Delhi District Court
Krishan Lal Ahuja Anr vs Rajinder Kumar Ors on 13 December, 2023
Date: 13.12.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010018572015
CS No. 59145/16
In the matter of :-
1. Sh. Krishan Lal Ahuja
S/o Sh. Tuka Ram
R/o 17/1, (1st floor & 2nd Floor),
Manav Kunj, Mukund Pur Extn.-II,
Delhi-110042.
2. Sh. Tushar Ahuja,
S/o Sh. Krishan Lal Ahuja
R/o 17/1, (1st Floor & 2nd Floor),
Manav Kunj, Mukund Pur Extn.-II,
Delhi-110042.
Both also at:-
C/o Tarun Kumar
B-44, Sector-31,
Noida-U.P. -201301. ...... Plaintiffs
Versus
1. Rajinder Kumar
S/o Late Sh. Bishambher Nath Walia
R/o 17/1, (Ground Floor),
Manav Kunj, Mukund Pur Extn.-II,
Delhi-110042.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 1 of 50
Date: 13.12.2023
Also at:-
A-64, Gujranwala Town,
Delhi-110009.
2. Sh. Mukesh Kumar
S/o Sh. Ghanshyam Singh
R/o 17/46, Manav Kunj,
Mukund Pur Extn.-II,
Delhi-110042.
3. Smt. Sheela
W/o Sh. Bhopal Singh
4. Sh. Bhopal Singh @ Rajinder
S/o Sh. Nand Singh @ Nanwa
Both R/o 17/1, (Ground Floor),
Manav Kunj, Mukund Pur Extn.-II,
Delhi-110042.
Both also at:
C-204, Mangol Puri,
Delhi-110083. ........Defendants
Date of Institution 06.07.2015
Date of Final Argument 29.11.2023
Date of pronouncement of judgment 13.12.2023
SUIT FOR SPECIFIC PERFORMANCE, DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
1. The present suit is for specific performance, declaration and permanent injunction.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 2 of 50 Date: 13.12.2023
2. The brief facts of the case as stated by the plaintiff in the plaint are as under:-
2.1 It is stated that the plaintiff no. 2 is the owner of 2 and 3 rd floor with roof rights of the built up property bearing no. 17/1 (admeasuring 80 sq. yards) out of Khasra no. 228/1/1 and property bearing no. 17/1, Gali no. 16, Manav Kunj, Mukundpur extension - II, Delhi-110042, having purchased the same from defendant no. 2 on 23.03.2012 against execution of the relevant sale documents including GPA, Agreement to Sell, Affidavit, Receipt and a Registered Will.
2.2 Plaintiff no. 1 and 2 are the joint owners of the built up property of 1st floor (admeasuring 80 sq. yards) bearing no. bearing no. 17/1, Gali no. 16, Manav Kunj, Mukundpur extension - II, Delhi-110042 having purchased the same from defendant no. 2 for a valid sale consideration on 11.04.2012 against execution of the relevant sale documents including GPA, Agreement to Sell, Affidavit, Receipt and a Registered Will.
2.3 The defendant no. 2 had purchased the aforesaid properties, namely, 1st, 2nd, 3rd Floor with roof rights from the erstwhile owner of the property, namely, defendant no. 1 on 12.08.2011.
2.4 The plaintiff had leased out 1st floor of the property to a tenant, namely, Mr. Amrish Sharma S/o J. P. Sharma vide Lease Deed dated 23.04.2012. The defendant no. 1 was the owner of the ground floor of the said property and the electricity and water was being serviced from the electric connection / meter installed in the room of CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 3 of 50 Date: 13.12.2023 defendant no. 1 at ground floor.
2.5 It was mutually agreed between the plaintiffs and defendant no. 1 that they shall equally share the electric charges till a new electricity connection / meter was installed in the property of plaintiffs. In furtherance of the understanding, defendant no. 2 who was a close associate and friend of defendant no. 1 used to collect the electricity charges from the plaintiffs on behalf of defendant no. 1. However, after the few days, the defendant no. 1 had started harassing the plaintiffs and the tenant inducted by the plaintiff. The defendant no. 1 would lock the front gate leading to the staircase due to which the ingress and egress from the suit property became difficult. The defendant no. 1 would sometime block the drainage pipe which resulted in overflowing and reversal of waste water back into the sewer pipes / toilets, kitchen and rooms etc. The defendant no. 1 had constructed one bathroom and toilet by encroaching upon the public land, thereby creating obstruction and narrowing the passage leading to the staircase of the property of plaintiffs. The defendant no. 1 has gone to the extent of illegally cutting the supply of water and electricity to the 1st and upper floor of the property. The defendant no. 1 would not allow the electrician, plumber etc. to visit the property and has been subjecting the plaintiffs to multiple nuisances.
2.6 Accordingly, the plaintiffs had got the separate electricity and water connections installed for their own floors i.e. 1 st, 2nd and 3rd floor with the intervention of the civil court in Suit no. 432/2012 vide order dated 28.05.2014. However, the nuisance created by defendant CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 4 of 50 Date: 13.12.2023 no. 1 did not stop. Therefore, under the compelling circumstances and with the intervention of defendant no. 2, the plaintiff no. 1 had entered into an Oral Agreement to Sell with the defendant no. 1 for purchase of ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension-II, Delhi-110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin (herein after referred to as 'suit property') for a total sum of Rs. 8,00,000/-. The defendant no. 1 was keen to sell the suit property to plaintiff no. 1 as the suit property is 2 feet below the adjoining street level. The plaintiff no. 1 to buy peace had with much difficulty made a payment of Rs. 4,50,000/- to the defendant no. 1 in cash.
2.7 The plaintiffs on 05.07.2012 had paid a sum of Rs. 1,00,000/- to the defendant no. 2 who collected the same on behalf of defendant no. 1.
On 06.07.2012, the eldest son of plaintiff no. 1, namely, Sh. Tarun Kumar paid a sum of Rs. 2,00,000/- to the defendant no. 2 at his residence at Noida, who received the same on behalf of defendant no. 1. Thereafter, on 07.07.2012, a further sum of Rs. 1,50,000/- was paid by Sh. Vinod Kumar Valecha, son - in - law of plaintiff no. 1 to the defendant no. 2 for and on behalf of defendant no. 1 at his residence at Sector-13, Rohini, Delhi-110085.
2.8 In lieu of the payment made, the defendant no. 1 and 2 had handed over the original property title papers with respect to the suit property between defendant no. 1 and the previous owner, namely, CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 5 of 50 Date: 13.12.2023 Sh. Mehtab Singh S/o Sh. Bharat Singh dated 10.01.2006 along with previous title chain of documents with utility bills etc. dated 16.01.1996. However, the defendant no. 1 did not issue any receipt against the said part payments on the pretext that defendant no. 1 would issue a receipt against full and final payment of the entire sale consideration at the time of execution of the transfer documents. The plaintiffs did not smell a rat as the original title documents were parted by defendant no. 1.
2.9 Thereafter, in August, 2012, the plaintiffs had approached the defendant no. 1 to pay the balance sale consideration of Rs. 3,50,000/- and to execute title documents in favour of the plaintiffs. However, the defendants did not cooperate and defendant no. 1 once again resorted to his old pressure tactics and started creating nuisance. The conduct of defendant no. 1 was aggressive and he had assaulted the plaintiff no. 1 on 10.07.2012. Due to the harassment, Sh. Tarun Kumar S/o plaintiff no. 1 had taken the plaintiffs with him to Noida for their safety. The plaintiffs were always ready and willing to perform their part of the contract.
2.10 Thereafter, the defendant no. 1 had filed a civil suit bearing no.
437/2012 for permanent injunction and declaration against the plaintiffs and defendant no. 2 as co-defendants. In the said case, the defendant no. 1 had sought declaration that the transfer documents executed by defendant no. 2 in favour of plaintiff with regards to 1 st, 2nd and 3rd floor along with roof rights be declared as null and void. It was contented by defendant no. 1 that defendant no. 2 has misused CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 6 of 50 Date: 13.12.2023 the documents signed by defendant no. 1 for securing a loan / mortgage transaction. The said suit was dismissed by the Ld. SCJ- cum-RC, North, Rohini, Delhi vide order dated 07.05.2015.
2.11 It is stated by the plaintiffs that the plaintiffs in the said suit had filed their written statement for defendant no. 1 and 2, in which they have specifically pleaded about the oral Agreement to Sell and part payment of Rs. 4,50,000/- with respect to the ground floor i.e. the suit property. The defendant no. 1 did not file any replication to the WS of plaintiffs and did not give any suggestions / set up a defence, while cross examining the plaintiffs in the said case. Accordingly, by virtue of said non-denial / non-rebuttal of the Agreement to Sell dated 05.07.2012, the defendant no. 1 and 2 herein, have deemed to admit the Agreement to Sell in toto. Despite repeated requests of plaintiffs, the defendant no. 1 has not come forward to fulfill his contractual obligation under the Agreement to Sell dated 05.07.2012. It is stated that the defendant no. 1 and 2 are habitual in trapping other people by using similar modus operandi as could be seen from another litigation titled as "Rajni Sharma Vs. Rajinder Kumar in Civil Suit bearing no. 569/2008".
2.12 The defendant no. 1 has repeatedly stated that the defendant no. 1 is in the possession of the suit property. A similar assertion was made by him on 17.12.2014 in Civil Suit no. 437/2012. However, now defendant no. 1 has allowed some third persons / strangers being defendant no. 3 and 4 herein to occupy the suit property. The said occupation of defendant no. 3 and 4 is in breach of the status quo CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 7 of 50 Date: 13.12.2023 order passed by the Ld. SCJ-cum-RC in suit no. 437/2012. The plaintiffs after due diligence, was able to discover a purported rent agreement between the defendant no. 1 and defendant no. 3 and 4 as the same is fabricated upon a manipulated stamp paper, which is established by RTI reply dated 11.11.2014 received by the plaintiff from the O/o Divisional Commissioner, Delhi Treasury. It is stated that defendant no. 3 and 4 cannot claim any right, title or interest of any nature in the suit property due to the pendency of litigations and therefore , the defendant no. 1 along with defendant no. 3 and 4 are bound to hand over the vacant physical possession of the suit property to the plaintiffs. Hence the present suit is filed with the following prayers:-
a) to pass a decree for Specific Performance of the Agreement to Sell entered into between the Plaintiffs and Defendant No.1 along with Defendant No.2 dated 05.07.2012 with respect to the built-up Ground Floor portion of property bearing No.17/1, Gali No. 16, Manav Kunj, Mukundpur Extn.-II, Delhi-110042, forming part of Khasra No. 228/1/1 land/property admeasuring 80 sq. yds. more particularly shown/described in the Site Plan annexed with the suit/plaint in favour of the Plaintiffs and against the Defendants No.1 & 2 thereby directing them to complete the sale transaction and execute the Sale Deed and all other documents/instrument of title as well as absolutely convey the aforesaid property unto the Plaintiffs as well as deliver the vacant physical possession thereto to the Plaintiffs CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 8 of 50 Date: 13.12.2023 against receipt of the balance sale consideration;
b) in alternative, in case, it is contended and held and/or Hon'ble Court is of the view that a decree for Specific Performance cannot be passed in the facts and circumstances of the case, then the Plaintiffs pray that a decree for recovery of monetary damages which may be assessed by the Hon'ble Court may kindly be passed and/or a decree for recovery of damages to the tune of Rs.8.00 lacs be passed in favour of the Plaintiffs and against the Defendants No.1 & 2 along with interest pendentalite and future @ 18% per annum upto the date of payment with quarterly rest.
c) to grant a decree of Declaration in favour of the Plaintiffs and against the Defendants No.3 & 4 thereby declaring that the said Defendants along with their agents, servants, representatives, successors, assigns, associates and nominees etc. do not have any right, title or interest including any legal right to occupy/possess whatsoever of any portion of the built-up Ground Floor portion of Khasra No.228/1/1 land/property admeasuring 80 sq. yds., bearing Plot No. 17/1, Gali No. 16, Manav Kunj, Mukundpur Extn. -II, Delhi - 110042, under/from the Defendant No.1 and further declaring that the Defendant No.1 has not granted any such right, title or interest whatsoever including legal occupation/possession thereto in favour of the Defendants No.3 & 4 with regard to any portion of the aforesaid suit property, and accordingly, the said Defendants CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 9 of 50 Date: 13.12.2023 No.3 & 4 are liable and bound to deliver up the vacant, physical and peaceful possession of the entire suit property (Ground Floor) along with Defendant No.1 to the Plaintiffs at the time of execution of the requisite/ transfer of sale documents in pursuance to the decree for Specific Performance, as aforementioned.
d) That a decree of permanent Injunction may be passed in favour of the Plaintiffs and against the Defendants thereby restraining the Defendants No.1,2,3 & 4 along with their agents, servants, representatives, legal heirs, successors, assigns, associates and nominees etc. from creating any 3rd party interest or encumbrance or otherwise parting with possession/occupation or making any addition, alteration, construction, demolition, in the built-up Ground Floor portion of the property as aforementioned, except the Plaintiffs.
e) To award cost of the suit/plaint in favour of the Plaintiffs and against the Defendants.
f) Any other relief which this Hon'ble Court deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the Plaintiff and against the Defendants.
3. The defendant no. 3 and 4 were proceeded ex-parte vide order of the Ld. Predecessor dated 09.09.2015. The defence of the defendant no. 2 was also struck off by Ld. Predecessor vide its order dated 09.10.2015. In the present case, defendant no. 1 is the only CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 10 of 50 Date: 13.12.2023 contesting party who had filed his WS. The defendant no. 1 in his WS has stated as under:
3.1 It is stated that the present suit is barred by the principles of resjudicata as the Ld. SCJ-cum-RC had already settled two issues in civil suit no. 437/2012. It is further stated that the present suit is not maintainable as the valuation of the suit property is Rs. 36 lacs (which is paid by the plaintiffs to the defendant no. 2) and not Rs.
8,00,000/-. It is further stated that the suit of the plaintiff is not maintainable as the same is based upon Agreement to Sell, Affidavit, Receipts and all such documents do not confer any title upon the plaintiffs. It is further submitted that the suit no. 432/2012 was not adjudicated upon merits and it was disposed off on the ground that the basic necessities cannot be restrained pending disposal of the suit no. 437/2012. The defendant no. 1 had made averments pertaining to 1st, 2nd and 3rd floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards, which are not relevant in the present case as the same pertains to ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards.
3.2 As regards defendant no. 3 and 4, the defendant no. 1 has stated that the defendant no. 3 and 4 are the employees of defendant no. 1 and they have not purchased the suit property in any manner.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 11 of 50 Date: 13.12.2023 3.3 As regards, litigation "Rajni Sharma Vs. Rajinder Kumar in Civil Suit bearing no. 569/2008", the matter was settled between the parties.
3.4 The main defence of defendant no. 1 is that the defendant no. 1 has not taken any consideration amount from the plaintiffs and the property in question was mortgaged with defendant no. 2 for an amount of Rs. 5,00,000/-. The plaintiffs in collusion with defendant no. 2 is trying to give the same a colour of sale transaction. It is further submitted that the defendant no. 2 has misused the original documents, which were given to defendant no. 2 for securing the loan transaction. The defendant no. 1 has denied all other averments made by the plaintiff.
4. In the replication filed on behalf of the plaintiff has reiterated the facts as stated in the plaint.
5. On the basis of pleadings, following issues were framed vide order dated 18.04.2016:
(a) Whether the plaintiff is entitled for decree of specific performance as prayed for?OPP.
(b) Whether the plaintiff is entitled for damages, in alternative as claimed?OPP.
(c) Whether the plaintiff is entitled for decree of declaration as prayed for?OPP
(d) Whether the plaintiff is entitled for decree of permanent injunction as prayed for?OPP CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 12 of 50 Date: 13.12.2023
(e) Whether the suit is bad for misjoinder and non joinder of necessary parties?OPD-1.
(f) Whether the plaintiff has no locus standi to file the present suit?
OPD-1.
(g) Whether the suit is barred by principle of resjudicata?OPD-1.
(h) Whether the suit is not properly valued for the purpose of court fees?OPD-1
(i) Relief.
6. Plaintiff in order to prove his case has examined following two witnesses:
6.1 A. PW-1 is Sh. Krishan Lal Ahuja, S/o Sh. Tuka Ram, R/o 17/1, 1st and 2nd Floor, Manav Kunj, Mukund Pur Extn.-Il, New Delhi-42 also at B-44, Sector-31, Noida, UP. He tendered his evidence by way of affidavit which is Ex. PW-1/A bearing his signatures at points A and B. He relied upon the following documents:-
(i) Certified copies of Agreement to Sell, GPA, Will, SPA, Receipt, Possession Letter all dated 12.08.2011 are exhibited as Ex.
PW1/1 (colly.).
(ii) Certified copies of sale documents including GPA, Possession Letter, Agreement to Sell, Affidavit, two Receipts, Registered Will all dated 23.03.2012 and two Aadhar cards are exhibited as Ex. PW1/2 (colly.).
(iii) Certified copies of sale documents including GPA, Possession CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 13 of 50 Date: 13.12.2023 Letter, Agreement to Sell, Affidavit, Receipts, Will all dated 11.04.2012 and a Bayana Receipt dated 01.04.2012 are exhibited as Ex. PW1/3 (colly.).
(iv) Certified copy of Lease Deed dated 23.04.2012 is exhibited as Ex. PW1/4 (colly.).
(v) Certified copy of full proceeding sheet along with order dated 28.05.2014 in CS 432/12 is exhibited as Ex. PW1/5 (colly.).
(vi) Certified copies of complaints dated 04.08.2012, 15.08.2012, 01.10.2012 and 15.10.2012 are exhibited as Ex. PW1/6 (colly.).
(vii) Agreement to Sell, GPA, Affidavit, Will and Receipt all dated 10.01.2006 in favour of Rajender Kumar are exhibited as Ex. PW1/7 (colly.).
(viii) Sale documents comprising Agreement to Sell, GPA, Affidavit and Receipt etc dated 16.01.1996 are exhibited as Ex. PW1/8 (colly.).
(ix) Certified copy of order sheet including final judgment and decree dated 07.05.2015 in CS 437/2012 are exhibited as Ex. PW1/8A (Colly.).
(x) Certified copy of plaint dated 03.09.2012 and WS dated 26.11.2012 in CS no. 437/2012 are exhibited as Ex. PW1/9 and Ex. PW1/10.
(xi) Certified copy of evidence by way of affidavit dated 20.08.2014 of Rajender Kumar in CS No. 437/2012 is Ex. PW1/11.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 14 of 50 Date: 13.12.2023
(xii) Cross examination of said Sh. Rajender Kumar as PW1 recorded in CS 437/2012 on various dates before the Local Commissioner and the Hon'ble Court are exhibited as Ex. PW1/12 (colly.).
(xiii) Certified copy of evidence by way of affidavit dated 24.01.2015 of Sh. Krishan Lal Ahuja as DW-1 in CS 437/12 are exhibited as Ex. PW1/13.
(xiv) Certified copy of plaintiff cross examination dated 16.02.2015 and 04.02.2015 is exhibited as Ex. PW1/14.
(xv) Certified copy of plaint dated 17.11.2012 in CS 432/12 is exhibited as Ex. PW1/15.
(xvi) Certified copy of WS dated 22.01.2013 in CS No. 432/2012 is exhibited as Ex. PW1/16.
(xvii)Record of suit no. 569/2008 titled "Rajni Sharma Vs. Rajender Kumar" containing full set of pleadings, statement of parties, applications, final order of the court etc. is exhibited as Ex. PW1/17 (colly.).
(xviii)Copies of rent agreement dated 01.01.2010 and no objection / affidavit dated 12.05.2011 is exhibited as Ex. PW1/18 (colly.) (xix) RTI reply received from the Dy. Commissioner's office dated 11.11.2014 is exhibited as Ex. PW1/19 (colly.).
(xx) RTI application, reply and documents are Ex. PW1/20 (colly.).
(xxi) Site plan signed by Architect Madan is exhibited as Ex.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 15 of 50 Date: 13.12.2023 PW1/21.
(xxii) Original five photographs are exhibited as Ex. PW1/22 (colly.).
(xxiii) Certified copies of FIR No. 552 dated 19.10.2007 u/s 420/406 IPC, PS Bawana Delhi is exhibited as Ex. PW1/23.
(xxiv) Certified copies of another FIR No. 560 dated 16.07.2007 u/s.420, 448, 120B & 34 IPC, PS Samai Pur Badli, Delhi is exhibited as Ex. PW1/24.
(xxv) Attested copies of two FIRs along with RTI response dated 31.05.2016 from office of PIO, Delhi Police, Outer District, Delhi is exhibited as Ex. PW1/25.
(xxvi) Response dated 28.04.2016 along with reply dated 26.03.2016 from office of DCP (N/W Distt.) is exhibited as PW1/26 (colly.).
(xxvii)Attested copies of two FIRs beairng no. 479/2014 u/s 380 IPC, PS Bhalswa Dairy, Delhi are exhibited as Ex. PW1/27 (colly.).
(xxxiii)Bank statements / pass books as well as Demat account statements for shareholding etc. are exhibited as Ex. PW1/28 (colly.).
6.2 PW-2 is Sh. Tarun Kumar Ahuja, S/o Sh. Krishan Lal Ahuja, R/o B-44, Sector-31, Noida. On S.A. He tendered his evidence by way of affidavit Ex. PW-2/A, which bearing his signatures at Points A & B. CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 16 of 50 Date: 13.12.2023 He also relied upon the documents already Ex. PW-1/28 (Collectively).
6.3 PW 3 Sh. Vinod Kumar Valecha, S/o Late Sh. Kishan Chand, R/o Flat No. 216, Kewal Kunj Apartment, Sector -13, Rohini, Delhi
-110085. He tendered his evidence by way of affidavit which is Ex. PW 3/A. The same bears his signatures at points A and B. 6.4 PW 4 is Sh. Tushar Ahuja, So Sh. Krishan Lal Ahuja R/o 17/1 (Ist and IInd Floor), Manav Kunj, Mukund Pur Extn. Delhi 42. He tendered his evidence by way of affidavit dated 02.01.2018 which is Ex. PW 4/A bearing my signatures on all pages at the bottom and on the last page at two places at point A and B. He also relied upon documents Ex. PW 1/1 to Ex. PW 1/28 which have already been exhibited.
6.5 PW 5 is Sh. Suresh Kumar, SJA, Record Room, Rohini. He brought the summoned record i.e. case filed in FIR no. 552/07, PS Bawana, u/s 420/34 IPC titled as "State Vs. Rajender Kumar", decided by the court of Sh. Jitendra Pratap Singh, Ld. MM-05, North, Rohini, Delhi on 15.11.2016. True copy of settlement dated 24.10.2016 along with statement of parties recorded on 15.11.2016 and the order of the court dated 15.11.2016 are Ex. PW5/1 (colly. 12 pages).
6.6 PW-6 is Sh. Mukesh Kumar, Ahlmad in the court of Ms. Neha Gupta Singh, Ld. MM-02, Rohini Courts (North), Delhi. He brought the summoned record i.e. case filed in FIR no. 560/07, PS SP Badli, CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 17 of 50 Date: 13.12.2023 u/s 448/420/467/34 IPC titled as "State Vs. Suresh Kumar". The copy of aforesaid FIR no. 560/07 is already Ex. PW1/24.
7. Defendant in order to prove its case has examined following witnesses:
7.1 A. DW-1 is Sh. Rajender Kumar S/o Sh. Bishamber Nath, R/o H. No. 17/1, Ground Floor, Gali No.16, Manav Kunj, Mukundpur Extension-ll, Delhi-110042 and also at A-64, Gujrawala Town, Delhi-110009. He is defendant no.1 in the present case. He tendered his evidence by way of affidavit which is Ex. DW 1/A. The same bears my signatures at points A and B. The right of the defendant to lead evidence of DW1 as well as to lead DE was closed vide order dated 02.01.2023 and it was held that the part evidence of DW1 shall not be read.
8. I have heard the final arguments and perused the record.
9. My issue-wise findings are as follows:
9.1 Whether the plaintiff is entitled for decree of specific performance as prayed for?OPP.
9.1.1 The onus to prove this issue is upon the plaintiff. The plaintiff in order to prove the same has examined himself as PW1 along with other witnesses being PW2 (son of plaintiff), namely, Mr. Tarun Kumar Ahuja, PW3, namely, Mr. Vinod Kumar Valecha (son-in-law of plaintiff), PW4, namely, Mr. Tushar Ahuja (son of plaintiff), PW5 and PW6. PW1 in his examination-in-chief has relied upon Ex.
PW1/1 till Ex. PW1/28.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 18 of 50 Date: 13.12.2023 9.1.2 The case of the plaintiff is that he has entered into an oral agreement to sell dated 05.07.2012 with defendant no. 1 for purchase of ground floor of the property bearing no. 17/1, Gali No. 16, Manav Kunj, Mukund Pur Extension -II, Delhi-110042 for a sale consideration of Rs. 8,00,000/-. It is the case of the plaintiff that the plaintiff has made a payment of Rs. 4,50,000/- in furtherance of the abovesaid oral agreement to sell dated 05.07.2012. The plaintiff has made the payments as stated under:
Date of Amount of Payment made by to whom the
payment payment, payment was made
05.07.2012 Rs. 1,00,000/- Plaintiff himself Defendant no. 2 on
behalf of defendant
no. 1
06.07.2012 Rs. 2,00,000/- Sh. Tarun Kumar Defendant no. 2 on
(PW2, eldest son of behalf of defendant
plaintiff) no. 1
07.07.2012 Rs. 1,50,000/- Sh. Vinod Kumar Defendant no. 2 on
Valecha (PW3, son behalf of defendant
-in-law of plaintiff) no. 1
It is the case of the plaintiff that in lieu of the payment made, the defendant no. 1 and 2 had handed over the original property title papers with respect to the suit property between defendant no. 1 and the erstwhile owner along with previous title chain of documents to the plaintiff. However, no receipt acknowledging the payment of money was issued by defendant no. 1 in favour of the plaintiff.
9.1.3 At the outset, it is pertinent to state the law with regards to the Specific performance of an oral agreement to sell. In this context, CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 19 of 50 Date: 13.12.2023 Ld. Counsel for the plaintiff has himself relied upon the judgment of the Hon'ble Supreme Court of India in "K. Nanjappa (D) by LRs Vs. R. A. Hameed @ Ameersab (D) by LRs (Civil Appeal No. 8224 of 2003)", wherein it has held as under:-
"19. There is no dispute that even decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy Counsel) observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a privy counsel was followed by this court in the case of Koillipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028, and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties."
9.1.4 In another judgment of the Hon'ble Supreme Court of India titled as "Alka Boss Vs. Paramatma Devi & Ors, Civil Appeal no. 6197 of 2000" relied upon by the plaintiff, it was held as under:
"7) We find that neither of the two decisions have addressed the real issue and cannot be said to be laying down the correct law.
The observation in Md. Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is not correct. An unilateral contract refers to a gratuitous promise where only party makes a promise without a return promise. Unilateral contract is explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts (4th Edition Para 2-10(a) at pages 64-65):
"If A says to B, If you walk across the Brooklyn Bridge I will pay you $ 100,' A has made a promise but has not asked B for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no point is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classified as unilateral because only one party is ever under an obligation."
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 20 of 50 Date: 13.12.2023 All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
9.1.5 Ld. counsel for the defendant has also relied upon the judgment of CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 21 of 50 Date: 13.12.2023 the Hon'ble High Court of Kerala in "Bhasy Vs. Thoman & Ors, in RSA No. 529 of 2015", wherein it has been held that a decree of specific performance could not be granted based on an oral agreement unless there was cogent evidence to prove the same. It is argued on behalf of the Ld. Counsel for defendant to seek a decree for specific performance of a contract of sale of immovable property on the basis of an oral agreement alone, a heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for the sale of immovable property.
9.1.6 The first question that arises for decision is whether the agreement pleaded in the plaint is proved. The burden of proving that agreement is naturally on the plaintiff as the agreement in question is said to be an oral agreement. Therefore, the plaintiff's task is all the more difficult. To prove the oral agreement, the plaintiff has relied upon the so called admissions made by the defendant no. 1 in an earlier litigation. The Ld. Counsel for plaintiff has argued that the plaintiff had purchased the 1st, 2nd and 3rd floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi- 110042, admeasuring 80 sq. yards, from defendant no. 2, who had purchased the same from defendant no. 1. The defendant no. 1 had filed an earlier suit against defendant no. 2 and the plaintiffs herein bearing suit no. 437/2012 for seeking permanent injunction and declaration against the plaintiffs and defendant no. 2 that the transfer CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 22 of 50 Date: 13.12.2023 documents executed by defendant no. 2 in favour of plaintiff with regards to 1st, 2nd and 3rd floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards, be declared as null and void. The said suit was dismissed by the Ld. Trial court and against such order / judgment, an appeal is pending as on date. The plaintiffs in their WS in the said suit had stated about the oral agreement to sell with respect to the suit property i.e. ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi- 110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin. It is argued by Ld. Counsel for plaintiff that the abovesaid stand of the plaintiffs was not countered by the defendant no. 1 by filing the replication in that suit and therefore, the existence of the oral agreement with respect to the suit property is deemed to be admitted by the defendant no. 1 and therefore, estoppel should be applied upon the defendant no. 1 from denying the existence of the oral agreement to sell. Ld. Counsel for plaintiff has placed reliance upon the judgment of Hon'ble High Court of Delhi in "Asha Sharma & Ors. Vs. Sanimya Vajijiya Pvt. Ltd & Ors. in CS (OS) No. 1883 of 2006", wherein it was held as under:-
18. A litigant who approaches the court for relief should not be doing so, in derogation of a previously held and articulated position. It needs hardly be emphasized that inconsistent pleas are CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 23 of 50 Date: 13.12.2023 not permitted in the same action. Equally inconsistent pleas are not permitted in two different actions. This was held to be so in Cooke v. Rickman [1911) 2 KB 1125]. The Court there held that the rule of estoppel could not be restricted to a matter in issue, stating:
"... The rule laid down in Hawlett v. Tarte (1) C.B. (N.S.) 813 - was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel..."
19. The Supreme Court held, in Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others (2006) 7 SCC 756 that:
"While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict."
The court also held:
"The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged."
All these principles were reiterated and applied in Deewan Singh
-vs- Rajendra Prasad Ardevi 2007 (10) SCC 528.
20. The plaintiffs categorically stated, in the previous revisional proceeding that they were not challenging the sale deeds of 1995; they have also averred to that effect, in the revision petition, admittedly filed by them. Also, the revision itself arose out of an application filed by the applicant defendants here, under Order 22 Rule 10, CPC. The plaintiff's predecessor in interest, as a matter of pleading, categorically averred having executed the sale deeds. She contested the right to recover rents for a certain period, and having conferred residual rights. However, as far as validity of the impugned sale deeds are concerned, she did not deny them.
21. In the totality of the above circumstances, the court is of the opinion that the plaintiffs are estopped from maintaining the suit;
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 24 of 50 Date: 13.12.2023 they are also deemed to have acquiesced to the applicant's title. The averments in the suit are not that they became aware of the so called fraud, after the order of this court; indeed, the cause of action, according to them, arose after the death of Satyawati Sharma.
22. In the decision reported as N.V. Srinivasa Murthy v. Mariyamma, (2005) 5 SCC 548, while adverting to the T. Arivandandam v. T.V. Satyapal 1977 (4) SCC 467 it was held:
"This is a fit case not only for rejecting the plaint but imposing exemplary costs on the appellant on the observations of this Court in the case of T. Arivandandam v. T.V. Satyapal:
"The trial court must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must be triggered against them."
23. The previous pleadings adverted to above, by this court, clearly estop the plaintiffs from disputing the validity of the documents, impugned in these proceedings. Though the suit alleges fraud, the elements and basis of such fraud are tell tale and vague. The suit is a disguised attempt to attack the title to something which the vendor herself did not dispute in her lifetime; the plaintiffs elected in their pleadings, in the revision, not to challenge these documents. Therefore, the suit is not maintainable on the principle of estoppel by pleading, and acquiescence.
9.1.7 The Ld. Counsel for plaintiff has also relied upon the judgment of the Hon'ble Supreme court of Indian in "B. L. Sreedhar & Ors. Vs. K. M. Munireddy (Dead) & Ors., AIR 2003 SC 578", wherein it is interalia held as under:
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 25 of 50 Date: 13.12.2023
25. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
26. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights.
Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma. (AIR 1951 Madras 403) where Vishwanatha Sastri, J. observed :
"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doc-trine."
27. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a stat-ute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."
9.1.8 In the instant case, the plaintiffs have pleaded that defendant no. 1 has admitted the oral agreement to sell and for this purpose has relied upon Ex. PW1/8A and Ex. PW1/9. Ld. Counsel for plaintiff has relied upon the judgment o fhte Hon'ble High Court of Delhi in "
Mohan Madan Vs. Smt. Sheel Gulati in CS (OS) No. 357 of 2006, wherein it was held that non-filing of replication in a case where replication was required to be filed been amount to deemed admission of the facts of the written statement. The relevant CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 26 of 50 Date: 13.12.2023 paragraphs is stated as under:
Q. I put it to you that the notice which you have claimed to sent to the plaintiff was not received by the plaintiff. What do you have to say?
Ans. The plaintiff must have received the notice as the same was not returned to me.
Sd/- Sd/-
RO&AC K. VENUGOPAL (DHJS)
dsn Joint Registrar (Judicial)
Dated: 28.07.2014"
9(i). Before discussing in detail the aforesaid deposition and pleading of the plaintiff in para 5 of the plaint, it needs to be noted (and I have already stated this in the earlier part of this judgment) that plaintiff has for some strange reason chosen not to file any replication to the written statement filed by the defendant. In the written statement, the defendant has pleaded the categorical case that plaintiff out of the sum of Rs.25 lacs paid an amount of Rs.10 lacs by a cheque of Sh.Dharampal Malik and this cheque bounced on presentation.
(ii) In my opinion, non-filing of replication in a case such as the present will amount to deemed admission of the facts of the written statement with respect to the amount of Rs.10 lacs being paid by cheque out of the amount of Rs.25 lacs paid on 5.10.2005. Deemed admission will arise in view of Order VIII Rule 9 read with Order VIII Rule 5 and Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) and which provides that on non-filing of replication (technically called as an additional written statement and not replication in Order VIII Rule 9 CPC), the same will amount to deemed admission of the contents of the written statement filed by a defendant."
9.1.9 The plaintiff has also argued that even in the civil suit bearing no.
432/2012 (Ex. PW1/5) filed on behalf of the plaintiffs against defendant no. 1 and 2, the defendant no. 1 has not traversed the stand taken by the plaintiffs about the existence an oral agreement to sell CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 27 of 50 Date: 13.12.2023 between defendant no. 1 and the plaintiffs with respect to the ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin. It is stated that the defendant no. 1 has given an evasive reply by stating that the relevant pages were not supplied to the defendant no. 1 and therefore, he cannot admit or deny the same. It is argued by the plaintiffs that in the previous rounds of litigation i.e. CS No. 432/2012 and 437/2012 between the parties hereto, the plaintiffs had always agitated the issue regarding the existence of an oral agreement to sell between the plaintiffs and the defendant no. 1. It is argued that the defendant no. 1 has given an evasive reply in CS No. 432/2012 and has deemed to be admitted the oral agreement to sell in CS No. 437/2012 by not filing the replication. It is further argued that the oral agreement to sell also stands admitted on account of non-rebuttal in the evidence recorded in suit no. 437/2012. It is further argued by the Ld. Counsel for plaintiff that the in civil suit bearing no. 437/2012, the defendant no. 1 has not cross examined the plaintiffs (who were the defendants in the said suit) regarding the non-existence of any agreement to sell. It is stated that the defendant no. 1 has not even given a suggestion with respect to the same and therefore, this court should presume the existence of an oral agreement to sell between the parties. It is argued by the plaintiffs that in view of the admissions made by defendant no. 1, the oral CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 28 of 50 Date: 13.12.2023 agreement to sell is proved and hence, the plaintiffs are entitled to a decree of specific performance in their favour.
9.1.10 Per contra, Ld. Counsel for defendant no. 1 has argued that non filing of replication in CS No. 437/2012 would not tantamount to an admission. It is also argued that in the present suit the defendant no. 1 has categorically denied about the existence of any agreement to sell between the parties as well as receipt of payment.
9.1.11 Ld. Counsel for plaintiff has argued that in CS No. 437/2012, the defendant no. 1 has taken a stand that the original documents were parted by the defendant no. 1 as he had taken a friendly loan of Rs. 5,00,000/- subject to the mortgage of the 1st, 2nd and 3rd floor of his property. The relevant pleadings from CS No. 437/2012 are stated as under:-
4. That at the time of purchase, previous owner executed GPA, Affidavit, possession letter Will, receipt of Rs. 70,000/- in favour of the plaintiff and thereafter plaintiff raised construction and started to reside over suit property. Consisting Three Room, Open Space, Kitchen, Gate on ground floor, Three Room, Kitchen latrine Bathroom, on first floor, Three Room, Kitchen latrine Bathroom, on second floor and one room and stairs room on third floor as son in the site plan annexed herewith as Annexed-P-2.
5. That in the month of August, 2011 the applicant was in urgent need of money and approached to defendant no.3 to ask for a friendly loan of Rs. 5, 00, 000/-(Rupees Five lacs only) but he refused at moment, mean while accused no.1, 2& 4 were sitting along with defendant no.3 who jointly assured and said that the plaintiff may come after one hours and these all defendants shall disclose their opinion in this regard. After passing one hour when applicant again reached to defendant no.3 the others defendants were also sitting together and said that we are ready to give you Rs.
5,00,000/- (Rupees Five Lacs only) but subject to mortgage of the CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 29 of 50 Date: 13.12.2023 property 17/1 Manave Kunj, along with its original title deed and possession of first, second & third floor.
6. That the plaintiff became ready to handover the original title deed and possession of first, second & third floor of the suit property till satisfaction / repayment of the friendly loan amounting Rs. 5,00,000/- (Rupees Five lacs only) in this regard all the defendants used to take defendants no:1, 2, 3 & 4 got obtained the signature on mortgage deed, promissory note, agreement to sale two blank stamp paper of Rs.50/- & Rs.10/- respectively I was not signing the said papers but they said that this is only formality and as soon as plaintiff will returned the amount all signed documents will be handed over to the plaintiff or destroy.
7. That the all original title deed of the property and possession of first floor in the favour of defendant no. 2 and second & third floor in the favour of defendant no.1 only as a security of Loaning amount of Rs. 5, 00,000/- (Rupees Five lacs only), to avoid misuse of the property plaintiff given the possession of the first, second & third floor without electricity and water facility.
9.1.12 It is argued that the defendant no. 1 has taken inconsistent stand in his pleadings in suit no. 437/2012 and the Ld. Trial Court judge in his judgment Ex. PW1/8A (colly.) has categorically mentioned about the conduct / modus operandi adopted by the defendant no. 1 to entrap innocent buyers. The relevant extracts of the judgment in the suit no. 437/2012 are as under:-
"17. Dehors the aforesaid what tipped the scales in favour of the defendants is the copy of the proceedings of the suit titled as 'Rajni Sharma Vs. Rajender Kumar' bearing No. 569/08. Now in the said suit defendant Rajni Sharma had sued for specific performance in reference to an agreement to sell which was entered into by the plaintiff herein in reference to the ground floor of the property 17/1, Manav Kunj, Mukund Pur, Delhi. She had made the payment in the year 2008. In response whereof in the written statement filed by the plaintiff herein in the year 2008 had propounded a defence in his written statement that the amount of Rs. Five Lacs was only a loan and the agreement to sell which was relied upon by the plaintiff CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 30 of 50 Date: 13.12.2023 was a forged and fabricated document. He denied his signatures on the same and claimed that the market value of the ground floor was not less than Rs.30 Lacs. It was further claimed that the plaintiff in the said suit was entitled to said Rs. Five Lacs loaned to him upon restoring the possession of the property. The plaintiff herein further in para No. 14 stated that the property earlier (ground floor of the property)was mortgaged with one Mukesh Kumar. The husband of the plaintiff namely L.P. Sharma intended to purchase 42 sa. yards on the ground floor and in the said reference in the presence of Mukesh Kumar who was the mortgagee of the property, an agreement in this reference was executed dt. 10.10.2008. The amount which was extended as loan by the plaintiff was adjusted as earnest money. 60 days time was given to the plaintiff to make the balance payment which she failed to pay and further it was claimed that while the plaintiff was in Shirdi said Rajni Sharma had tress passed into the property.
18. Now again the similar modus operandi has been adopted by the plaintiff herein against the defendants. Mukesh Kumar defendant No. 3 again had an important role to play. He was always the inter mediary/his name reflected in the transactions. Obviously he would not speak against the plaintiff/was in hand in gloves and in active concert with the plaintiff and has chosen not to participate in the suit. It is also otherwise improbable that a person who is litigating since the year 2008 onwards would execute documents in blank and in reference to property, the value of which was not less than Rs.30 Lacs as per his own claim in the written statement in the said suit - the value of the ground floor of the property claimed back in the year 2008/2009. The plaintiff appears to have mastered the art of entrapping innocent persons and thereafter, litigate with them obviously with a view to yield to his demands knowing well that the title documents of the suit property are always not free from doubt in as much they are not registered ones. No other inference can be made to such circumstances/the conduct of the plaintiff.
19. Further the plaintiff had no locus standi to challenge the documents of the defendants No. 1 and 2 which have been executed by defendant No. 3 in their favour in as much as plaintiff was left with no right after execution of such documents and transfer of possession of the suit property. The plaintiff thus, has failed to substantiate his case for a declaratory relief coupled with a relief of injunction. Issues are decided adverse to the plaintiff."
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 31 of 50 Date: 13.12.2023 9.1.13 It is argued by the plaintiffs that the case of the defendant no. 1 in the earlier litigations that he had taken a loan of Rs. 5,00,000/- from defendant no. 2. However, in the WS in the present case, he has raised additional and new contradictory plea that he has already repaid the loan amount without giving any material particulars or any document of receipt / repayment or even without taking back original title documents or even without taking back the possession of any floor of the suit property.
9.1.14 It is argued by the plaintiff that there is an admitted documents Ex.
DW-1/X3 which is an admitted reply filed by defendant no. 1 before the P.G. Cell, Govt. of NCT of Delhi stating therein that he willing to repay the loan amount of Rs. 5,00,000/- to K.L. Ahuja. The plea of alleged repayment is stated in the written statement is taken on 09.09.2015 while the reply before P.G. Cell is filed on 08.11.2015. It is argued that the two dates show falsity of conduct of defendnat no.
1. It is completely established on record that defendant no. 1 is making false stories at different forums to save his skin, which are reflective of his ulterior conduct. The Ld. Counsel for plaintiff has relied upon Ex.PW1/26, wherein a complaint was filed by the plaintiff no. 1 in Public Grievance against the defendant no. 1.
9.1.15 It is argued by the plaintiff that the plaintiff has also proved on record at least two F.I.Rs u/s.420/406/468/34 IPC, being Ex.PW-1/23 & PW-1/24 showing involvement of Defendant no.1 by name in cheating and property fraud cases. One of the cases in fact was CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 32 of 50 Date: 13.12.2023 settled by him by paying compensation to the Complainant party as per Ex.PW-5/1 (Colly) as proved through PW-5 (Record Clerk), Rohini, Delhi, pertaining to F.I.R. Ex.PW-1/23 (Colly). It is argued that the conduct of the Defendant no.1 is malafide u/s.43 of Evidence Act and same is also pleaded in the plaint and replication. It is argued that the plaintiff is in possession of records of other multiple cases against defendant no.1 showing malafide conduct. In fact, defendant no.1 is convict in criminal case in corruption case No.76/94 vide RC-11(S)/94 DLI U/s.120-B r/w section 420/467/468 & 471 and section 13(1)(d) r/w section 13(2) of P.C. Act, decided by court of Sh. V.K. Maheshwari, Spl. Judge, Delhi.
9.1.16 It is argued by the plaintiffs that they have produced the original title documents of suit plot/suit property as purchased by defendant no.1 from Mehtab Singh on 10.01.2006 vide Ex.PW-1/7 (Colly). Even the earlier chain of title documents thereto dated 16.01.1996 are proved/produced as Ex.PW-1/8 (Colly). These documents are even otherwise specifically admitted by defendant No.1 at the stage of admission/denial before the Hon'ble Court. It is argued that there is no prayer either in the present suit seeking return of these original title documents nor any such prayer was ever made in the previous two sets of litigations as well (even if false defence of Defendant no. 1 is considered per-se that he had given the documents to Defendant no.2 in 2011). It is argued that limitation for such relief/prayer already stands expired. The original title documents are in the custody of the Plaintiffs. It is argued that it is most reasonable for the CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 33 of 50 Date: 13.12.2023 plaintiffs to have possession of the original title documents from defendant No. 1 at the time of making oral Agreement to Sell for the Ground Floor portion in 2012. The alleged handing over of title documents to Defendant no.2 in 2011 is unbelievable since in 2011, Defendant no.1 had purportedly sold (or allegedly mortgaged) only the 1st, 2nd , 3 floors and roof of the suit property but retaining rights of the ground floor built-up portion. Only when the ground floor portion was agreed to be sold orally to the Plaintiffs, then the entire chain of original title documents Ex.PW-1/7 & Ex. PW-1/8 (Colly) were handed over by Defendant no.1 to Plaintiffs. This is unrebutted evidence given by Plaintiff also. It is admitted by defendant no. 1 that defendant no.2 was/is his close fast friend for the past 25 years (Ex.DW-1/12, Cross-examination of Rajinder Kumar in CS No.437/12). It is argued that defendant no. 1 has not filed any legal proceedings against defendant no. 2 or even against the plaintiffs regarding the return of original title documents or even return/prayer for possession of suit property.
9.1.17 After considering the rival contentions of the parties, the following question needs to be answered:-
(a) Whether non-filing of replication in CS No. 437/2012 would tantamount to admission on the part of the defendant no. 1 about existence of an oral agreement to sell, if yes, will that discharge the plaintiff from proving an agreement to sell in the present case?
(b) Whether estoppel would apply upon the defendant no. 1?
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 34 of 50 Date: 13.12.2023
(c) Whether the conduct of the defendant no. 1 can lead to a presumption that he has entered into an agreement to sell with the plaintiffs?
In the considered opinion of this court, the defendant no. 1 has never admitted as such about the existence of an oral agreement to sell between defendant no. 1 and the plaintiffs. The entire contention of the plaintiffs that the defendant no. 1 has admitted the oral agreement in civil suit bearing no. 437/2012 is based on the pretext that the defendant no. 1 did not choose to clarify the additional ground taken by the plaintiffs about existence of agreement to sell in his WS by not filing the replication. The question is whether in CS no. 437/2012, there was a requirement for filing of replication. The plaintiffs in that case had agitated about an oral agreement to sell with respect to the ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin, which was not the subject matter of that suit. The defendant no. 1 had filed that suit for seeking declaration and permanent injunction with respect to the documents executed by defendant no. 2 in favour of the plaintiffs for the 1 st, 2nd and 3rd floor of the property and the additional ground / averment taken by the plaintiffs in that suit with respect to the ground floor of the suit property was not in dispute. Thus, without setting up a set off / counter-claim, the plaintiffs herein could not have set up a different CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 35 of 50 Date: 13.12.2023 case with respect to a different property. A relief is to be based on the plaint of the plaintiff and not on the basis of WS. Therefore, by applying the theory of assumed traverse the stand taken by the plaintiffs in their WS in the said suit stands automatically denied by the defendant no. 1 and as such there was no requirement in law to file a replication for denying the same.
9.1.18 Reliance is placed upon the judgment of the Hon'ble High Court of Delhi in "M/s Anant Construction (P) Ltd. Vs. Ram Niwas Garg, 1994 IVAD Delhi 185, 1994 (31) DRJ 205, 1995 RLR 20", wherein it is held as under:
(17) 1 The plaintiff files a simple suit for recovery of money based on an instrument dated 1.1.94. The defendant in his written statement pleads the payment dated 30.6.94. If the plaintiff merely denies the payment made by the defendant, he need not file a replication. He will be presumed to have denied the plea of payment. Court will frame an issue on the plea of payment placing the onus on the defendant. However, if the plaintiff admits the payment dated 30.6.94 but proposes to avoid the effect of payment by pleading that payment was towards some other loan advanced by the plaintiff say on 1.9.93 and so the payment pleaded by the defendant does not satisfy the suit claim then he has to file a replication. 15.2 In a suit relating to title to a property the defendant denies and disputes the plaintiffs title by setting up a plea of gift or adoption. If the plaintiff merely denies the gift or adoption he need not file a replication. If he admits the factum of adoption or gift and yet seeks to get rid of its legal effect by alleging the same to be illegal on certain grounds, the illegality has to be pleaded by filing a replication. 15.3 In a suit for partition between the members of the Joint Hindu Family, the plaintiff pleads three items available for partition. The defendant without filing a counter claim, sets up a plea that there is 4th item of property belonging to the Joint Hindu family which having not been included by the plaintiff in the claim for partition, the suit was bad. The plaintiff CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 36 of 50 Date: 13.12.2023 merely denying the joint family character of the 4th property need not file a replication.
(18) Whenever a replication is filed it has to be confined only to such part of the written statement the plea raised wherein demands replication.
(19) A distinction between a plea requiring amendment of the plaint and a plea sought to be introduced by replication shall have to be kept in view. A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff's cause of action cannot be introduced through a replication. As already stated replication is always a defensive pleading in nature. It is by way of confession and avoidance or explanation of a plea raised in defense. It will be useful to quote from Halsbury's Laws of England (Vol 36, para 62, p 48):-
"62.Necessity for amendment. The fact that a party may not raise any new ground of claim, or include in his pleadings any allegation or fact inconsistent with his previous pleadings, has been considered elsewhere. In order to raise such a new ground of claim, or to include any such allegation, amendment of the original pleading is essential."
17.1 In M.S.M. Sharma vs. Sri Krishna Sinha, their Lordships refused to consider (20) A plea inconsistent with the case set out by the plaintiff in the plaint can never (21) Ms Ritu Bhalla advocate, as stated in an earlier part of this judgment, pointed out 19.1 This direction is to be found contained in Chapter 1 Practice in the Trial of Civil Suits. This chapter applies to subordinate Courts and not to High Court ( Original Side). Be that whatever it may, the scope of the above said provision is limited, as the language of the direction itself suggests. It refers to order 8 Rule 9.1t vests power in the Court to call upon the parties to file written statement meaning thereby additional pleading by way of replication or rejoinder) for elucidating the pleas when necessary, especially in complicated case. The direction does not confer any right on a party to file a subsequent pleading and to insist on hearing being adjourned enabling filing of replication. The practice direction does not in any manner run counter or in departure with the legal position discussed hereinabove. 19.2 Any CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 37 of 50 Date: 13.12.2023 practice direction or a provision in rules governing original side of High Court contemplating replication has not been brought to my notice.
(22) Whenever a pleading is allowed to be amended an opportunity has to be afforded to the opposite side to meet the new case by filing an additional statement ( see Note 14 below Order 6 Rule 17 Civil Procedure Code by Manohar & Chitley). If the plaint is amended, written statement has to be amended so as to incorporate a denial or defendant's plea, as the case may be, in view of Order 8 Rule 3 and 5 CPC. If the written statement is amended, the plaint need not necessarily be amended as the plaintiff may rely on the rule of assumed traverse. If a replication many become necessary, leave may be allowed to file the same but confined to the plea newly introduced in the written statement by way of amendment. (23) A few decisions by different High Courts, especially by Delhi High Court which have come to notice may be dealt with. 21.1 The law of pleadings does not require a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, Laxmansing. v. Laxminarayan Deosthan. Air 1948 Nagpur 127, Bank of Behar Ltd v. Madhusudan Lal, Air 1937 Patna 4281. 21.2 In Amarjeet Singh vs Bhagwati Devi 1982 (12) Rlr 156, this Court has held a pleading to mean plaint and written statement only. A plaintiff can claim relief on the basis of pleas in the plaint and not on pleas in the replication. 21.3 In Roshan Lal vs. Prem Prakash, Air 1980 Patna 59, it was held : "A subsequent pleading by way of defense to a set off or counter-claim can be filed by the plaintiff as a matter of right, but the provisions do contemplate the filing of other pleading as well but by the leave of the Court and invest the Court with the widest possible discretion. Either party may, with the leave of the Court file a supplementary written statement, but at the same time the law does not compel the plaintiff to file any rejoinder to the allegations made in the written statement and the failure of the plaintiff to file such a rejoinder, cannot be treated as an admission of the plea in the written statement. The plaintiff is entitled to join issues with the defendant with respect to all those allegations which are made in the written statement and may lead evidence in rebuttal of those allegations notwithstanding the fact that he does not file any rejoinder."
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 38 of 50 Date: 13.12.2023
26) To sum up:
(1)'replication' and 'rejoinder' have well defined meanings.
Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed . (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of 'confession and avoidance.' (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave. (7) A mere denial of defendant's case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings. (10) A plea which is foundation of plaintiff's case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication. .Appreciation is placed on record of useful assistance rend erred by Shri Ishwar Sahai Sr Advocate and Ms Ritu Bhalla advocate both from civil side of High Court Bar who brought to the notice of the court quite a few aspects relevant to the issues at hand..."
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 39 of 50 Date: 13.12.2023 9.1.19 What is relevant is that in the instant suit, wherein the subject matter of dispute between the parties is the ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin, the defendant no. 1 has categorically denied the existence of an oral agreement to sell between the parties. The defendant no. 1 has also disputed the factum of payment being made to him. In such scenario,where the oral agreement to sell is disputed by the defendant, the plaintiff was under a strict burden to prove the existence of a concluded contract / agreement to sell between the parties hereto. It was also essential for the plaintiffs to show consensus ad idem i.e. agreeing to the same things in the same manner. As regards, applicability of estoppel is concerned, once this court has come to the conclusion that the defendant no. 1 has not represented / acted / acquiesced that an oral agreement to sell had existed / concluded between the parties, no question of applying estoppel arises. Be that as it may be, even upon a perusal of the testimonies of PW1, PW2, PW3 and PW4, a concluded contract between the parties cannot be inferred. Moreover, the principal witnesses who are examined in support of the oral agreement to sell do not appear to be reliable witnesses as PW1 is no other than plaintiff himself. PW2 is his son, PW3 is his son-in-law and PW4 is also son of plaintiff. They all are interested witnesses and their evidence cannot carry much weight. The relevant part of CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 40 of 50 Date: 13.12.2023 the testimonies of PW1 to PW4 are as under:-
TESTIMONY OF PW1 ".......Q. For purchasing the ground floor of the same property with whom you have entered into agreement to sell?
Ans. I had entered into agreement to sell and purchase of the ground floor which Mukesh Kumar Sawalia and Rajender Kumar Walia.........
........The purpose of purchasing the ground floor, Mr. Mukesh Kumar of the suit property, Defendant No. 2 came to me and he said that the owner of the ground floor Mr. Rajender Kumar wants to sell the ground floor. (Vol. I was being pressurized by defendant no. 2 for the purchase of said portion). It is correct that I had already been in with the defendant no. 1 and 2 which was pending in court regarding the portion ie., 1st, 2nd and 3rd floor of the suit property. Defendant No. 2 impressed upon me to buy out the ground floor portion also as that will result in solving of the entire disputes regarding the property and closure of the cases. Defendant no. 2 spoke on telephone to defendant no. 1 regarding the proposed sale of ground floor in my presence. I was not sure that the other side receiver was Mr. Kumar or not as I was not keen to buy the said portion.
Question: whether you made any query to Mr. Kumar directly whether you want to sell the ground floor or not?
Ans: I had not met with Mr. Kumar for purchasing the ground floor. (Vol. Mr. Mukesh, D-2 used to come to meet me at my upper floor and pressurized me to purchase the ground floor). Consideration was agreed for 8 lakh for purchasing the ground floor.......
.........The original titled documents regarding the suit property had been shown to me by Mr. Mukesh Kumar, D-2 after being brought the same file from Rajender Kumar, D-1. I had made part payment in the sum of Rs. 4.5 lakh in three installments ie., Rs. 1 lakh, Rs. 2 lakh and Rs. 1.5 lakh in cash. No receipt was given to me by the defendants. The said payment amount was given to both the defendants. The initial amount of Rs. 1 lakh was taken firstly by Mr. Mukesh Kumar from me on the first floor of the suit property where I was staying, thereafter, we both came down to the ground floor CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 41 of 50 Date: 13.12.2023 where we both handed over the said amount of Rs. 1 lakh to Sh. Rajender Kumar, D-1. No other witness was present at that time. The next amount of Rs. 2 lakh was paid on 06.07.2012 to D-1 and D-2 by my son Sh. Tarun Kumar at his residence at Noida and thereupon it was telephonically confirmed by both the D-1 and D-2 to me about the receipt of the said payment. No receipt of said Rs. 2 lakh was given to me. The third installment of Rs. 1.5 lakh was collected by defendant no. 1 and 2 from my son in law namely Sh. Vinod Kr. Walecha from his residence at Sector - 13, Rohini, Delhi and this was telephonically confirmed to me by the defendants. No receipt of this installment amount also was given to me. No other witness except Vinod Kumar was present.
It is wrong to suggest that there was no agreement of sale between plaintiffs and defendant no. 1 and 2 regarding the sale of the ground floor portion of the suit property. It is wrong to suggest that I had never met Mr. Rajender Kumar prior to the agreement of sale of ground floor portion. It is wrong to suggest that since I did not make any payments. It is wrong to suggest that there was no oral agreement for sale regarding the ground floor portion of the suit property.. It is wrong to suggest that since the suit filed by Sh. Rajender Kumar being suit no. 437/12 was dismissed against him and accordingly to take advantage of the same, I have filed the present suit. It is wrong to suggest that I do not have any document regarding the agreement of sale of ground floor portion. (vol. have the original chain of title documents of the suit property which was given to me at the time of making payment of the amount of Rs. 4.5 lakh regarding the ground floor portion and that is receipt enough for me)..........
..........I did not say any notice regarding the payment/balance amount of Rs. 3,50,000/- as full and final payment of ground floor as per oral agreement. It is correct that I have no written request to receive the balance payment of the ground floor and execute the respective document in my favour. Vol: I have made several oral requests. It is correct that I had not been given possession of the ground floor at the time of part payment. (Vol. I had been given the original chain of title documents of the suit property and possession of ground floor was to be given to me upon making payment of the balance amount of Rs. 3,50,000/-). It is correct that I did not lodge any police complaint regarding the above subject. It is wrong to suggest that I have lodge several complaints against the defendant CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 42 of 50 Date: 13.12.2023 no. 1 only to harass. It is further incorrect to suggest that I did not have a sound ground to claim the right, title and interest of the ground floor of property in question. It is wrong to suggest that I had evil eyes on the ground floor portion of the suit property........." TESTIMONY OF PW2 ".........My affidavit Ex. PW-2/A was prepared in Tis Hazair Courts on 23.10.2017. VOL. It was prepared one or two days earlier but attested on 23.10.2017.
Q. What the measures of illegal pressure and tactics against your father has been used by the defendant No.1?
A. In the months of April, May, June & July, 2012, sometimes defendants used to disconnect the electricity and water supply to the portions occupied by my father in the suit property. It is correct that I have not mentioned about these months in my affidavit. It is correct that agreement dated 23.03.2012 was executed between Mukesh Kumar and my father & brother. Again said it is between Mukesh Kumar and my brother namely Tushar. The agreement dated 11.04.2012was in the joint name of my father & brother with Mukesh Kumar. It is correct that no date is mentioned in para No.3 of my affidavit because I do not live there. Mr. Mukesh Kumar had approached the plaintiffs for sale of the ground floor built up portion of the suit property as he stated that Sh. Rajender Kumar is wanted to sell the same also. Thereafter, Mukesh Kumar had arranged talks with defendant No.1. My father had told me about this fact and thereafter, I had spoken with Mukesh Kumar also. It is correct that I have not mentioned in my affidavit regarding the above telephonic conversation. My father used his own mobile phone and got me to talk with Mr. Mukesh Kumar. The talk took place may be on 3/4.07.2012 with Mukesh Kumar. This fact is also not mentioned in my affidavit. Mukesh had told me on telephone the sale consideration amount regarding the subject suit transaction. At that time, there was no talk between me and defendant No.1. Before this agreement, sometimes when I used to visit my father at suit property, I found defendant No.1 sitting on the ground floor of the suit property and my father told me that he is the owner of the ground floor of the suit property but I had no talk with him.
I personally did not inquire from defendant No.1 specifically for the CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 43 of 50 Date: 13.12.2023 sale of ground floor portion. VOL. My father was talking with him and Mukesh. Since the defendant No.1 was creating trouble and nuisance to my father regarding electricity & water supply to the upper floor of the suit property, so after discussions with our family, we had decided to buy the ground floor portion of the suit property, in order to settle and buy peace.
I am C.A. by profession. The defendant No. 1 did not issue any receipt for payment to me. The payment was made to Mukesh Kumar. It is correct that no payment was ever made to Rajender Kumar directly by me. It is wrong to suggest that we were at advantageous position because upper floor was with us and hence, we filed a false claim. It is wrong to suggest that I have deposed falsely..........."
TESTIMONY OF PW3 "........I am doing business of medicines. Last year I filed the ITR for above Rs.20 lacs. The amount of Rs.1.50 lacs was paid in cash as it was so demanded. I do not have any receipt for the said payment of Rs.1.50 lacs, Vol. I had received a telephonic call from my father-in-law (Plaintiff No. 1) to make the said payment on his behalf. So far as I can tell, the said payment was made in connection with some property transaction at Mukundpur. Ques. To whom the amount of Rs.1.50 lacs was handed over by you?
Ans. Both Mukesh Kumar and Rajinder Kumar had come to me and I had made the payment, however, it is now over 5 years old event, so I can specifically recollect the same.
I had taken confirmation between my father-in-law and said Mukesh Kumar from my landline telephone bearing No. 27860424. No other person was present at the time of making the said payment............"
TESTIMONY OF PW4 "....... I am doing a sales job.
Ques: From whom you had purchased the First, Second and Third Floor of property bearing No. 17/1, Manav Kunj, Mukund Pur, Delhi 44?
Ans: I had purchased the same from Mukesh Kumar.
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 44 of 50 Date: 13.12.2023 It is incorrect to suggest that Mukesh Kumar has not right to sell any of the floors to any person. It is correct that one suit was earlier filed by me and my father against the defendants. It is further correct that defendant No.1 had also filed one civil suit against me and my father and others. It is correct that appeal with respect to suit filed by D-1 is pending before Ld. ADJ. It is correct that I have no written agreement/ document to show my ownership with respect to the ground floor i.e. the suit property. Voltd. I entered into oral agreement to sell with Mukesh Kumar. My father was having certain disputes with Mukesh. I have no receipt with respect to the payment made of the suit property. Voltd. Mukesh Kumar handed over to me the original papers of the suit property.
All the money transactions were done by my father and my brother and brother in law. I was only told by them about the payments made by them to Rajender Kumar when I returned back home in the evening from my office. I do not know what was the mode of payment to Rajender Kumar. It is correct that no payment was made in my presence. It is ) correct to suggest that defendants are in possession of the suit property. It is incorrect to suggest that we are taking advantage of the dispute in the property and being in possession of the remaining floors, have filed this false suit taking the false plea of oral agreement.
It is correct that the original papers of the suit property were handed over to us by Mukesh Kumar. Again said I do not know who handed over the papers as the same were handed over to my father. I do not know whether the suit property was mortgaged with Mukesh Kumar. I do not know whether this fact was known to my father and brother. I was not present when the oral agreement was entered with Mukesh Kumar. The oral agreement was entered between Mukesh Kumar and my father........"
9.1.20 On perusal of testimonies of PW2 to PW4, it is found that no concluded contract can be inferred between the parties. PW2 to PW4 are witnesses for payment of money and not witnesses for agreement to sell being executed between the plaintiffs and the defendant no. 1.
On perusal of the testimony of PW1 and PW4, it is unclear whether CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 45 of 50 Date: 13.12.2023 the purported agreement to sell was entered into between the plaintiff no. 1 and defendant no. 1 or plaintiff no. 2 and defendant no. 1 or plaintiffs and defendant no. 1. Thus, in the instant case, the plaintiff is not able to discharge his burden. It is pertinent to state that before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case, the oral testimony adduced in support of the agreement pleaded is a highly interested one. Thus, in absence of clear cut evidence for proving the terms of oral contract which is alleged to have been entered into by the plaintiffs and defendant no. 1, the plaintiff is not entitled to a decree of specific performance in his favour.
9.1.21 This court is of the considered opinion that the conduct of defendant no. 1 as pointed out by the plaintiffs is irrelevant in civil proceeding. Section 52 of the Indian Evidence Act states as under:-
"52. In civil cases character to prove conduct imputed, irrelevant.
- In Civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant."
Thus, the previous conduct / character to prove conduct, is irrelevant. Accordingly, this issue is decided in favour of the defendants and against the plaintiffs.
9.2 Whether the plaintiff is entitled for damages, in alternative as CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 46 of 50 Date: 13.12.2023 claimed?OPP.
9.2.1 The onus to prove this issue is upon the plaintiff. On perusal of testimonies of PW1 to PW4, it is evident that the payment of Rs. 4,50,000/- was made to the defendant no. 2, who has collected the same on behalf of defendant no. 1 and had also parted with the possession of the original title deeds with respect to the suit property, it can be inferred on balance of probabilities that there was some money transactions between the parties, in lieu of which, the original documents were parted by defendant no. 1 to the plaintiffs. It is highly improbable that a person would part with the custody of the original documents without received anything in return. Although, the receipt of payment is disputed by defendant no. 1, still this court from the over all facts and circumstances can safely infer that some money transaction had flown between the parties. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant.
9.3 Whether the plaintiff is entitled for decree of declaration as prayed for?OPP 9.3.1 The onus to prove this issue is upon the plaintiff. Since issue no. 9.1 is decided in favour of the defendants, this issue is also decided in favour of the defendants and against the plaintiffs.
9.4 Whether the plaintiff is entitled for decree of permanent injunction as prayed for?OPP 9.4.1 The onus to prove this issue is upon the plaintiff. Since issue no. 9.1 is decided in favour of the defendants, this issue is decided in favour CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 47 of 50 Date: 13.12.2023 of the defendants and against the plaintiffs.
9.5 Whether the suit is bad for misjoinder and non joinder of necessary parties?OPD-1.
9.5.1 The onus to prove this issue is upon the defendant no. 1. Since the defendant no. 1 did not lead any evidence, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
9.6 Whether the plaintiff has no locus standi to file the present suit?
OPD-1.
9.6.1 The onus to prove this issue is upon the defendant no. 1. Since the defendant no. 1 did not lead any evidence, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
9.7 Whether the suit is barred by principle of resjudicata?OPD-1.
9.7.1 The onus to prove this issue is upon the defendant no. 1. The defendant no. 1 did not lead any evidence to prove his case. Otherwise also, the earlier litigation between the parties were pertaining to different property. The civil suit bearing no. 437/2012 and 432/2012 were arising out of 1st, 2nd and 3rd floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension
-II, Delhi-110042, admeasuring 80 sq. yards, whereas the present litigation involves the ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi- 110042, admeasuring 80 sq. yards comprising of five rooms, one CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 48 of 50 Date: 13.12.2023 kitchen, one bathroom cum laterin. Therefore, the question of application of principle of resjudicata does not arise. Accordingly, this issue is decided in favour of the plaintiffs and against defendant no. 1.
9.8 Whether the suit is not properly valued for the purpose of court fees?OPD-1 9.8.1 The onus to prove this issue is upon the defendant no. 1. The defendant no. 1 did not lead any evidence to prove his case. Otherwise also, the claim of the defendant no. 1 is based upon the total valuation of the entire property i.e. 1st, 2nd and 3rd floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards (which is not the subject matter of the instant suit), in the present suit only ground floor of property bearing no. 17/1, Gali no. 16, Manav Kunj forming part of Khasra no. 228/1/1, situated in the Revenue Estate of Mukundpur Extension -II, Delhi-110042, admeasuring 80 sq. yards comprising of five rooms, one kitchen, one bathroom cum laterin, is involved, which is correctly valued for Rs. 8,00,000/-. The present suit is filed for seeking specific performance of agreement to sell and by virtue of Section 7(x)(a) of Court Fees Act, the court fees is liable to be paid on the consideration of the agreement, which is Rs. 8,00,000/-. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
RELIEF CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 49 of 50 Date: 13.12.2023
10. The suit of the plaintiffs is decreed and the plaintiffs are entitled to a recovery of Rs. 4,50,000/- along with interest @ 12% per annum from the date of filing the suit till its actual realization.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
SHIVALI Digitally signed by
SHIVALI BANSAL
Announced in open BANSAL Date: 2023.12.13
17:09:41 +0530
Court on 13.12.2023 Shivali Bansal
Additional District Judge-03
North District, Rohini Courts, Delhi
CS No. 59145/16 Krishan Lal Ahuja Anr. Vs. Rajinder Kumar Ors. Page No 50 of 50