Delhi District Court
Civil Suit No: 110/12 (Old Number) vs Sh. Shahnawaz Alam on 16 November, 2018
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA
COURTS, DELHI
Presided By : Sh. Sudhir Kumar Sirohi, DJS
Civil Suit No: 110/12 (old number)
New No. 7540/16
Shabnam Parveen
W/o Sh. Mazahir Hasan
R/o C3, Gali no. 4, Chandu Nagar,
Karawal Nagar Road, Bhajanpura, Delhi ... Plaintiff
Versus
Sh. Shahnawaz Alam
S/o Sh. Fasihullah Khan
R/o Presently residign in one room at
Ground Floor of H. No. F 573, Gali no. 18 B,
Khajuri Khas, Delhi 110094. ... Defendant
SUIT FOR POSSESSION, PERMANENT
INJUNCTION AND MESNE PROFITS/DAMAGES
DATE OF INSTITUTION : 16.04.2012
DATE OF FINAL ARGUMENTS : 06.09.2018
DATE OF DECISION : 16.11.2018
JUDGMENT
1. The plaintiff had filed the present suit against defendant. By way of this suit, the plaintiff has sought reliefs of possession, permanent injunction, mesne profits and damages. The exact prayer made in the plaint, is reproduced below: "It is therefore, most respectfully prayed that a decree for possession be passed in favour of the plaintiff and Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 1 of 23 against the defendant by directing the defendant and his associates, agents and any other person acting for and on behalf of the defendant in respect of one room on the ground floor alongwtih common entitlement to use and utilize other common areas on ground floor besides kitchen, Latrine and Bathroom of property bearing no. F 573, Gali no. 18 B, Khajuri Khas, Delhi 94 as shown red colour in site plan.
To pass a decree perliminary decree whereby directing an inquiry into the mesne profits and damages for use and occupation of the suit property by the defendant at the rate of Rs. 5, 000/ per month w.e.f. 01.04.2012 till date of delivery of the possession of the suit property in favour of the plaintiff and against the defendant.
To pass a final decree for the consolidated amount of mesne profits and damages in favour of the plaintiff and against the defendant as may be ascertained/arrived at, after the inquiry into the mesne profits/damages for the use and occupation of the suit property by the defendant.
Order that an interest at the rate of 24 % per annum on the amount found due and payable by the defendant to the plaintiff be also awarded in favour of the plaintiff and against the defendant w.e.f.
01.04.2012 till the date of handing over the Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 2 of 23 possession of the suit property and its realization. Interest pendetelite may also be awarded.
Award the cost of the suits is favour of the plaintiff and against the defendant.
To pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, employees, survives, executors, attorneys, assigns and any other person acting for and on behalf of the defendant thereby restraining them from transferring, alienating or creating any third party interest in the suit property. Any other/further relief/order which this Hon'ble Court may deems fit and proper in the circumstances of the case may also be granted/passed in favour of the plaintiff and against the defendant."
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint that defendant is the real younger brother of the plaintiff, though the defendant has been residing at the house b earing no. 3236, Turkmaan gate, Delhi 110006 for all practical purposes but he has been occupying one room on the ground floor alongwith common entitlement to use and utilize other common areas on ground floor besides kitchen, Latrine and Bathroom of property bearing no. F 573, Gali no. 18 B, Khajuri Khas, Delhi 110094 of which the plaintiff is the lawful owner of the property in question measuring 91 sq. yards consisting three shops, two rooms, kitchen, latrine bathroom with one room constructed on the first floor Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 3 of 23 alongwith roof rights upto sky, situated at village Mirpur Turk, in the abadi of Chang Bagh Khajuri Khas, Illawa Shahdara, Delhi 94 now known as F 573 Gali no. 18 B, Khajuri Khas, Delhi 110095 (hereinafter called as suit property). It is further averred by plaintiff that the suit property was constructed in the present shape by the plaintiff after having purchased a plot of land measuring 91 sq yards on 02.05.1996 from Sh. Ramzani Khan for a valuable consideration vide sale documents like registered GPA, Agreement to sell, affidavit, receipt of consideration, registered will.
3. It is further averred that there were two shops, three rooms and kitchen latrine bathroom with boundary walls on the ground floor, and one room on the first floor. Later on, one of the room of the ground floor was also started to be used as a shop and therefore, presently also there are three shops and two rooms besides common kitchen, latrine and bathroom on th ground floor and one room on the first floor. After constructing the plot, the plaintiff had also installed the electricity meter besides installing other basic amenities and let out the same to different tenants. With passage of time, many tenants were inducted and thereafter they vacated their respective portions and this process continued to be so. At present there are two tenants on the first floor and besides them there are tenants in respect of aforesaid three shops on the ground floor. The defendant is in occupation of one of the room on ground floor with common right to use and utilize the common space on the ground floor as well as kitchen, latrine and bathroom with the occupant of other room on the ground floor. Since there were different tenants in the aforesaid premises and therefore, this was felt that it would not be possible for the plaintiff to manage the property and to collect rent from tenants after her marriage, therefore, on 27.04.2004 the plaintiff had executed a registered Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 4 of 23 GPA in favour of the defendant thus entitling him to manage the property and to receive and recover rent from the tenants and to take other ancillary actions.
4. It is further averred by the plaintiff that defendant was appointed as the attorney by the plaintiff since she being lady and about to be married, therefore dealing with tenants for her had become a little difficult and hence the defendant had successfully induced the plaintiff to execute aforesaid GPA in his favour on the premises that the defendant will not commit any breach of trust and will continue to hand over all rental income to the plaintiff. Since the plaintiff was about to be married and therefore, considering other future prospects coupled with defendants representations and that the defendant is the real younger brother of the plaintiff, the plaintiff executed GPA in favour of the defendant thus entitling him to recover rent in particular.
5. It is also further averred by plaintiff that there was tenant in one of the room on the ground floor who had started posing threat of not vacating his part of tenanted premises i.e. one room on ground floor with common space and common kitchen, latrine and bathroom. After facing lot of difficulties the plaintiff had paid substantial amount to him in lieu of vacating the said room. Soon thereafter in the month of January, 2008 the defendant had approached the plaintiff and represented that he may be allowed by the plaintiff to occupy said one room on the ground floor stating that keeping of possession of said one room would strengthen the position and ownership of the plaintiff and in that event no tenant would dare to pose any such threat to the plaintiff. The plaintiff did not smell the guilty intentions of the defendant and allowed him to live and occupy one room on the ground floor with Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 5 of 23 common right to use the open space on ground floor besides common latrine and bathroom i.e. the suit property as her licensee. It is further submitted that the plaintiff never charged or asked for any use and occupation charges from the defendant for the use and occupation of the suit property. However the defendant continued to live and reside for all practical purposes alongwith his family at house no. 3236, Turkman Gate Delhi. It is further averred that in the month of May, 2008 another room on the ground floor was also vacated by the then tenant and pursuant to vacation thereof the plaintiff had allowed another brother namely Sh. Mehtab Alam to live and occupy the other room on the ground floor and common use of kitchen, latrine bathroom etc. and also of open space on first floor.
6. It is also averred by the plaintiff that following to introduction of Mehtab Alam as the occupant in respect of another room on the ground floor, the defendant seemed to have developed grudges and surprisingly, thereafter, the defendant stopped depositing the rental income with the plaintiff, despite various requests and demands in this regard. Hence, being compelled and perturbed with his actions of committing criminal breach of trust, the plaintiff had decided to cancel the GPA, however, taking lenient view had choose not to pursue criminal actions against the defendant considering the relationship of brother and sister. Accordingly, on 19.02.2009, the plaintiff had issued a legal notice through her advocate to show cause as to why the said GPA dated 27.04.2004 not be canceled. The said legal notice was duly served but there was nothing to say from the defendant's side against the proposed revocation of GPA, the defendant did not respond to the same. On 08.05.2009 the plaintiff being left with no other alternate remedy had revoked the GPA dated 27.04.2004 vide a registered deed of Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 6 of 23 revocation of GPA executed on 24.02.2009 duly registered with Registrar IV, Seelampur on 08.05.2009 as registration no. 667 in Additional Book no. 4, Volume No. 10, 709 page no. 149 to 151.
7. It is further averred that after the revocation, the plaintiff had requested and demanded the defendant to vacate the aforesaid room many a times, but the defendant has been avoiding to vacate the same on one pretext or other. Then on 02.02.2012 when the plaintiff had asked the defendant to vacate the aforesaid room, to utter surprise, the defendant not only clearly refused to vacate the same but also threatened to sell the aforesaid house on the basis of above detailed GPA which was executed in his favour for management of aforesaid property. The defendant's aforesaid conduct is highly condemnable and objectionable, illegal, contrary to law, fact and record and therefore, the plaintiff do not want to keep him as her license any further in respect of aforesaid room in his possession.
8. It is further averred by the plaintiff that the plaintiff had issued a legal notice dated 08.02.2012 thereby demanding the defendant to vacate the aforesaid room and to handover the physical possession of aforesaid room and other common areas as detailed hereinabove in vacant condition to the plaintiff within a period of fifteen days from the date of receiving of the said legal notice or latest by 29.02.2012, failing which the defendant shall be liable for mense profits, damages and occupation charges at the rate of Rs. 5, 000/ per month for further use and occupation for the use of said premises with effect from 01.03.2012 which surely shall be unauthorized use and illegal occupation. Defendant did not pay any heed to the said demand/legal notice as despite receiving of the said legal notice dated 08.02.2012 neither the Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 7 of 23 defendant vacated the premises and nor even responded to the same. The plaintiff could have filed the present suit following to non response of earlier legal notice dated 08.02.2012, since the plaintiff did not receive any acknowledgment qua the receipt of said legal notice, therefore, as an abundant precaution, as advised, the plaintiff had issued a fresh legal notice dated 14.03.2012 to the defendant thereby demanding the defendant to vacate the licensed premises within a period of fifteen days from the date of legal notice. The said legal notice was sent on 16.03.2012 and was duly served upon the defendant. The plaintiff is in receipt of AD card duly signed by the defendant. Defendant has neither vacated the suit property nor has replied the said legal notices. Therefore, suit has been filed by plaintiff.
9. Summons were issued to defendant vide order dated 16.04.2012 thereupon defendant filed his written statement stating the suit is filed on false ground. The true facts are that defendant is the absolute owner of the suit property and defendant has purchased the suit property which consists the suit property from the plaintiff for a lawful consideration of Rs. 1, 20, 000/ on 27.04.2004 and the plaintiff executed necessary sale documents of the said property in favour of the defendant i.e. agreement to sell, registered general power of attorney etc. all dated 27.04.2004 and in performance of contract the plaintiff also handed over the possession of the said property to the defendant and since then defendant is in possession of the suit property and he is the absolute owner of the property in question and defendant is in physical possession of the suit property and rest of the portion of the suit property is occupied by the tenants under the landlordship and ownership of the defendant. One brother of the defendant namely Mehtab Alam also living in one room at ground floor as licensee of the defendant as such after the Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 8 of 23 sale of the said property the plaintiff has no right, title or interest with the suit property. Since the last one year the elder brother of the defendant namely, Aftab Alam and the plaintiff both were continuously requesting the plaintiff to resale the said property to the plaintiff and brother Aftab Alam but defendant refused to sell the property in question. Then the plaintiff and Aftab Alam raised a new demand from the defendant to give them loan of Rs. 10 lacs but the defendant showed his inability to give such a huge amount of Rs. 10 lacs as loan to them.
10. It is further averred by defendant that on 30.10.2011 there was a birthday function of elder daughter of the defendant at the residence of defendant and in the birthday function several guests, relatives gathered then plaintiff as well Aftab Alam also came to attend the function on the said date, in the function the defendant and his wife were busy in arrangements. Family of defendant consists the defendant himself, his wife and two minor daughters only. As the defendant and his wife were busy in entertaining the guests the plaintiff and Aftab Alam took undue advantage of the situation and they stole the entire previous chain of title deeds and will, payment receipt dated 27.04.2004 executed in favour of defendant by the plaintiff of the said property from the house of the defendant as the plaintiff and Aftab Alam were fully aware that where the important documents etc. are kept by the defendant because plaintiff and Aftab Alam are well educated and defendant being their brother most of his written work used to get done by them. The defendant came to know the facts of the theft committed by plaintiff and Aftab Alam, when he received false legal notices dated 08.02.2012 and 14.03.2012 of plaintiff on which the defendant searched the chain of title deeds. They also threatened the defendant that the chain of all property documents are in Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 9 of 23 their possession and again pressurized the defendant either to sale the said property to them or give them Rs. 10 lacs. They clearly refused to return all the documents of the property in question and on this defendant on made written complaint to the DCP, NE and SHO Khajuri Khas against the illegal act of plaintiff and Aftab Alam. It is further averred that plaintiff has filed a false case against defendant with malafide dishonest intention in collusion and conspiracy of brother Aftab Alam. It is further averred that defendant has never been a licensee in the suit property and is residing in the suit property in the capacity of owner.
11. On the aforesaid pleadings of the parties, the following issues were framed by the Ld. Predecessor of court on 30.08.2012: A. Whether the defendant for a lawful consideration purchased the suit property from the plaintiff by way of a registered GPA and other documents? OPD B. Whether the registered GPA dated 27.04.04 executed by the plaintiff in favour of the defendant was a sham documents? OPP C. Whether the suit is bad for undervaluation of the suit property? OPD D. Whether the plaintiff is entitled to the decree of possession as prayed for in para no. a of the prayer clause? OPP Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 10 of 23 E. Whether the plaintiff is entitled to decree of mesne profits and damages as prayed for? OPP F. Whether the plaintiff is entitled to the relief of the interest, if any, and as prayed for? OPD G. Cost H. Relief."
12. During trial plaintiff has examined herself as PW 1 and filed her evidence by way of affidavit Ex. PW 1/A and she relied upon the following documents i.e.
1. Registered GPA in favour of plaintiff with respect to suit property Ex. PW 1/1,
2. Agreement to sell in favour of plaintiff with respect of sit property is Ex. PW 1/2,
3. affidavit of earlier owner in favour of plaintiff with respect to suit property is Ex. PW 1/3,
4. receipt of consideration of suit property is Ex. PW 1/4,
5. registered will of earlier owner in favour of plaintiff with respect to suit property is Ex. PW 1/5,
6. electricity bill of suit property is Ex. PW1/6 collectively,
7. rent receipts issued by the plaintiff in favour of Sarfaraz with respect to the one shop and one room is Ex. PW 1/7 collectively, Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 11 of 23
8. rent receipts issued by the plaintiff in favour of Ikram with respect to the one shop is Ex. PW 1/8 collectively,
9. rent receipts issued by the plaintiff in favour of Sadiq with respect to the one shop is Ex. PW 1/9 collectively,
10. the registered GPA executed by plaintiff in favour of defendant dated 27.04.2004 with respect to suit property is Ex. PW 1/10,
11. Agreement to sell executed by plaintiff in favour of defendant with respect to suit property dated 27.04.2004 is Ex. PW1/11,
12. site plan of the suit property is Ex. PW 1/12,
13. the registered deed of revocation of GPA dated 27.04.2004 executed on 24.02.2009 is Ex. PW1/13,
14. legal notice for termination of license by the plaintiff to the defendant dated 08.02.2012 is Ex. PW 1/14 and postal receipt is Ex. PW 1/15
15. legal notice for termination of license by the plaintiff to the defendant dated 14.03.2012 is Ex. PW 1/16 and postal receipt dated 16.03.2012 is Ex. PW 1/17,
16. the acknowledgement card is Ex. PW1/18. She was cross examined by other party.
13. PW 2 Mr. Aftab Alam has filed his evidence by way of affidavit which is Ex. PW 2/A and relied upon the documents already exhibited i.e. Ex. PW 1/1 to Ex. PW 1/5, Ex. PW 1/10 to Ex. PW 1/12 and Ex. PW 1/13. He was cross examined by defendant.
14. PW 3 Mr. Mehtab Alam has filed his evidence by way of affidavit which is Ex. PW 3/A and relied upon the documents already Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 12 of 23 exhibited i.e. Ex. PW 1/1 to Ex. PW 1/5, Ex. PW 1/10 to Ex. PW 1/12 and Ex. PW 1/13. He was cross examined by defendant.
15. PW 4 Sh. Sarfaraz Khan was the son of Sh. Mehmood Ali and he has filed his evidence by way of affidavit which is Ex. PW 4/A. He was cross examined by defendant.
16. PW 5 Sh. Mohd. Sadiq was the son of Sh. Mohd. Akbar and he has filed his evidence by way of affidavit which is Ex. PW 5/A. He was cross examined by defendant.
17. During testimony PW 7 Smt. Janaki, LDC, office of SR IV, Seelampur, Nand Nagri, Delhi brought the record i.e. the Revocation Deed of GPA dated 24.02.2009 executed by Smt. Shabnam Parveen in favour of Shahnawaz Alam which was registered in our office vide registration no. 667 Addl. Book no. 4 Vol. no. 10709 page no. 149 to 151 dated 08/05/2009 already Ex. PW 1/13. He was cross examined by defendant.
18. Thereafter in defence, defendant had examined himself as DW 1 Shehnawaz Alam and has filed his evidence by way of affidavit which is Ex. DW 1/A and relied upon the documents i.e. GPA dated 27.04.2004 executed by plaintiff in favour of defendant Ex. DW 1/1 (already exhibited PW1/10), Agreement to Sell dated 27.04.2004 executed by plaintiff in favour of defendant Ex. DW 1/2(already Ex. PW 1/11), complaint dated 09.04.2012 against the plaintiff and Aftab Alam received in the office of DCP, NE, District Ex. DW 1/3, Reply to Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 13 of 23 the notice dated 08.02.2012 and 14.03.2012 Ex. DW 1/4, postal receipts of notice are Ex. DW 1/5 and DW 1/6. He was cross examined by plaintiff.
19. DW 2 Sh. Subhash Chand during his testimony has brought the summoned i.e. the record of the electricity connection vide CA No. 101320346, CRN No. 1250131745 which is in the name of Mr. Mehtab Alam installed in the premises no. F573, Gali no. 18 B,Khajuri Khas, Delhi 110094.
20. DW 2 A Sh. SI Narender Singh (renumbered at time of judgment) during his testimony, he has deposed that the record from 01.01.2012 to 31.12.2012 has already been destroyed and placed copy of the order as Mark A issued by ACP, HQRS on behalf of DCP North East. He was cross examined by the plaintiff.
21. DW 3 Sh. SI Balbir during his testimony deposed that the record of complaint given by the defendant has been destroyed and to this effect, he had brought the destroying order issued by the DCP, North East District, Delhi and the order of the DCP regarding destroying of files prior to 31.12.2012 is Mark DW 3/A. He was cross examined by the plaintiff.
22. I have heard Sh. Shahid Ali, Ld. Advocate for the plaintiff and Mr. F. Khan, Ld. counsel for the defendant and considered the record.
Civil Suit No. 110/12Shabnam Praveen Vs. Shahnawaz Alam Page No. 14 of 23 Discussion
23. Issue no. A, B and D will be decided by common discussion as all are inter related to each other.
The onus to prove issue no. A is on defendant while the onus to prove issue no., B and D is on plaintiff.
Plaintiff has deposed that she is owner of the suit property and she executed registered GPA dated 27.04.2004 (Ex.PW1/10) and agreement to sell dated 27.04.2004 (Ex.PW1/11) in favour of defendant as she was getting married and defendant was her only brother who was bachelor at that time and in order to save her property and collect rent she executed the above said documents in favour of the defendant . Plaintiff has also deposed that the aforesaid documents were executed without consideration and she cancelled the GPA of plaintiff vide registered deed of revocation of GPA dated 24.02.2009 (ex.PW1/13) . Plaintiff has also deposed that she also allowed defendant to live as licencee in one room on the ground floor and the said licence was revoked by the plaintiff by way of legal notice dated 14.03.2012 (Ex.PW1/16).
24. Defendant on the another hand has deposed that he purchased the suit property from plaintiff vide registered GPA, agreement to sell, Will , payment receipt all dated 27.04.2004 for consideration of Rs. 1.20 lakhs and came in physical possession of the suit property. Defendant has also deposed that Will, payment receipt has been stolen by the plaintiff on 30.10.2011 on the occasion of birthday of his daughter. Defendant has also deposed that the tenant Iqkram, Sadiq, Sarfraz are his tenant in the suit property and are paying the rent to the defendant directly. Defendant also deposed that he replied the notice of the plaintiff dated 14.03.2012 vide his Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 15 of 23 reply dated 11.04.2012 (Ex.DW1/4). Defendant has also deposed that he has also lodged complaint with police regarding the dishonest intention of plaintiff and brother Aftab Alam vide complaint dated 09.04.2012 (Ex.DW1/3).
25. It is not the disputed position that plaintiff was the owner of the suit property and now the defendant is claiming that he purchased the suit property from plaintiff and plaintiff is claiming that she did not sell he suit property to the defendant rather inducted him as licencee.
26. Plaintiff has admitted that she executed document Ex.PW1/10 registered power attorney dated 27.04.2004 in favour of defendant and Agreement to sell dated 27.04.2004 (Ex.PW1/11) in favour of defendant. Plaintiff has alleged that these documents are sham document and were prepared in order to manage property by defendant as plaintiff was getting married. In Ex. PW1/11 agreement to sell it has been mentioned that "the first party has agreed to sell the above property to the second party and has already being received a sum of Rs. 1,20,000/ from the second party as the total cost of the said property, vide a separate receipt executed on today at Delhi".
27. The said agreement to sell Ex.PW1/11 is not registered as per Section 17 of the Registration Act, 1908 and therefore, the defendant is not entitled to the benefit of Section 53 A of Transfer of Property Act as per Section 17 (1A) of the Registration Act.
28. Now, the question arise whether the consideration was paid or not by the defendant as the plaintiff has alleged that no consideration was paid by Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 16 of 23 the defendant while defendant on the another side has alleged that he paid the consideration amount of Rs. 1.20 lacs. Defendant during his cross examination has deposed that "I had purchased the suit property from the money saved from my services in Saudi Arebia. The money was in my bank. The money I had paid to the plaintiff was given from the money kept at my residence. I am not a Income Tax assessee I do not have any documentary evidence regarding the money that was kept in my house. I have paid the money on 27.04.2004 in presence of Aftab Alam, Nayab Ahmed and Fazal Mohammad.
29. Plaintiff has also averred that defendant was not in India when the documents Ex. PW1/10 and Ex. PW11 were executed. Defendant during his cross examination has averred that " I have brought my passport. (it has been noted that the passport brought by the witness has been issued on 28.05.2007 and does not reflect upon his presence in India on 27.04.2004. The first and the last page of the passport have been kept on record as Mark P1 and P2). My previous passport was surrendered upon the issue of this passport. It is wrong to say that on 27.04.2004, I was not in india and I have deliberately not brought my previous passport. (At this stage, the witness is confronted with the GPA dated 27.04.2004, Ex.PW1/10, and Ex.DW1/1). It is correct that this document does not bear my signature anywhere including the photograph. I do not know if in the office of the subRegistrar (Assurances) a register is maintained and the signatures and thumb impression of parties seeking to register a document are taken in the said register I do not remember if I signed any register in the office of Sub Registrar on 27.04.2004. it is wrong to say that I had not gone to the office of Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 17 of 23 SubRegistrar on 27.04.2004 and there are no signature of mine in any register maintained there."
30. From the abovesaid deposition of DW1 it is clear that the DW1 has failed to bring on record that he was in India on 27.04.2004 as he failed to produce his earlier passport and brought on record a new passport. Passport office does not keep old passport at the time of issuing new passport moreover, if the previous passport was surrendered then the surrender certificate of previous passport or witness from the passport department not called by the defendant to show that his earlier passport was surrendered. Defendant himself admitted that the GPA Ex.PW1/10 does not bear his signature neither on his photograph nor any of its page. The agreement to sell Ex.PW1/11 is also dated 27.04.2004 and the same bears the signature of the defendant as second party. It means that the defendant signed it later on as the defendant has failed to show that he was in India on 27.04.2004. The next question comes into picture if the defendant was not in India then who paid the consideration. Defendant has deposed that he paid the consideration but he himself contradicted him regarding the consideration as on one side he said that his money was saved in bank and on another side he said that he gave the amount of Rs. 1.20 lakhs from the money kept in his house on 27.04.2004. Defendant also deposed that he paid the consideration in presence of Aftab Alam, Nayab Ahmed and Fazal Mohammad. Defendant have taken defence that the plaintiff is collusion with Mr. Aftab Alam but plaintiff has also not called Nayab Ahmed and Fazal Mohammad as a witnesses for payment of consideration, accordingly, the defendant has failed to show that he paid the consideration to the plaintiff on 27.04.2004.
Civil Suit No. 110/12Shabnam Praveen Vs. Shahnawaz Alam Page No. 18 of 23
31. For an agreement to become a contract there must be consensus ad idem but in the present matter there was no consensus ad idem because the defendant was not in India at the time of execution of agreement to sell Ex. PW1/11. Moreover, the agreement to sell Ex.PW11 is not registered as per Section 17 (1A) of Registration Act. Therefore, the Section 92 of Indian Evidence Act is not applicable on Ex.PW1/11.
32. The defendant himself has deposed in para 5 of his affidavit Ex.DW1/A that Ikram and Sadiq are tenants under the landlordship of defendant with respect to two shops while Sajid and Sarfraz are tenant in two different rooms situated at the first floor of the suit property. Plaintiff has called Mr. Sarfraz Khan as PW4, Mohd Sadiq as PW5 and Mohd Ikram as PW6 and all these witnesses have deposed that they are tenants of plaintiff. None of the tenant has deposed that defendant is their landlord. The remaining tenant Mr. Sajid which is not called by the plaintiff during her evidence has also not been called by the defendant to show that Mr. Sajid is tenant of the defendant.
33. In Transfer of property Act, the sale has been defined u/s 54 and as per same the sale of immovable property above Rs. 100 can be made only by a registered instrument and the registered GPA does not confirm any title on the defendant in the light of the fact that agreement to sell dated 27.04.2004 Ex.PW1/11 is not registered after the amendment of 2001 and insertion of Section 17(1A) Registration Act.
34. The defendant as discussed above has also not been able to prove that the consideration amount was given by him, therefore, the Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 19 of 23 defendant was not having any interest in the suit property for applicability of Section 202 of Indian Contract Act 1872 and the plaintiff way of Ex.PW1/13 revoked general power of attorney of the defendant vide registered document dated 24.02.2009.
35. Defendant has also taken the defence that on the birthday function of his elder daughter plaintiff and his brother Mr. Aftab Alam attended the said function and they stole the previous chain of titled deeds, Will and payment receipts dated 27.04.2004 executed in favour of defendant by the plaintiff with respect to the suit property. Defendant has also relied upon one complaint which was filed by him with the DCP NorthEast Seelampur Ex.DW1/3 dated 09.04.2012 but the said complaint was lodged after the legal notice of the plaintiff dated 08.02.2012 Ex.PW1/14. Therefore, it seems that the defendant lodged a complaint just in order to create a defence.
36. Plaintiff has also sent a legal notice dated 08.02.2012 and 14.03.2012 (Ex.PW1/14, Ex. PW 1/16 respectively ) to the defendant terminating his licence and the defendant has also replied the said legal notice vide his reply dated 11.04.2012 (Ex.PW1/D1). In view of the discussion above the plaintiff has established on the basis of preponderance of probabilities that she executed the document Ex.PW1/10 i.e. general power of attorney and Ex.PW1/11 agreement to sell for better management of the property to defendant as defendant was the only unmarried brother at the time of marriage of plaintiff when the abovesaid documents were executed and documents Ex. PW 1/10 and Ex. PW1/11 (i.e. General Power of Attorney dated 27.04.2004 and agreement to sell dated 27.04.2004) are sham documents. Accordingly, the defendant has failed to discharged the onus of Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 20 of 23 issue no. A while plaintiff has discharged the onus of issue no. B and D and issue no. B and D are decided in favour of plaintiff and against the defendant.
37. Issue no. C Whether the suit is bad for under valuation of suit property?OPD The onus to prove this issue was on defendant but defendant has not led any evidence with respect to the said issue and in light of the fact that plaintiff has been able to prove that defendant was the licencee and plaintiff allowed defendant to live in one room as his brother without licencee fees and with permissive possession, accordingly the issue is decided against the defendant.
38. Issue no. E whether the plaintiff is entitled to the mesne profit and damages as prayed for? OPP The onus to prove this issue was on plaintiff and plaintiff vide Ex.PW1/16 legal notice dated 14.03.2012 terminated the licence of defendant and the same legal notice was also replied by the defendant vide replied dated 11.04.2012 (Ex.PW1/D1). Plaintiff has called his tenants PW4, PW5 and PW6 as witnesses. PW4 Mr. Sarfraz Khan has deposed that he is tenant with respect to one shop at ground floor and one room on 2nd floor @ Rs. 1600/ per month, PW5 Mohd.Sadiq has deposed that he is tenant with respect to one shop on ground floor @ 800 per month while PW6 Mr. Ikram has deposed that he is possession of shop on the ground at the monthly rent of Rs. 800/ per month. As per plaintiff the defendant was licencee of one room on the ground floor, therefore, as per deposition of PW4 with respect to shop and room, in comparison to deposition of the PW5 and PW6 with respect to shop, its shows that the room on the ground floor is fetching rent of Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 21 of 23 Rs. 800 per month. Therefore, the plaintiff is entitled Rs. 800 per month w.e.f. 01.04.2012 till delivery of possession of suit property. Accordingly, issue is decided in favour of plaintiff.
39. Issue no. F Whether the plaintiff is entitled relief of interest, if any, and as prayed?OPP This onus to prove this issue is on plaintiff and plaintiff has sought interest @ 24 % per annum but bank rate interest @ 6% per annum will suffice the interest of justice. Accordingly, the issue is decided.
40. Issue No. G Cost As the plaintiff is able to prove his case, therefore, the plaintiff is also entitled to the cost of the proceeding from the defendant. Accordingly, the said issue is decided.
RELIEF
41. In view of the abovesaid discussion, the suit of the plaintiff is decreed and the decree of possession is passed in favour of plaintiff and against the defendant or any person acting on behalf of defendant with respect to one room on the ground floor alongwith common entitlement to use and utilize other common areas on the ground floor besides kitchen, latrine and bathroom of the property bearing no. F573, gali no. 18 B, Khajuri Khas, Delhi 110094 as shown in the red colour in the site plan Ex. PW 1/12. Decree of mense profit and damages for use and occupation of the suit property by the defendant has been passed in favour of plaintiff and against the defendant at the rate of Rs. 800/ per month with effect from 01.04.2012 till Civil Suit No. 110/12 Shabnam Praveen Vs. Shahnawaz Alam Page No. 22 of 23 delivery of actual possession of the suit property alongwith pendentelite and future interest @ 6 % per annum. Decree of permanent injunction is also passed in favour of plaintiff and against the defendant restraining the defendant, his agents, employees or any other person acting for and on behalf of defendant from transferring, alienating or creating third party interest in the suit property. Plaintiff is also entitled to the cost of the proceedings . After payment of deficient court fees, if any, decreesheet be prepared. File be consigned to record room after due compliance.
Announced in open Court (Sudhir Kumar Sirohi)
today on 16.11.2018 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Digitally signed
by SUDHIR
KUMAR
SUDHIR SIROHI
Location:
KUMAR Shahdara
Karkardooma
SIROHI Courts, Delhi
Date:
2018.11.16
16:40:53 +0530
Civil Suit No. 110/12
Shabnam Praveen Vs. Shahnawaz Alam
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Civil Suit No.
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