Delhi District Court
R/O 86 vs Shri Man Mohan Singh on 7 December, 2017
IN THE COURT OF SHRI VISHAL SINGH, ADDITIONAL
DISTRICT JUDGE 06: CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
New CS No. 11449/16
IN THE MATTER OF:
Mrs. Krishna Pahuja
Wife of Shri Inder Parkash Pahuja
R/o 86, Banarsi Dass Estate,
Lucknow Road, Delhi.
.......... PLAINTIFF
VERSUS
Shri Man Mohan Singh
S/o Shri Inder Singh
R/o B1/2, Safdarjung Enclave,
New Delhi.
.....DEFENDANT
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 1/36
Other Details :
Date of Institution : 23.10.1986
Date of Reserving Judgment : 24.11.2017
Date of Judgment : 07.12.2017
JUDGMENT
1. The plaintiff Smt. Krishna Pahuja has filed a suit for possession against the defendant Sh. Man Mohan Singh (hereinafter referred to as the "defendant"). 2(a) The case of the plaintiff in brief is that the plaintiff is perpetual lessee of rights in plot no. 2 measuring 450 sq. yards in Block B1 in the layout plan of Safdarjung Development Residential Scheme, now known as Safdarjung Enclave, New Delhi through DDA vide perpetual lease dated 12.06.1967 registered in the office of SubRegistrar as document no. 3990 on 27.06.1967 (hereinafter referred to as the "suit property") by virtue of which, the plaintiff became owner.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 2/36 2(b) As per plaint, since the plaintiff did not have the requisite expertise, knowledge and time to personally construct a building on the said plot, she employed the defendant as contractor to construct a single storey residential house on the suit property regarding which a written agreement was executed between her and the defendant on 09.10.1974, which was registered in the office of SubRegistrar vide Vol. No. 3415 on 10.10.1974. In pursuance of the construction agreement, the parties conducted following transactions: i. Defendant deposited a sum of Rs.70,000/ with the plaintiff as security amount to fulfill the terms of agreement of construction. This amount was refundable with interest after completion of construction of building.
ii. Plaintiff disclosed the rough plan of the building to be constructed and discussed with the defendant about the material to be used in construction. Thereafter, first party handed over New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 3/36 the vacant and peaceful possession of the suit property to the defendant for construction of the building.
iii. The defendant preassessed the cost of the single storey building to be constructed on the suit plot as Rs.1 lakh and the plaintiff accepted the estimation of cost.
iv. Defendant was to obtain completion certificate from the concerned department and serve a notice to plaintiff about completion of building and receipt of completion.
v. Plaintiff agreed to pay 1/4th of the total cost as labour charges and profit to the defendant vi. Plaintiff agreed to refund the security amount with interest and cost of building alongwith labour charges and profit at preassessed rate to the defendant within two years from receipt of notice of completion from the defendant.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 4/36
vii. It was agreed that the defendant shall remain in actual possession of the suit plot and building constructed thereon till plaintiff paid all the above mentioned dues to the defendant.
2(c) As per plaint, the defendant vide his letter dated 29.09.1978 informed the plaintiff that the aforesaid construction was complete and the occupancy certificate was received from DDA and as such, the plaintiff was to make necessary arrangement to take possession of the same after making requisite payment to the defendant as per agreement of construction dated 09.10.1974. Thereafter, the plaintiff inspected the premises, but was surprised to notice that instead of constructing a single storey building, the defendant constructed 2 and ½ storeys on the suit plot and, though, she was ready to pay the amount initially agreed upon between her and the defendant, the defendant refused and demanded that the plaintiff was also to pay him the cost of construction of the first floor and barsati floor. The plaintiff never asked the defendant to New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 5/36 raise the construction except that of single storey and so, she was not liable to pay any amount for rest of the construction raised by the defendant without her permission.
2(d) The plaintiff alleged that the defendant was not ready and willing to deliver her the possession of the building though the plaintiff was ready to perform her part of agreement and the plaintiff even tried to get the matter amicably settled for which she offered the defendant to receive reasonable cost of construction, but settlement did not materalize. 2(e) Thereafter, the plaintiff sent a notice dated 26.09.1981 calling upon the defendant to deliver her vacant possession of the building on receiving a total sum of Rs.3,28,800/ which included cost of construction of first floor and barsati floor failing which the plaintiff asked the defendant for handing over the vacant possession of the property to her and on receiving notice, the defendant contacted the plaintiff to get the valuation determined New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 6/36 from his own Architect and on receiving such valuation to deliver its possession to the plaintiff.
2(f) The plaintiff submitted that thereafter, on various occasions, she enquired from the defendant as to whether he got the valuation determined or not, however, though the defendant kept on assuring her, he did not deliver her the possession of the building. Thereafter, the plaintiff sent another notice dated 25.04.1984 whereby she asked the defendant to deliver vacant possession of the building on receiving of the payment and though, the defendant promised, he did not deliver the possession whereupon another notice in the month of March, 1986 was sent by the plaintiff to the defendant with respect to the same, however, the defendant did not deliver possession of the building.
2(g) The plaintiff contended that she was ready and willing to perform her part of contract, but the defendant did not come forward to honour the same.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 7/36
The plaintiff has prayed for decree for possession of building raised on the suit property in her favour on payment of Rs.4,25,000/ to defendant alongwith cost of the suit. 3(a) Upon receipt of summons, the defendant filed written statement. He took the preliminary objection of suit being barred by limitation period. He took the objection that plaintiff neither properly valued the suit for the purpose of court fees and jurisdiction nor paid proper court fees thereon on the basis of market value of the suit property.
3(b) On merits, the defendant averred that the real transaction between the parties was of outright sale, whereas, the agreement of construction and other agreements were drafted simply to avoid the execution of sale deed since plaintiff was herself liable to obtain prior permission from DDA to sell the suit property to defendant. As per written statement, the plaintiff sold the suit property to him for total consideration amount of New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 8/36 Rs.70,000/, which was camouflaged as a security deposit in the construction agreement.
3(c) As per written statement, the defendant is not a contractor by profession; he is a professor and head of the Centre for Science Education, Nehu, Bijni Campus, Shillong. He is a Ph.D. from Kurukshetra University and holds a number of special qualifications and earned various awards. He completed MA from Kurukshetra University in the year 1972. In 1974 he joined Ph.D. in the same university and completed it in the year 1977. In the year 1974, defendant's father desired to purchase a plot in Delhi and asked the defendant to find a suitable plot. In September, 1974, the defendant approached the plaintiff through a property dealer to buy suit plot. After negotiations, the parties finally settled the rate of consideration of the said plot at Rs.70,000/. 3(d) As per written statement, the plaintiff represented to the defendant that the suit plot, being lease hold, cannot be sold by New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 9/36 means of a registered sale deed on account of restriction on sale imposed by Delhi Development Authority. The plaintiff represented that she was herself a law graduate and was well conversant with the mode of transfer of leasehold plot and would herself draft the documents for the defendant. The plaintiff represented that the only acceptable mode of transfer of the suit plot was execution of construction agreement by her under which she would deliver the possession of the suit plot for construction and would commit default in the payment of the construction cost, which would result in vesting of the suit property in favour of the defendant. The plaintiff represented that in order to more perfectly assure the title in favour of the defendant, she would also execute a separate agreement i.e. an irrevocable General Power of Attorney as well as a Will in favour of the defendant.
3(e) In pursuance of understanding between the parties, the plaintiff obtained sale consideration amount of Rs.70,000/ from the defendant, delivered vacant and peaceful possession of the New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 10/36 suit plot to him on 09.10.1974 and executed the following documents in his favour:
(i) Construction agreement dated 09.10.1974 registered before SubRegistrar, New Delhi on 10.10.1974.
(ii) Agreement dated 09.10.1974 whereby plaintiff agreed to transfer the suit plot to the defendant for consideration of Rs.70,000/, shown as security in the construction agreement.
(iii) Registered irrevocable GPA dated 09.10.1974.
(iv) Special Power of Attorney dated 09.10.1974.
(v) Registered Will dated 09.10.1974 whereby she bequeathed suit property in favour of the defendant.
(vi) Affidavit dated 09.10.1974 whereby plaintiff declared and affirmed that she had appointed the defendant as her attorney and that she will not revoke the same.
(vii) Another affidavit dated 09.10.1974 whereby plaintiff declared and affirmed not to revoke the Will executed by her in respect of the suit property in favour of the defendant.
(viii) Surety bond dated 09.10.1974 executed by the New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 11/36 plaintiff in favour of the defendant.
3(f) After taking possession of the suit plot from plaintiff, the defendant got the construction plan prepared as per his requirement and got it sanctioned on 16.04.1977. Thereafter, defendant gave the contract of construction of suit plot to a contractor Jasmel Singh who raised the construction which was completed in the year 1978. During the construction, the defendant wanted to add a barsati floor and got building plan prepared for the barsati floor which was signed by the plaintiff and submitted to DDA, which sanctioned the same on 28.09.1977. DDA gave occupancy certificate to the defendant on 30.08.1978. 3(g) On 29.09.1978, the defendant sent a letter to the plaintiff as per draft approved by the parties on 09.10.1974. The said letter was duly served on the plaintiff who stood by her undertaking not to comply with the same in order to ensure smooth transfer of the suit property in the name of the defendant. Due to New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 12/36 this reason, the plaintiff did not respond to the said letter. 3(h) The defendant remained in continuous and uninterrupted possession of the suit property from 09.10.1974 upto the filing of the suit, for more than 12 years and during this period, the plaintiff never raised any claim over the suit property. The defendant also discharge all the fiscal liabilities including payment of property tax, ground rent etc. pertaining to the suit property. 3(i) As per the written statement, in October, 1974, the market value of the suit property was Rs.70,000/ which he paid as sale consideration to the plaintiff. The defendant contended that after obtaining entire sale consideration amount and executing the irrevocable GPA and Will etc. in his favour, the plaintiff was estopped by virtue of Section 115 of the Indian Evidence Act from claiming the possession of the suit property from him. 3(j) As per written statement, the plaintiff has New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 13/36 suppressed correct and material facts from the court. She deliberately did not mention in the plaint about the factum of execution of irrevocable GPA, Will etc. dated 09.10.1974 related to suit property in favour of the defendant.
4. Plaintiff filed replication in which she denied the defence taken by the defendant and reaffirmed the contents of the plaint. She inter alia stated that in the absence of execution of any agreement to sell, the question of execution of sale deed in favour of the defendant did not arise.
5. On the basis of the pleadings, the following issues were framed on 14.05.1996: i. Whether the suit is barred by time? OPD ii. Whether the plaintiff is entitled for the decree of possession of the suit property? OPP iii. Whether the plaintiff has sold the property in question to the defendant or not?
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 14/36
iv. Relief.
On 21.02.2004, following two additional issues were framed on the basis of amended written statement of the defendant: i. Whether the suit is not properly valued for the purposes of court fees and jurisdiction and this court has no pecuniary jurisdiction to try and entertain the suit? OPD ii. Whether the suit is barred under Section 115 of Indian Evidence Act as claimed in preliminary objection no. 12 in the amended written statement? OPD
6. Plaintiff examined herself as sole witness in support of her case. Plaintiff Smt. Krishna Pahuja appeared as PW1 and filed her affidavit of evidence Ex.PW1/A in which she deposed the facts as mentioned in the plaint. She relied upon copy of lease deed as Ex.P1, letter dated 29.09.78 written by the defendant to her as Ex.P2 and construction agreement/building contract dated 09.10.1974 as Ex.P3.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 15/36
In crossexamination, PW1 stated that she purchased the suit plot from DDA on 12.06.1967 for an amount of Rs.26,400/ vide lease agreement Ex.P1. She replied that she did not remember if in the year 1974, the value of the plot in question, even as per DDA prices, was Rs.70,000/. She stated that her husband must be aware of the same. She replied that she graduated in law in the year 1952. She replied that she did not remember when she met Man Mohan Singh for the first time in the year 1974. She admitted that defendant was not known to her prior to the deal in question. She admitted that she had drafted the GPA Ex.PW1/D1 dated 09.10.1974, which bears her signature at point A and A1. She admitted that she had drafted the Will Ex.PW1/D2 dated 09.10.1974, which bears her signatures at points A, A1 and B. She admitted that she had drafted the surety bond Ex.PW1/D5 dated 09.10.1974 which bears her signatures at points A, B and C. She replied that the affidavits Ex.PW1/D3 and Ex.PW1/D4, both dated 09.10.1974 bear her signatures at points A and B each, but stated that she had not drafted the same. She admitted that the building New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 16/36 sanction plan Ex.PW1/D6 bears her signatures at point A. She stated that she met the defendant for the first time in her office. She replied that, before 1974, she never went to the office of defendant. She stated that she did not remember if she had given the original lease deed of the plot in question, which DDA had executed in her favour in the year 1967, to the defendant. She stated that she did not remember if she handed over the original letter of possession of the plot in question also to the defendant on 09.10.1974. When she was shown the original lease deed and original letter of possession in the court by defendant, she replied that she could not say if she had given the same to the defendant on 09.10.1974. She replied that she did not know if defendant was a resident of District Karnal, Haryana at the time of execution of agreement. She replied that she did not know if defendant was an educationist and was doing his Ph.D. from Kurukshetra University when she executed the documents dated 09.10.1974 in favour of the defendant. She replied that in the first two years, she never went to the plot in question to find out if the defendant had started New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 17/36 construction over the suit plot. She stated that after 09.10.1974, she went to the plot in question for the first time in the year 1981. She again said that she visited it in the year 1978. She stated that she came to know about the completion of construction when she received the letter dated 29.09.1978 from the defendant. She stated that in September, 1978, she came to know that the defendant had raised construction contrary to the construction agreement, but she did not lodge any police complaint or any other complaint in court that the defendant had cheated her. She denied the suggestion that since the plot in question was leasehold, she adopted the procedure of power of attorney sale through execution of construction agreement, Will, GPA, SPA, surety bond and affidavit etc. She replied that she did not know who was the architect involved in construction of the house in question. She admitted that defendant had paid all the taxes including house tax, ground rent etc. in respect of property in question since the year 1974.
7. Defendant Man Mohan Singh examined himself as New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 18/36 DW1 in support of his defence. He deposed facts through affidavit of evidence Ex.DW1/1 on the same lines as written statement and relied upon documents, i.e. Ex.DW1/A Details furnished by defendant of his membership and educational qualification, Ex.DW1/B - Possession letter from DDA and Ex.DW1/C - Labour Contract.
8. In crossexamination, DW1 replied that he was 22 years old in the year 1974 and at that time, his residence was in Nilokheri, Haryana, which was his address till 1997. He replied that after April, 1977, he shifted to Ahmadabad and stayed there till December, 1984, after which he shifted to North Eastern Hill University, Shillong, Meghalaya. He denied the suggestion that plaintiff had engaged him as a contractor to raise construction of a single storey house on the suit plot as she did not have sufficient funds and expertise to raise construction herself. He admitted that he had signed the agreement of construction Ex.P3. He denied that the sum of Rs.70,000/ was refundable by plaintiff to him after New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 19/36 completion of the construction of single storey house. He admitted the contents of all the documents relied upon by plaintiff in her testimony, but explained that he paid sum of Rs.70,000/ to plaintiff not as security amount, but as a valued consideration of the plot in question prevailing at that time. He denied that the parties had negotiated the reasonable cost of construction of the first floor and barsati floor. He denied that plaintiff had sent him notice dated 26.09.1981 and 26.04.1984 calling upon him to hand over the possession of the suit property and accept Rs.3,28,000/ as reasonable cost of construction. He denied that he wrongfully awarded the contract of construction over the suit property to contractor Jasmel Singh.
9. Defendant examined Mr. Satyapal, Record Attendant, Department of Delhi Archives, Satsang Vihar Marg, near JNU, New Delhi as DW2. DW2 produced the summoned record and proved the documents Ex.PW1/D1, Ex.PW1/D2, Ex.DW2/A and Ex.PW1/D5.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 20/36
10. I have heard the final arguments from both sides and perused the written submissions filed by both sides. Now, my issue wise findings are as under:
11. Issue No. 1: "Whether the suit is barred by time?"
The onus to prove this issue was on the defendant. The suit was instituted by plaintiff on 23.10.1986. The defendant contended that he was in continuous and uninterrupted possession of the suit property since 09.10.1974. As per law, the suit for possession of immovable property based on title must be instituted within 12 years starting from the date when the possession of the defendant becomes adverse to the plaintiff (Article 65 of the Limitation Act, 1963).
In the written statement, the defendant did not take the defence of possession of suit property adverse to the interest of plaintiff, although, he claimed to be in continuous and uninterrupted possession of the same as a transferee for valuable New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 21/36 consideration w.e.f. 09.10.1974. It would be mutually contradictory for the defendant to contend on the one hand that he was a transferee of suit property from plaintiff for valuable consideration and on the other hand, that his possession was adverse to the interest of the plaintiff.
Rather, the defendant himself admitted that he had sent the letter dated 29.09.1978, Ex.P2 informing the plaintiff about completion of construction on the plot in question and calling upon the plaintiff to make necessary arrangement for taking over the possession of the building after making the payments in terms of agreement of construction dated 09.10.1974, Ex.P3. Thus, in any event, the possession of defendant over suit property could not be adverse to the interest of plaintiff till 29.09.1978. When the date is so reckoned, the suit has been instituted well within the limitation period. Hence, issue no. 1 is decided in favour of the plaintiff and against the defendant.
12. Issue No. 2: "Whether the plaintiff is entitled for New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 22/36 the decree of possession of the suit property?" OPP Issue No. 3: "Whether the plaintiff has sold the property in question to the defendant, or not?" (Onus not mentioned).
Issues no. 2 and 3 are interrelated and shall be decided together. Issue no. 3 pertains to defence taken by the defendant, hence, onus of the proof shall be considered to be upon the defendant.
Ld. counsel for the defendant argued that on identical facts, Hon'ble High Court of Delhi in Kuldeep Singh Suri Vs. Surinder Kumar Kalra & Anr. 76(1998) DLT 232 dismissed the suit for possession. Indeed, the facts of this case are very similar to the facts of aforesaid judicial precedent, relied upon by the defendant. In the aforesaid case also, the plaintiff had leasehold rights for 99 years on a plot measuring 600 sq. yards in Vasant Vihar, New Delhi. He entertained into building construction agreement with the defendants and required the defendants to construct a residential building at the cost of Rs.5 lakh. The New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 23/36 plaintiff obtained sum of Rs.1,82,500/ from the defendants as security deposit for carrying out the contractual obligations. The plaintiff agreed to pay a total sum of Rs.6.25 lakh towards cost of construction and profit to the defendant after the defendants obtained completion certificate of the building. Besides the above said amount of Rs. 6.25 lakh, plaintiff was also required to return security deposit of Rs.1,82,500/ to the defendants upon completion of building. The plaintiff also executed agreement to sell, Will, Affidavit and GPA in favour of the defendants, related to the suit property and also handed over the original lease documents of the suit property to the defendants while handing over the possession of the suit property to them.
When the dispute between the parties came before the Hon'ble Court in aforementioned case, it determined that the real intention of the parties was to enter into contract of sale of the suit property, whereas, the agreement of construction was executed merely to camouflage the actual sale due to restriction on sale of the leasehold property at that time. The court had observed that the New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 24/36 transaction between the parties appeared to be sale by power of attorney notwithstanding the lack of formality of the execution of the formal sale deed, which could not be executed in view of certain restrictions imposed by the lessor. The judicial precedent laid down in Kuldeep Singh Suri (supra) seems squarely applicable to the case at hand.
13. On the basis of evidence led by the parties, the transaction between them seems to be of the nature of sale of property in question for full consideration, rather than a mere construction agreement. The reasons for conclusion are enumerated below: 13(a) The plaintiff did not contest the contention of defendant that he was a Professor having Ph.D. Qualification and not a contractor by profession. The plaintiff did not deny the deposition of DW1 that in the year 1974, he was a resident of District Karnal, Haryana and was a Ph.D. Student in Kurukshetra New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 25/36 University, which he completed in the year 1977. In her testimony, the plaintiff had admitted in crossexamination that she did not know the defendant prior to the deal in question. She admitted that prior to the deal, in the year 1974, she never went to the office of defendant.
As per plaintiff, she appointed defendant as the contractor to construct a single storey building on her plot through construction agreement, Ex.P3. It seems strange how the plaintiff chose defendant as a contractor, although his residence, antecedents and credentials as a contractor were not known to her prior to the deal in question.
The averments of the defendant that he was a Professor and not a contractor who constructed buildings, sounds more logical and convincing.
13(b) In the construction agreement Ex.P3, there is no mention of necessary specifications which form part of construction agreements in general. It does not mention the nature New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 26/36 and extent of the construction to be carried out, the kind of the material to be used in the construction, and the dimension and number of the rooms to be constructed. All it mentions is that the building shall be constructed in accordance with the sanctioned plan which the contractor shall obtain. Strangely, the plaintiff left all the crucial details of the nature and quality of construction and building plan to the contractor, i.e. the defendant, which a person would generally not do if she wanted to get the building constructed for her own use.
In a construction agreement, one would expect provisions for inspection of the building by the owner, guarantee of workmanship, time frame within which the work would be completed, damages for delay in completing the work, termination of the contract due to delay in execution of the same etc., but all these conditions are missing in the contract. 13(c) The plaintiff never cared to check if the defendant had started to construct the building after execution of construction New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 27/36 agreement, Ex.P3 dated 09.10.1974. The plaintiff had replied in crossexamination that in the first two years after 09.10.1974, she never went to the plot in question to find out if the defendant had started construction over the said plot. She replied that after 09.10.1974, she went to the plot in question for the first time in the year 1978. The natural question that arises is - why the plaintiff did not care to even go to the plot in question for four years if she wanted to get it constructed through defendant for personal use. The plaintiff did not also care to check if the defendant himself raised construction over the plot or gave contract of construction to a third person. The plaintiff replied in her crossexamination that she did not know who was the Architect involved in the construction of the house in question. The conduct of the plaintiff lends credibility to defence of the defendant that plaintiff had sold the suit property to him in the guise of construction agreement etc. 13(d) The plaintiff suppressed material fact regarding execution of irrevocable GPA, Will, Affidavits, SPA, all dated New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 28/36 09.10.1974 in favour of the defendant, in her plaint as well as affidavit of evidence. Plaintiff is admittedly a law graduate. She had admittedly drafted the GPA Ex.PW1/D1 and Will Ex.PW1/D2, both of which bear her signature. She admitted her signature on affidavits Ex.PW1/D3 and Ex.PW1/D4. The GPA Ex.PW1/D1 and the Will Ex.PW1/D2 are both registered documents in the office of SubRegistrar, Delhi. Both documents were registered alongwith the agreement of construction on 09.10.1974. The plaintiff did not explain what was the need to execute irrevocable GPA and Will in respect of suit property alongwith agreement of construction if the intention was only to get the building constructed by defendant for her own use.
The execution of documents i.e. irrevocable GPA, Will, Affidavits and SPA, all dated 09.10.1974 in favour of the defendant and the suppression thereof in the plaint and affidavit of evidence of PW1 lends credence to the defence that intention of plaintiff was to sell the suit property to defendant through execution of aforementioned documents.
New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 29/36 13(e) The plaintiff handed over the original lease deed and original letter of possession of the plot in question, issued by DDA, to the defendant. In her crossexamination, the plaintiff was shown the said documents by the defendant upon which she feigned ignorance that she did not know how these documents came in possession of the defendant. She only stated that she did not remember if she had handed over the said documents to the defendant on 09.10.1974.
The defendant rightly contended that the plaintiff would not have handed over the original documents related to suit property to him had she not sold the suit property to him for full consideration.
13(f) The defendant contended that plaintiff never acted upon the letter dated 29.09.1978 sent by him to inform her about the completion of construction on the land in question and to call upon her to make arrangements for payment of the dues in terms of New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 30/36 construction agreement dated 09.10.1974. He contended that the plaintiff did not act upon the letter dated 29.09.1978 because it was agreed upon between the parties that plaintiff shall not comply with the letter and will commit default in payment so that the defendant becomes owner of the plot as an unpaid contractor.
The plaintiff claimed to have sent three letters, dated 26.09.1981, 25.04.1984 and in March, 1986 to call upon the defendant to receive the dues and hand over the plot in question to her. The defendant denied that any such letter was sent by plaintiff to him. The plaintiff did not produce any such letter or proof of sending it to the defendant. It is safe to conclude that above mentioned letters were not sent by plaintiff to defendant. The plaintiff did not take any action after receiving the letter dated 29.09.1978 from defendant till institution of the present suit in the year 1986. The conduct of the plaintiff militates against her contention.
13(g) The plaintiff admitted in crossexamination that New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 31/36 defendant had paid all the taxes including house tax, ground rent etc. in respect of property in question since the year 1974. The plaintiff did not explain why she made the defendant to discharge her liability to pay taxes in respect of property in question, if she wanted to get it developed for her own use.
13(h) Strangely, rather than making advance payment to the defendant for construction of the building upon plot in question, the plaintiff obtained Rs.70,000/ from him as security. If the intention of plaintiff was to get the building constructed for her own use, she would have given payments to the defendant towards construction cost, rather than obtaining security amount from him. The defendant claimed that Rs.70,000/ was paid by him to plaintiff as sale consideration of the plot, in accordance with prevailing market value on 09.10.1974. The plaintiff replied in cross examination that she had purchased the plot in question from DDA on 12.06.1967 for an amount of Rs.26,400/. In absence of evidence to the contrary, the prevailing market price of the said plot New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 32/36 in the year 1974 would reasonably be estimated to be Rs.70,000/, as mentioned by the defendant.
13(i) In the judicial precedent laid down in Kuldeep Singh Suri (supra), Hon'ble High Court observed that it is a matter of common knowledge that in all subleases executed on behalf of the President of India such like restrictive clauses have been incorporated. It is also a matter of common knowledge that due to such like restrictions the power of attorney sales in thousands have been effected. If the instant transaction is held to be illegal then in that eventuality thousands of such transactions on the same token would have to be declared as illegal. This would cause colossal loss and misery to the vendees. Though both the vendors and the vendees are in pari delicto, the vendors would be making capital out of their breach by getting back their properties which over the years have appreciated astronomically. It would be wholly inequitable to declare such agreements being violative of perpetual subleases.
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In view of the foregoing discussion, it is concluded that the plaintiff had sold the property in question to the defendant through execution of irrevocable GPA, Will, Affidavits, SPA, all dated 09.10.1974 in favour of the defendant and the plaintiff is not entitled to decree of possession of the suit property. Hence, Issues No. 2 and 3 are decided against the plaintiff and in favour of the defendant.
14. Additional Issue No. 1: Whether the suit is not properly valued for the purposes of court fees and jurisdiction and this court has no pecuniary jurisdiction to try and entertain the suit? OPD The burden of proof of this issue was on the defendant. The plaintiff valued the suit at Rs.4,25,000/ for the purpose of court fees and jurisdiction being the cost and value of the building, which included the amounts payable by the plaintiff to the defendant in terms of agreement of construction and the cost of construction of the first floor and barsati floor, on which the New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 34/36 plaintiff paid advalorem court fees. The defendant did not lead any evidence to prove that the value of suit property was higher than the value placed by the plaintiff in the year 1986. In absence of evidence to the contrary, the value placed by plaintiff is accepted as correct. This issue is decided against the defendant and in favour of the plaintiff.
15. Additional Issue No. 2: Whether the suit is barred under Section 115 of Indian Evidence Act as claimed in preliminary objection no. 12 in the amended written statement? OPD This issue is decided in terms of decision upon issues no. 2 and 3. Having sold the suit property to defendant through registered GPA, registered Will, Affidavits and SPA, all dated 09.10.1974 for valuable consideration, the plaintiff is now estopped from claiming possession of the suit property on the basis of title. This issue is decided in favour of the defendant and against the plaintiff.
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16. Relief In the given facts and circumstances of the case, on the basis of material as placed on record and in view of the aforesaid discussion, in considered opinion of the court, the plaintiff is not entitled to decree of possession of the suit property. The suit is dismissed with costs. Decree sheet be prepared accordingly.
File be consigned to Record Room as per rules after compliance of necessary legal formalities.
Announced in open Court Dated: 07.12.2017 (VISHAL SINGH) Addl. District Judge06 (Central), Tis Hazari Courts, Delhi New CS No. 11449/16, Krishna Pahuja Vs. Man Mohan Singh Page No. 36/36