.
42. Deva Ram and Ors. vs. Ishwar Chand and Ors. (1995) 6 SCC 733.
43. Jagmohan Behl Vs. State Bank of India 238 (2017) DLT 228.
44. Santosh Kumar Jain and Ors. vs. Bahadur Singh Jain and Ors. MANU/DE/0156/1982.
45. Gaon Sabha and anr. vs. Nathi and ors. (2004) 12 SCC 555.
46. ASEA Brown Boveri Ltd. vs. Industrial Finance Corporation of India and ors. (2004) 12 SCC 570.
47. Krishan Gupta vs. Hari Shanar & Anr. 2008 (102) DRJ 84(DB).
48. Hira Singh vs. Smt. Sahini and Ors. AIR 1987 Delhi 168.
49. M/s. Indraprastha Ict and Cold Storage Ltd. New Delhi vs. The Union of India and Ors. AIR 1987 Delhi 171.
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 17
50. Usha Gupta vs. Subash Chand Tyagi 2012 (127) DRJ 27.
51. Ramti Devi vs. Union of India (1995)1 SCC 198.
52. Shri Bhagwan vs. Gaon Sabha of Village Nasirpur & Anr. 180(2011) DLT 75.
53. Sudershan Singh vs. Ravinder Uppal & Ors. 180 (2011) DLT 78.
54. Gulshan v. Govt of NCT of Delhi 2008(2) D (Delhi) 225.
55. Bimla Devi vs. Financial Commissioner, 2003(106) DLT 650.
56. Ram Singh vs. Union of India. 2001(94) DLT 788.
57. Aniruddha Dutta vs. Bhawani Shankar Basu 2012(127) DRJ 70.
58. Jaswant Singh v. Surinder Kaur Kohli 2009 (159) DLT 517.
32. Per contra, ld counsel for the plaintiffs argued as follows:
a) That on the basis of the death certificate, it has been established from the record that Sh. Hemraj and Sh. Rattan Lal had expired before the execution of the sale deed, and therefore, the same deed is liable to be set aside.
b) With respect to objections taken by the defendant regarding the maintainability of the present suit in view of Section 185 Delhi Land Reforms Act, it was argued that the revenue court has no jurisdiction to declare a sale deed to be null and void and the plaintiffs have rightly filed the suit before the Civil Court.
c) On the aspect of limitation, ld. Counsel for plaintiffs argued that there can be no bar of limitation to challenge documents which are null and void.
d) It was argued by ld. Counsel for plaintiffs that even if it is presumed that the possession of the property which is the subject matter of the impugned sale deed is with the defendant, the suit of the plaintiffs for injunction and declaration is still maintainable as this court could not have granted the reliefs of possession and partition to the plaintiffs, in view of the specific bar contained in Delhi Reforms Act.
e) Ld. Counsel for plaintiffs argued that the entire case of the defendant is based upon the mutation entries in favour of the defendant but it is well settled position of law that the mutation entries do not confer or create title.
f) Ld. Counsel for plaintiffs argued that the instant suit has been rightly valued, as CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 18 the plaintiffs are in possession of the suit property. Ld. Counsel for plaintiffs placed reliance on the judgment of Hon'ble Supreme court of India titled Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. 2010) 12 SCC 112:AIR 2010 SC 2807
33. Written arguments were also filed on behalf of the plaintiffs, in which the plaintiffs have also relied upon several judgments
1) Saradamani Kandappan vs. S. Rajalakshmi and ors. 2011 AIR (SCW) 4092.
2) Suraj Bhan & ors. vs. Financial Commissioner & Ors., 2007(6) JT 152: 2007(6) SCC
186.
3) Ashok Kumar & ors. vs. Munni Devi & Ors. 188(2012) DLT 589.
4) Ms. Kamala Devi Vs. Mrs. Kususm and Anr. CRP NO. 82/2008 dt. 14.7.2008.
34. I have perused the record meticulously in the light of the evidence and rival arguments led by the parties. Considered. The relevant judgments have been discussed by me at appropriate stages. My issuewise findings are as hereunder:
ISSUE NO. 1:
Whether the suit of the plaintiffs for declaration and permanent injunction is within the limitation? OPP.
35. The onus qua this issue was placed upon the plaintiff. In order to discharge this issue, the plaintiff no.2 deposing as PW1, testified in his examination in chief that he came to know about the impugned sale deed as well as the consequent mutation order based upon the impugned sale deed in favour of the defendant between the period of January 2010 to September 2010. Thereafter, the instant suit was filed in the year 2010 itself and it is within limitation.
36. PW1/plaintiff deposed in his examination in chief that the plaintiffs have been in continuous possession of the suit property, and there was no occasion for them to find out about the mutation in the land revenue records. PW1 further deposed that he found out only in the year 2010 that the impugned sale deed has been forged by the defendant in its favour, and the suit of the plaintiffs is within limitation.
37. The testimony of PW1 does not inspire the confidence of this court, however.
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 19 PW1 himself deposed in his cross examination that plaintiffs are not in possession of the suit property atleast since the year 2010. This is in contradiction to the testimony of PW1 in his examination in chief as well as the version of the plaintiffs that they are in possession of the suit property. Further, while the plaintiffs have averred in the plaint that they obtained knowledge of the impugned sale deed in the year 2010, PW1/plaintiff no.1 deposed in his cross examination on 01.12.2015 that he obtained the certified copy of the land records in 2008 and got knowledge of the impugned sale deed in 2008 itself. The credibility of PW1 as a witness becomes shaky in view of these contradictions.
38. The testimony of PW1 is fraught with such contradictions. While no such averments are contained in the plaint, PW1 deposed in his crossexamination that he came to know about the existence of the impugned sale deed when defendant started encroaching on the land which is the subject matter of the impugned sale deed Ex DW1/7. Later, PW1 admitted that the property is in the possession of the defendant. The suit property has been in cultivation, as per the khatakhatauni records Ex D1/21D1/40, of which certified copies have been placed on record by the defendant. The said records are public records as per Section 74 of the Indian Evidence Act,1872, and a presumption of their correctness prevails in law. The plainitffs reside in the same village where the suit property is situated. It does not seem to be probable that they did not come to know for over 23 years that the suit property is being cultivated by another entity.
39. Furthermore, while in the plaint it has been averred that the plaintiffs obtained knowledge of the impugned sale deed between the period January 2010 September 2010, but the plaintiffs have not specified the exact source of their information . After about 23 years from the date of execution of the impugned sale deed, the plaintiffs suddenly became aware of its execution, and no explanation is forthcoming of the source. PW1 also admitted in his cross examination that another piece of land belonging to their family was sold by Sh Mamchand and the plainitffs to one Sh Ramesh Aggarwal in 1997. It seems to be improbable that even though the plaintiffs were transacting with respect to another proeprty belonging to them, they did not have any knowledge to the status of the property which is CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 20 the subject matter of the impugned sale deed.
40. The defendant, on the other hand, has proved on record the land revenue records, as per which the defendant has been in continuous possession of the suit property ever since the purchase of the same by the defendant under the impugned sale deed dated 2.11.1987. The Land records have been mutated in the name of the defendant, and as per the testimony of DW6 who is the village patwari, the mutation took place on 09.09.1988. Further, DW6 also deposed that as per the Khasra Girdawari for the year 20152016 also, the defendant is the recorded bhumidar of the suit property. There rises a presumption that the suit property has been in the possession of the defendant since the date of the mutation itself. DW6 accepted as correct in his cross examination the suggestion that mutation is sanctioned in favour of a party when the transfer of possession takes place. The certified copies of the khasra khatauni records for the period 199091, and from the period 199394 to 201415 (Ex D1/21ExD1/40) have been placed on record by the defendant. There is a presumption of genuineness of these documents. These revenue records are prepared by the patwari, after onspot verification and there is a presumption that the official act was done rightly. As per the records, the defendant has been cultivating the suit property, and the possession of the agricultural land goes with the revenue records. The defendant has established its possession over the suit property, and the plaintiffs would of necessity, have the knowledge of the possession of the defendant since 1987.
41. This court finds itself agreement with the arguments raised by the defendant to the effect that the fact that Sh. Mamchand who is plaintiff no.1 in the present suit, is also a coexecutant of the other sale deed which has been challenged by plaintiff no.2 and 3 in a separate suit which is also pending before this court leads to the inference that the plaintiffs were always aware about the execution of the impugned sale deed. It is inconceivable that Sh. Mamchand, plaintiff no.1, not only opted to not impugn that sale deed but also did not share his knowledge about the execution of the sale deeds with the plaintiffs, more so in the light of the averments of the plaintiff in the present suit to the effect that one of the executants of the sale deed had already expired before the date of its execution. It seems that CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 21 the plaintiffs have deliberately mentioned the said date so as to bring the suit within limitation. This court does not find the version of the plaintiffs to the effect that they did not have the knowledge of the impugned documents uptil the year 2010 to be believable.
42. The plaintiffs have not discharged the onus of proving that the khasragirdawari records are incorrect. They have not placed on record any other documentary evidence to prove their possession even for the period 19872010, and witnesses of the plaintiffs have themselves conceded that after 2010, the possession of the property which is the subject matter of the suit is with the defendant. The plaintiffs in natural course of events, would have attained knowledge that the defendant is asserting claim over the property, and due diligence required that they should have made proper enquiry into the basis of defendant's claim. Law cannot favour the indolent. The argument of the plaintiffs that there is no limitation to challenge null and void documents is contrary to law, as per which a document executed by fraud has to be challenged within three years from the date on which the knowledge of the document was obtained. Accordingly, this issue is decided against the plaintiffs and in favour of the defendant.
ISSUE NO.2.
Whether the plaintiffs are in possession of the suit property? OPP.
43. The onus qua this issue was placed upon the plaintiffs. With respect to this issue, a heavy burden was placed upon the plaintiffs in view of the fact that as per the revenue records, the possession of the suit property is with the defendant. DW6 from the office of SDM, Vasant Vihar also deposed in his crossexamination that the mutation is sanctioned only in cases where the possession is actually transferred in favour of the vendee. He further accepted as correct the suggestion with respect to transfer of possession, there is no entry in the Khatauni but voluntarily said that the main in column 4 in the Khasra Girdawari is recorded pursuant to the sanction of mutation in the records of rights
44. In the plaint, it has been averred that the possession of the suit property is with the plaintiffs. In order of discharge the burden qua this issue, the plaintiffs examined CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 22 plaintiff no.1 as PW1, who deposed in his examination in chief that the plaintiffs have been in possession of the suit property since the year 2010. In his crossexamination, however, PW1 himself deposed that the possession of the suit property is with the defendant since 2010 who has constructed a boundary wall around the same. PW1 also deposed in his cross examination that the possession of the other land in Khasra no.2117, 2118 and 2119, 2125, 2126 and 2142 in village Rajokari is with the defendant since year 2010, although the properties are owned by the plaintiffs.
45. Further, PW2 who claims himself to be associated of the family of the plaintiffs for a long time, also deposed that there was no boundary wall around the suit property prior to the year 2010 and the said boundary wall around the suit property was constructed by the defendant herein.
46. From the testimony of PW1 and PW2, it becomes clear that the possession of the suit property is with the defendant. This inference is supported by the consistent testimonies of defendant's witnesses. DW1, who is the AR of the defendant deposed that the possession of the suit property was taken over by the defendant subsequent to the execution of the sale deed in the year 1980 itself. Not even a single question has been put to DW1 to demolish his testimony in this regard. DW1 also denied the suggestion that the boundary wall around the suit property was raised in the year 2011. Further, a suggestion was put to the defendant that the construction of the boundary wall was carried out by the defendant, albeit in the year 2011. It can be inferred from the suggestion itself that the plaintiffs have admitted that they do not have possession over the suit property. DW3, who was the employee of the defendant in the period 1990 to 1997 deposed that he used to live in the suit property and takecare of the suit property on behalf of the defendant during his entire tenure. The plaintiffs could not demolish the testimony of DW3 in the crossexamination, who remained consistent in his testimony that the entire property purchased by the defendant including the suit property was bounded by the defendant with a wall. DW4, who had been the employee of the defendant company since September 1997 also deposed to the effect that he had been living in the suit property and taking care of the same from the day when he joined the CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 23 employment of the defendant. DW4 has also remained consistent in his testimony to the effect that the possession of the suit property has been with the defendant.
47. It has been established on the record that the possession of the suit property has always been with the defendant, since the date defendant purchased the suit property. Possession of agricultural lands is reflected in the khata khatauni records, which are prepared after onspot verification by the concerned officials, and as per the said records being Ex D1/21Ex D1/40, the defendant is in the possession of the suit property. The plaintiffs have not been able to discharge the onus that the mutation pertaining to the suit property is incorrect and the possession of the property is with the plaintiffs. Accordingly, this issue is decided against the plaintiffs and in favour of the defendant.
ISSUE NO.3.
Whether the suit is barred u/s. 34&31 of Specific Relief Act, 1963? OPD.
48. The onus of this issue was placed upon the defendant. It has been averred in the amended written statement that the suit of the plaintiffs is barred by Section 34 and 31 of the Specific Relief Act, 1963.
49. While adjudicating issue no.2, this court has held that it has been established from the record that the plaintiffs did not have the possession of the suit property at the time when they filed the present suit. Accordingly, it was incumbent upon the plaintiff to seek the relief of possession, which is a consequential relief to the relief of declaration sought by the plaintiffs. As the plaintiffs did not seek the relief of possession, the suit of the plaintiffs is barred by virtue of the proviso of Section 34 of the Specific Relief Act, 1963. At this juncture, this court seeks guidance from the law laid by the Hon'ble High Court of Delhi in the judgment titled Virender Gopal vs. Municipal Corporation of Delhi AIR 2007 Delhi 183, wherein it was held that as the possession of the property with the defendant, the suit of the plaintiff filed for the relief of declaration and injunction, sans the relief of possession, is barred under the proviso to section 34 Specific Relief Act, 1963. Accordingly, this issue is decided in favour of the defendant and against the plaintiffs.
CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 24 ISSUE NO.4 Whether this court has no jurisdiction in terms of provisions of Section 185 of Delhi Land Reforms Act, 1954? OPD.
50. As per the Section 185 of Delhi Land Reforms Act, the cognizance of civil courts to decide any dispute mentioned in column 7 of Schedule 1 of the Act is barred. By virtue of this provision, suit for possession of agricultural land as well as suit for declaration of bhumidari rights cannot be maintained in civil courts.
51. In the case at hand, it has come on record that the plaintiffs are not in possession of the suit property. Plaintiff no.1 while deposing as PW1 has himself admitted that atleast since the year 2010 the possession of the suit property is with the defendant. Further, it has also been established that the name of the defendant is recorded in the land records as the Bhumidar. The land revenue records maintained by the concerned revenue authority have been mutated in the name of the defendant. This court is bound to presume that all official acts have been performed in due course and in accordance with the procedure laid down. Thus recording of the defendant to be in possession of the suit property is sufficient proof of the fact that the defendant has been in possession of the suit property since the date of execution of the impugned sale deed. The effective relief which the plaintiffs seek is the relief of recovery of possession of the suit property, as well as the declaration of their bhumidari rights over the suit property. Accordingly, the plaintiffs should have approached the concerned revenue authorities for obtaining these reliefs. Reliance in this regard can be placed upon the judgment of Hon'ble High Court of Delhi in Smt. Phoolwati and Ors vs. Smt. Ram Dei and Ors. 150(2008) DLT 105. This court also seeks guidance from the law laid down by the Hon'ble Supreme Court of India in Shri Ram and Another vs Ist Addl.Distt. Judge & Ors AIR 2001 SC 1250, wherein it was held as follows:
" On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 25 file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation.There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court,as the sale deed being void has to be ignored for the purpose of giving him relief for declaration and possession."(emphasis supplied.).
52. In view of the above discussion, this issue is decided against the plaintiffs and in favour of the defendant.
ISSUE NO.5.
Whether the suit has been under value by plaintiffs for the purpose of court fees and jurisdiction? OPD.
53. The onus qua this issue was placed upon the defendant, as this issue was framed on the basis of the pleadings of the defendant to the effect that the plaintiffs have filed a defective suit for the purpose of avoiding the payment of appropriate court fee.
54. The instant suit filed by the plaintiffs to seek the declaration against the impugned sale deed executed between the predecessorininterest of the plaintiffs as well as the defendant. Being a third party to the impugned sale deed, the plaintiffs have correctly sought the relief of declaration with respect to the sale deed. However, it has been proved on the record that the plaintiffs did not have the possession of the suit property at the time of filing of the present suit. Accordingly, it was incumbent upon the plaintiffs to seek the relief of declaration with the consequential relief of possession, and value the present suit on the basis of the market value of the suit property. Reliance at this juncture can be placed upon the judgment of Hon'ble Supreme court of India in Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112:AIR 2010 SC 2807, wherein it has been held CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 26 that:
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently, 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If 'B' who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of second Schedule of the Act. But if 'B', a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv) (c) of the Act. Section 7 (iv) (c ) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 27 property calculated in the manner provided for by clause(v) of Section
7."
55. Since the plaintiffs have failed to seek the relief of possession consequential to the relief of declaration, and have not valued the suit as per the requirement of a third party who is not in possession of the suit property, this issue is decided in favour of the defendant and against the plaintiffs. The argument raised by Ld Counsel for the plaintiffs to the effect that possession was not sought by the plaintiffs in the present suit as a civil court is not competent to grant possession of agricultural land appears to be attractive at first blush, but is also liable to be rejected. This argument would have been helpful to the case of the plaintiffs if they had conceded that they are not in possession of the suit property, but are reserving their right to approach the concerned revenue authorities. In the case at hand however, the plaintiffs have pleaded that they were in possession of the suit property in their plaint, but could not prove their possession.
ISSUE NO.6.
Whether the suit of the plaintiffs is barred on account of nonjoinder of necessary parties?OPD.
56. The onus of this issue was placed upon the defendant. It has been averred in the written statement that the impugned sale deed was executed between the defendant as the buyer and Sh. Hemraj and Sh. Prabhu as the sellers. Since the instant suit has been filed by legal heirs of Sh. Hemraj and the other coseller namely Sh Prabhu have not been made a party to the present suit, the suit is bad for misjoinder of necessary parties. This court finds itself in agreement with the defendant. No sale deed can be set aside in part, if it is of a nature that it cannot be fragmented. The impugned sale deed pertains to a single piece of land, which was coowned in 1987, the year to which the impugned sale deed pertains, by Sh. Hemraj and Sh. Prabhu. However Sh. Prabhu has not been made parties to the present suit, either as plaintiff or as proforma defendant. The nonjoinder of Sh Prabhu become more pertinent in view of the fact that PW1 himself deposed in his crossexamination on 01.12.2015 that he enquired from the children of Sh. Prabhu about the impugned sale deed CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 28 and he was informed that their father had sold his share in the suit property. The sale deed cannot be set aside in the absence of the other coseller or his heirs as a party to the present suit. The setting aside of the impugned sale deed would directly effect the interests of the legal heirs of Sh Prabhu, and they should have been impleaded by the plaintiff. The sale deed at hand is impugned on the ground of fraud and impersonation. Such a sale deed cannot be sustained in part, and has to be set aside in its entirety. As such, the leagal heirs of Sh Prabhu should have been impleaded as plaintiffs, or proforma defendants.
56. The suit of the plaintiffs is bad for nonjoinder of necessary parties. Normally, in such a case, the courts should grant an opportunity to the plaintiff to rectify the defect and implead the necessary parties. However, the plaintiffs had full notice about this issue, and still chose to not implead the heirs of the other coexecutant of the impugned sale deed. The suit of the plaintiff is bad for non joinder of necessary parties. This issue is decided in favour of the defendant and against the plaintiffs.
ISSUE NO.7 Whether the sale deed dt. 02.11.1987 was duly executed and validly registered in favour of defendant? OPD.
57. The initial burden of proof, as per Section 101 of the Indian Evidence Act, 1872, to prove that the impugned sale deed was not validly executed is upon the plaintiffs.
58. It is the case of the plaintiffs that the impugned sale deed Ex DW1/7 has been purportedly executed by their predecessorininterest Sh. Hemraj as a coseller on 02.11.1987 in favour of the defendant, but the said Sh. Hemraj had already expired on 22.7.1976. It is the case of the plaintiffs that the impugned sale deed is a forged and fabricated document, having been executed after the demise of one of the alleged cosellers, by forging his thumb impression on the document.
59. The plaintiffs have explained their locus in filing the suit by pleading that upon the death of Sh Hemraj, Mamchand and Rattan lal succeeded to 1/2 share of the suit property held by Sh Hemraj. Upon the death of Sh Rattan lal, plaintiffs no 2 and 3 CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 29 succeeded to the share of Sh Rattan lal. The scheme of intestate succession on the basis of which plaintiffs have pleaded their locus is in accordance with Section 51 of the DLR Act,1954. The defendant has not controverted this.
60. Now, defendant itself relies upon several sale deeds Ex D1/1D1/8 , executed in its favour on the same date. In several of these deeds, including the sale deed Ex D1/5 which is the subject matter of the connected suit between the parties, Sh Rattan Lal and Sh Mamchand are the sellers. The property could have devolved upon the said Rattan Lal and Mamchand only upon the death of their fatherSh Hemraj. During the lifetime of their father, Sh Rattan Lal and Sh Mamchand would have no interest in the property of their father. Accordingly, if the defendant claims to have purchased the land from Rattan Llal and Mamchand, as per Ex DW1/5, it axiomatically leads to the conclusion that defendant was aware of the demise of Sh Hemraj on the date of the execution of the impugned sale deed. The document Ex DW6/1, which is a mutation record, also mentions the demise of Sh Hemraj. This document has been relied upon by the defendant, implies the knowledge of the defendant of the demise of Sh Hemraj on the date of the execution of the impugned sale deed. The defendant cannot claim the benefit of being a bonafide purchaser with respect to the impugned sale deed.
61. The evidence led by the plaintiffs in support of this version also merits examination. The death certificate of Sh Hemraj is Ex PW1/2. The same has been generated, as per the testimony of PW3, upon the order of the executive magistrate. There is a presumption in favour of an official act done rightly, and this court is duty bound to presume that the necessary enquiry was made before the death certificate was issued.
62. PW5, Patwari from the record room of SDM Mehrauli, proved the records Ex PW5/1 which is the mutation file bearing no 713/8182. As per the said records, the property of Sh. Hem Raj had been mutated in the name of his sons Sh Mamchand (Plaintiff no.1 ) and Sh. Rattan Lal (father of Plaintiffs no 2 and 3) in the year 1982 as the legal heirs of Sh Hem Raj, on the basis of the information granted to the revenue authorities about the demise of Sh Hemraj. The said mutation file carries the P1 Form as per which the entire CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 30 land holding Sh. Hemraj was mutated in the name of sons Sh. Hemraj i.e. Sh. Mamchand and Sh. Rattan Lal. This circumstance also establishes the date of death of Sh. Hemraj, as the mutation report is of the year 1982. The report to the village patwari was made by Sh Mamchand and Sh Rattan lal in the year 1982years prior to the alleged execution of the impugned sale deed. The statement made in the usual course of business is of importance is establishing the case of the plaintiffs. Even though this information was given by the Mamchand as well as Rattan Lal, the self serving statement is admissible as the said persons had no reason to present false information to the authorities in the year 1982. The plaintiffs have been able to establish, on a scale of balance of probabilities, that Sh Hemraj had already expired on the date of the execution of the impugned sale deed Ex DW1/7.
63. The case of the plaintiffs further becomes more probable in view of the fact that the sale deed Ex DW1/5 does not, admittedly, bear the signatures of the AR of the defendant. Further, the defendant's case all throughout has been that the sale deed was executed after duly obtaining an NOC in compliance with the provisions of Delhi Lands (Restrictions on Transfer) Act, 1972, and it cannot be set aside unless the NOC is also challenged. However, no such NOC has been proved on record by the defendant.
64. Defendant, to prove the impugned sale deed's validity, also examined Sh. Ramji, as DW7. DW7 is stated to be the facilitator of the transaction between the vendors in the impugned sale deed, and the defendant. In his examination in chief, DW7 deposed that he was present at the time of the execution of the impugned sale deed. However, in his cross examination, DW7 deposed that he doesn't know the names of all the sellers that were present at the time of the execution of the impugned sale deed. DW7 also deposed that he doesn't know the sellers personally. As such, the testimony of DW7 doesn't help to establish the version of the defendant that the sale deed was validly executed in its favour by the predecessorininterest of the plaintiffs. . Further, the defendants have also been unable to prove the payment of consideration amount to the vendors. The receipts Ex D1/14 and Ex D1/16 do not bear the signatures of the sellers. DW8, the branch manager of Indian bank, Russel Street, Kolkata, on which bank allegedly the cheques for payment of consideration to CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 31 the sellers were drawn, deposed in his testimony that the bank has destroyed all the records pertaining to the said cheques. In such a circumstance, the defendant ought to have summoned the bank records of Sh Hem Raj, to prove that the consideration amount was paid to him by way of a cheque, which was duly encashed in his account. However, defendant failed to do so. The defendant has not been able to establish the payment of consideration amount to Sh Hemraj, and also cannot take the benefit of being a "bonafide purchaser for valuable consideration". The defendant does not appear to be a bonafide purchaser also in view of the fact that, as discussed above, it appears to have had knowledge of the demise of Sh Hemraj even at the time of the execution of the impugned sale deed.
65. Further, it has been argued by the defendant that the fact plaintiff no.1 did not step in the witness box to depose that this sale deed was never presented by him for registration is a circumstance against the plaintiffs. Defendant also laid great stress on the fact that out of seven sale deeds, only2 have been challenged by the plaintiff. These arguments are not entirely without merit and point to the fact that the plaintiffs are guilty of suppression of material particulars. However, this alone cannot establish the case of the defendant that the sale deed was validly executed.
66. In view of the aforesaid circumstances, this court is of the considered opinion that the plaintiffs have been able to establish the date of death of Sh. Hemraj to be 22.7.1976 on the scale of preponderance of probabilities. A dead man couldn't have executed a sale deed, and therefore, this issue is decided in favour of the plaintiffs.
ISSUE NO 8 Whether the suit of the plaintiffs is not maintainable for want of necessary particulars in terms of Order 6 R 4 CPC? OPD.
67. The onus qua this issue was placed upon the defendant. The defendant has not addressed any arguments with respect to this issue. Even otherwise, the challenge of the plaintiffs to the sale deed is premised on the fact that the executant of the sale deed was not alive at the date of execution. The plaint does not appear to be wanting in necessary CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 32 particulars. This issue is accordingly decided against the defendant and in favour of the plaintiffs.
ISSUES NO 9 and 10.
Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP.
And Whether the plaintiffs are entitled for relief of permanent injunction, as prayed for? OPP.
68. These issues are taken up together as they are interconnected. The onus qua both these issues was placed upon the plaintiffs.
69. The plaintiffs have proved that Sh Rattan Lal was dead on the date of the execution of the impugned sale deed. However, in view of discussion on issue no.1 (limitation) and issue no. 2 (possession of the plaintiffs), the plaintiffs cannot be held entitled to the relief of declaration. Furthermore, as the relief of declaration has been denied to the plaintiffs, they cannot be held entitled to the consequential relief of permanent injunction either.
70. These issues are accordingly decided against the plaintiffs.
RELIEF.
71. In view of the observations with respect to issue no.1,2,3,4,5,6,9 and 10, the suit of the plaintiff is dismissed. However, parties to bear their own costs.
72. Decree sheet be prepared accordingly.
73. File be consigned to record room after compliance with due formalities.
Digitally signed MEDHA by MEDHA ARYA ANNOUNCED IN THE OPEN (MEDHA ARYA) COURT ON 07.02.2020 ARYA Date: 2020.02.10 15:30:25 CIVIL JUDGE(SW)/DWARKA +0530 COURTS NEW DELHI CS No. 243/2011 (26833/16) Mam Chand & ors. Vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020. Page No. 33