Delhi District Court
Amit Kumar Yadav vs Atul Gupta on 31 May, 2025
THE COURT OF MR. VAIBHAV PRATAP SINGH
CIVIL JUDGE, PATIALA HOUSE COURTS
NEW DELHI DISTRICT, DELHI
CNR No. DLND030005822016
CS SCJ No. 58221/2016
IN THE MATTER OF:
1. Amit Kumar Yadav
S/o Late Mr. Rameshwar Yadav
2. Sandeep Yadav
S/o Late Mr. Rameshwar Yadav
3. Bimla Yadav
W/o Late Mr. Rameshwar Yadav
All Residents of:
H.No. 91, Street No.6
Sheetla Enclave, Phase-II
Opposite Sector-5
Gurgaon, Haryana
. . . Plaintiffs
versus
Atul Gupta
S/o Mr. Pranvir Gupta
R/o WZ-60, Todapur Village
New Delhi-110012 . . .Defendant
SUIT FOR RECOVERY OF POSSESSION, MESNE
PROFITS, DAMAGES AND PERMANENT INJUNCTION
Date of Institution : 21.03.2016
Date of Reserving Judgment : 08.05.2025
Date of Judgment : 31.05.2025 Digitally
signed by
VAIBHAV
VAIBHAV PRATAP
PRATAP SINGH
SINGH Date:
2025.05.31
17:08:30
+0530
CS SCJ No. 58221/2016 & 59022/2016 Page No. 1 of 25
Amit Kumar Yadav vs. Atul Gupta
AND
CNR No. DLND030021822016
CS SCJ No. 59022/2016
IN THE MATTER OF:
1. Amit Kumar Yadav
2. Sandeep Yadav
Both S/o Late Mr. Rameshwar Yadav
and R/o H.No. 91, Street No.6
Sheetla Enclave, Phase-II
Opposite Sector-5
Gurgaon, Haryana
. . . Plaintiffs
versus
Atul Gupta
S/o Mr. Pranvir Gupta
R/o 2178/62, Naiwala
Karol Bagh, New Delhi
. . .Defendant
SUIT FOR DECLARATION
Date of Institution : 23.11.2016
Date of Reserving Judgment : 08.05.2025
Date of Judgment : 31.05.2025
Digitally
signed by
VAIBHAV
VAIBHAV PRATAP
PRATAP SINGH
SINGH Date:
2025.05.31
17:08:47
+0530
CS SCJ No. 58221/2016 & 59022/2016 Page No. 2 of 25
Amit Kumar Yadav vs. Atul Gupta
JUDGMENT
1. By this common judgment, I shall dispose of two connected suits bearing number CS SCJ 58221/2016 titled "Amit Kumar Yadav & Ors. v. Atul Gupta" ("the first suit") and CS SCJ 59022/2016 titled "Amit Kumar Yadav & Anr. v. Atul Gupta" ("the second suit"), consolidated by order dated 06.07.2018.
PLAINT IN THE FIRST SUIT
2. The first suit was filed against the Defendant, with the following prayers:
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to pass:
a) A decree of possession in favour of the plaintiffs and against the defendant thereby directing the defendant, his agents, authorized representative, legal heirs or anyone claiming through him to handover the peaceful possession of the suit property bearing No.WZ-60, Todapur Village, New Delhi-110012, measuring 154 sq. yards, to the plaintiffs, as shown in Red Colour in the site plan.
b) A decree of arrears of rent @ Rs.8000/- per month since 01/03/2013 upto 31/01/2016; and thereafter @ Rs.50,000/- per month as damages for illegal use and unauthorized occupant, from the date of filing the this suit till realization.
c) A decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, their agents, authorized representative, legal heirs or anyone claiming through them from transferring, alienating, creating third party interest in the suit property bearing No. WZ-60, Todapur Village, New Delhi- Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:08:50 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 3 of 25 Amit Kumar Yadav vs. Atul Gupta 110012, measuring 154 sq. yards, as shown in red in the site plan attached with plaint.
d) Costs of the suit may also be awarded in favour of the plaintiffs and against the defendant and the mesne profits of the property during the pendency of the case may kindly be awarded to the plaintiff.
e) Any other relief which this Hon'ble Court may deem fit under the facts and circumstances of the case may also be granted in favour of the Plaintiffs and against the Defednant."
3. Brief facts as alleged by the Plaintiff in the Plaint are that the plaintiffs are law-abiding permanent residents of Gurgaon, Haryana along with their families.
4. That Late Sh. Rameshwar Yadav S/o Late Sh. Phula Ram Yadav was the absolute owner in possession of house No. WZ-60, Todapur Village, New Delhi-110012, measuring 154 sq. yards (the "suit property"), shown in red in the attached site plan.
5. That the suit property was ancestral and inherited by Late Sh. Rameshwar Yadav, who passed away on 03.03.2013, leaving behind plaintiffs No.1 and 2 (his sons) and plaintiff No.3 (his widow), who inherited the suit property.
6. That in 1999, Late Sh. Rameshwar Yadav moved with his family to Sheetla Enclave, Gurgaon, Haryana, leaving the suit property vacant, and decided to let it out for income. VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:08:54 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 4 of 25 Amit Kumar Yadav vs. Atul Gupta
7. That the defendant, needing a godown, approached Late Sh. Rameshwar Yadav and took the entire suit property on rent from March 2002 at Rs.8,000/- per month, excluding utilities, with a monthly oral tenancy starting on the 1st and rent payable by the 7th of every month.
8. That in March 2003, needing funds, Late Sh. Rameshwar Yadav asked the defendant for Rs.5,00,000/- advance rent, which was refused, after which he offered to sell the property to the Defendant, who agreed to buy the suit property for Rs.17,00,000/- under an agreement to sell dated 17.03.2003, with full payment due by 24.04.2003, but paid only Rs.5,00,000/- by that date.
9. That the defendant, citing business losses, could not pay the balance, so both parties treated the Rs.5,00,000/- given as refundable security, adjusting Rs.5,000/- monthly from rent, making actual payment of rent Rs.3,000/- per month.
10.That the defendant paid rent during the lifetime of Late Sh. Rameshwar Yadav but stopped after his death on 03.03.2013 despite repeated demands; plaintiffs claim Rs.1,12,000/- as unpaid rent from 01.01.2015 to 29.02.2016 and Rs.20,000/- per month as damages thereafter. Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:08:58 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 5 of 25 Amit Kumar Yadav vs. Atul Gupta
11.That the defendant has harassed and threatened the plaintiffs and attempted to sublet despite having no right, title or interest in the property, making his continued possession illegal.
12.That the defendant is using the suit property for unauthorized commercial activity without plaintiffs' consent, and his possession has become unlawful.
13.That since the monthly rent exceeds Rs.3,500/-, the Delhi Rent Control Act does not apply, and a simple suit for possession is maintainable and termination notice under Section 106 of the Transfer of Property Act is also not required as filing of this suit itself is considered a notice to vacate.
WRITTEN STATEMENT OF DEFENDANT IN THE FIRST SUIT
14.Defendant filed a written statement and took the stand that the suit is not maintainable as the defendant is the lawful owner and in possession of the suit property, having purchased it from Sh. Rameshwar Yadav by way of GPA, Will, Affidavit, Agreement to Sell, Receipt, and Possession Letter dated 24.04.2003 for Rs.5,00,000/-.
15.That there is no privity of contract between the plaintiffs VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:01 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 6 of 25 Amit Kumar Yadav vs. Atul Gupta and the defendant, and the plaintiffs have no locus standi or right to file the suit.
16.That the suit is time-barred as it was filed in 2016, more than 12 years after execution of title documents dated 24.04.2003, and hence barred by limitation for both possession and other reliefs.
17.That there is no landlord-tenant relationship between the plaintiffs and the defendant, and the defendant was never inducted as a tenant, thereby making the suit liable for dismissal.
18.That the suit is not properly valued for court fees or jurisdiction, and the ad valorem court fee has not been paid according to the market value of the property.
19.That the Agreement to Sell annexed by the plaintiffs is denied as false and fabricated.
20.That the defendant reiterates legal ownership based on GPA, Will, Affidavit, Agreement to Sell, Receipt and Possession Letter dated 24.04.2003 after paying Rs.5,00,000/- and denies being a tenant at any time.
21.That the suit has been filed by the plaintiffs with the intention to illegally grab the property due to its increased VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:06 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 7 of 25 Amit Kumar Yadav vs. Atul Gupta market value following colony regularization and they never inherited it nor was it an ancestral property.
22.That the defendant has let out the suit property to a tenant and denies issuing any threats or having no title, and asserts full right to retain possession.
23.That since there is no landlord-tenant relationship, the claim for recovery of possession on the basis of rent does not arise.
REPLICATION
24.Plaintiffs filed a replication denying the case of the Defendant and reiterating its own, with the following points.
25.That the father of plaintiff No.1 never sold the suit property to the defendant, and the documents filed by the defendant are forged and fabricated.
26.That the defendant is merely a tenant in the suit property and has no right, title, or interest in the same.
27.That, without admitting the defendant's claim, the suit property is ancestral to the plaintiffs, and the deceased Sh. Rameshwar Yadav had no right to sell the property. VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:10 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 8 of 25 Amit Kumar Yadav vs. Atul Gupta
28.That the plaintiffs inherited the suit property from their father and forefathers and have every right to it.
29.That the suit filed by the plaintiffs is within the limitation period, as they only recently became aware of the forged and fabricated documents.
PLAINT IN THE SECOND SUIT
30.Once the Defendant filed his WS in the first suit and filed his title documents (GPA, Will etc.), the Plaintiff filed the second suit, with the following prayers:
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to pass:
a) A decree of declaration in favour of the plaintiffs and against the defendant thereby declaring the documents i.e. Agreement to Sell, Will, General Power of Attorney, Affidavit, etc. all are dated 24/04/2003 as null and void being illegal, forged, fabricated, constructed and being has no legal sanctity in the eye of law.
b) Any other relief which this Hon'ble Court may deem fit under the facts and circumstances of the case may also be granted in favour of the plaintiffs and against the defendant, in the interest of justice."
31.Same facts as the original suit was reiterated in this suit as well. It was mainly stated that the documents being relied upon by the Defendant came to the knowledge of the Plaintiffs for the first time on 11.08.2015 after he filed them and supplied a copy. They are forged, fabricated, and illegal and are liable to be declared cancelled as the suit VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:14 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 9 of 25 Amit Kumar Yadav vs. Atul Gupta property was ancestral and the Plaintiffs along with the father Late Mr. Rameshwar Yadav were co-sharers/co- owners of it by birth and Late Mr. Rameshwar Yadav had no right to sell the same beyond his share and the Defendant got the same executed fraudulently.
WRITTEN STATEMENT IN THE SECOND SUIT
32.The Defendant also filed a WS in the second suit reiterating his original stance in the first suit. He additionally took the defence that the suit is bad for non- joinder of necessary parties as Late Mr. Rameshwar Yadav also had daughters, who have not been joined as parties.
ISSUES
33.On the basis of pleadings in the first suit, the following issues were framed on 19.08.2017:
33.1.Whether the plaintiff is entitled to a decree of possession against the defendant to hand over peaceful possession and vacant possession of the suit property bearing no. WZ-60, Todapur Village, New Delhi - 110012 measuring 154 sq. yards? OPP.
33.2.Whether the plaintiff is entitled to decree of arrears of rent? If yes, at what rate? OPP.
33.3.Whether the plaintiff is entitled to decree of permanent injunction against the defendant thereby restraining the defendant from transferring, alienating and creating third party interest in the suit property?
OPP.
Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:09:19 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 10 of 25 Amit Kumar Yadav vs. Atul Gupta 33.4.Relief.
34.On the basis of pleadings in the second suit, the following issues were framed on 19.08.2017:
34.1.Whether the plaintiff is entitled to decree of declaration against the defendant declaring the documents, that is, agreement to sell, will, general power of attorney, affidavit etc. all are dated 22.04.2003 as null and void? OPP.
34.2.Relief.
PLAINTIFF'S EVIDENCE
35.The record of the evidence in this case has left much to be desired. This case came before the undersigned at the stage of final arguments, though an application had already been moved by the Defendant for summoning an additional witness, which stood allowed by the learned Predecessor. That witness came to be examined as DW-2 by the undersigned. However, the evidence recorded prior to that over the years, before various different Predecessors, reflects that the suits have been treated as consolidated and non-consolidated at will. On occasions, common evidence was recorded while on other occasions, it was recorded separately. Documents of one file have also been read in the other and so some of the documents only exist in one file, with extreme confusion about the exhibits and marks put on them. None of the exhibits states how many pages the document runs into and multiple same documents have VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:23 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 11 of 25 Amit Kumar Yadav vs. Atul Gupta been exhibited multiple times by different witnesses.
36.Be that as it may, neither party has agitated this issue during final arguments and broadly everyone is in agreement over the documents.
37.The Plaintiffs examined the following witnesses:
37.1. PW-1: Mr. Dheer Singh, Kanungo, LM Department, DDA, Vikas Sadan, who exhibited Ex. PW-1/1 (OSR) (Colly) the record of the Chulha Tax Register of village Todapur pertaining to years 1954-1972, which was in Urdu;
37.2. PW-2: Mr. Abul Hasan, Translator, who exhibited the English translation of Ex. PW-1/1 (OSR) (Colly) as Ex. PW-2/1 (Colly);
37.3. PW-3: Ms. Indu Bala Shah, ASO/OSB, DDA, Todapur Village, who exhibited the notification dated 07.12.2014 as Ex.PW-3/1; and 37.4. PW-4: Plaintiff No. 2, who exhibited the site plan as Ex. PW-4/1 and the certified copy of the Chulha Tax along with its translation as Ex.PW-2/1 (Colly).
38.All the witnesses were cross-examined by the Learned Counsel for the Defendant.
Digitally
signed by
VAIBHAV
VAIBHAV PRATAP
PRATAP SINGH
Date:
SINGH 2025.05.31
17:09:27
+0530
CS SCJ No. 58221/2016 & 59022/2016 Page No. 12 of 25
Amit Kumar Yadav vs. Atul Gupta
DEFENCE EVIDENCE
39.The Defendant examined the following witnesses:
39.1. DW-1: Defendant, who exhibited the copies of the GPA, Will, Affidavit, Agreement to Sell, Receipt and Possession Letter dated 24.03.2003 as Ex.DW-1/1 (Colly) (OSR); the photocopy of the MCD Challan as Mark DW-1/2. The photocopy of MCD Challan as Mark Dw-1/3, the photocopy electricity bill dated 05.05.2016 as Mark DW-1/4 and the original site plan as DW-1/5 39.2. DW-2: Mr. Amit Kumar, Senior Assistant, Sub-
Registrar Office, basai Darapur, New Delhi, who exhibited the Registered GPA and Will dated 24.04.2003 as Ex.DW-2/1 (Colly) (OSR).
40.Both witnesses were cross-examined by the Learned Counsel for the Plaintiffs.
FINAL ARGUMENTS
41.I have gone through the record with the assistance of counsel and I have heard Mr. Satish Kumar Tomar, Learned Counsel for the Plaintiffs and Mr. Anjum Kumar, Learned Counsel for the Defendant.
VAIBHAV FINDINGS OF THE COURT PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:30 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 13 of 25 Amit Kumar Yadav vs. Atul Gupta
42.Due to the nature of the case, all issues in both the suits, being intertwined, are taken up together.
43.It is the argument of the Plaintiffs that that the Defendant is a tenant of Mr. Rameshwar Yadav's and has no right to remain therein once this suit for eviction is filed.
44.The issue at hand is not whether the Plaintiff is the absolute owner of the suit property as this is not a title suit. This is an eviction suit by plaintiffs claiming to be the landlord, wherein, to succeed, all that is to be established are three things:
44.1. Existence of a landlord and tenant relationship; 44.2. Tenancy not protected by the Delhi Rent Control Act, 1958 (DRC Act); and 44.3. Termination of tenancy.
45.Defendant has consistently maintained that he was never a tenant in the suit property and in fact was the owner, having purchased it from Mr. Rameshwar Yadav. His argument is that due to rise in property prices, the Plaintiffs one day woke up and cooked up this whole story.
Having taken this stand, the onus was on the Plaintiffs to prove the landlord-tenant relationship, in which, they have failed.
Digitally
46.No evidence at all is lead, except oral evidence of Plaintiff signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:09:34 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 14 of 25 Amit Kumar Yadav vs. Atul Gupta No. 2 as PW-4, to show that there ever existed a landlord- tenant relationship between the Defendant and Mr. Rameshwar Yadav. There is no rent agreement, no rent receipts, no letters, no communication.
47.In the cross-examination of PW-4, he admitted that his father Mr. Rameshwar Yadav never sent any notice or filed any case against the Defendant herein. It is only after his death that two of his sons and his wife filed this suit. Even so, despite saying in his cross-examination that he will bring the death certificate of his father Mr. Rameshwar Yadav, PW-4 failed to bring it on the next date, for which purpose cross-examination was specifically deferred. He could not even tell the date of demise of his father and at most stated that it was in 2013, after which admittedly no rent was ever paid by the Defendant, as per the Plaintiffs. Nothing has been explained as to why the Plaintiffs waited 3 years till 2016 to evict whom they believed was a tenant. It is not their case that rent was ever paid to any of the Plaintiffs.
48.Thus, I am unable to enter a finding that the Plaintiffs have proved a landlord-tenant relationship between the parties. Having held so, the first suit is bound to fail.
49.Learned Counsel for the Plaintiffs has argued that the suit may in any case be decreed on better title, as the Plaintiffs are the legal heirs of Mr. Rameshwar Yadav.
VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:37 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 15 of 25 Amit Kumar Yadav vs. Atul Gupta
50.Defendant, in response, has proved registered documents such as GPA and Will Ex.DW-2/1 (Colly) to show that he is the owner, having paid the consideration amount of Rs. 5 lacs. Interestingly, Plaintiffs have themselves relied on similar documents, wherein the consideration was approx Rs. 17 lacs.
51.The argument of the Defendant is that in view of the cloud on the title, if any, of the Plaintiffs, created by them only, they ought to have sought a declaration.
52.I am inclined to agree with the Defendant. The Plaintiffs claim to be the owner of the suit property, having inherited it from their ancestors. The facts of this case involve there being two sets of property documents, clearly raising a cloud over the title claimed by the Plaintiffs.
53.The landmark judgment in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Ors., 2008 INSC 395 has laid to rest the controversy in this regard. We may profitably refer to the relevant paras hereunder:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:09:45 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 16 of 25 Amit Kumar Yadav vs. Atul Gupta protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:09:50 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 17 of 25 Amit Kumar Yadav vs. Atul Gupta declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
(emphasis by me)
54.Based on the evidence adduced, specially Ex.DW-1/1 and Ex.DW-2/1, the Defendant has shown more than a prima facie right over the property and so I find that the Plaintiffs ought to have sought declaration of their title. Instead of doing so, the Plaintiffs opted to file the second suit seeking a declaration that the documents of the Plaintiff are null and void.
55.The argument in the second suit is that the documents are forged and fabricated and additionally that the suit property being ancestral in nature, Mr. Rameshwar Yadav was never its sole owner and could not have transferred more than his share.
56.The argument about the documents of the Defendant being forged and fabricated cannot be sustained as no evidence whatsoever is led to prove the same. The plaintiffs never examined an expert witness to analyze the documents nor any forensic evidence was led. In short, nothing has been brought on record at all to suggest any kind of forgery.
57.The argument of the Plaintiff that in 2003, the owner of the suit property was DDA, to whom chullah tax was being paid, does not provide any respite. They have relied upon VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:09:54 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 18 of 25 Amit Kumar Yadav vs. Atul Gupta the Notification of DDA dated 17.12.2014 Ex.PW-1/3 (though it should be Ex.PW-3/1), to show that it was only in 2014 that freehold ownership was granted over the land in Todapur Village by the DDA and so the property was not Mr. Yadav's to sell in 2003. However, a reading of the notification itself would show that in clause (i) thereof, it mentions "purchasers from the chullah tax payers" and in clause (ii) it mentions "purchasers from original allottees occupying land".
58.The notification of DDA itself recognizes that the property of which it was giving freehold rights could have been alienated in those ways.
59. As far as the suit property being ancestral in nature in concerned, the case of the Plaintiff is weak. Not even all children of Mr. Rameshwar Yadav have been joined as parties. Everywhere in the plaint in both the suits it is mentioned that the property was inherited by Mr. Rameshwar Yadav from his father and forefathers but even the name of his father does not find mention anywhere. It is for the first time in the cross-examination of PW-4 that he disclosed the name of his grandfather and even then, he stated that he does not know who the forefathers were.
60.Thus, despite claiming inheritance from forefathers, no chain is completed nor any evidence is brought on record proving the family tree or to even introduce the family Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:09:59 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 19 of 25 Amit Kumar Yadav vs. Atul Gupta tree. The Plaintiffs admitted never filed a suit for partition and did even join his own sisters and so the plea of the three plaintiffs of having become absolute owners of the suit property is liable to be rejected.
61.The testimony of PW-4 does not inspire confidence at all. He claims he was a 13-14 years old in 2003. Detailed facts in some details have been averred in the plaint. No other plaintiff stepped in the witness box, including the wife of Mr. Rameshwar Yadav, despite being a plaintiff. PW-4 has not clarified how he had the knowledge of any dealings between the Defendant and his father. His testimony, if assumed to be cogent, which it is not, is nothing more that hearsay.
62.Plaintiff has finally argued that since the ownership documents being relied on by the Defendant are GPA, will, etc., he cannot claim to be the owner of the Suit Property in view of Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Ors., 2011 INSC 739.
63.Defendant, in response, has relied on Shri Ramesh Chand v. Suresh Chand, 2012:DHC:2309. I find that the case at hand is almost covered by the judgment.
64.After examining Suraj Lamps (supra), it was held as follows: VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:10:03 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 20 of 25 Amit Kumar Yadav vs. Atul Gupta "2. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
3. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:-
Section 202. Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:10:07 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 21 of 25 Amit Kumar Yadav vs. Atul Gupta that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
XXX
5. To avoid unnecessary repetition, I am not again stating all the facts, issues, evidence and discussion as contained in the aforesaid paras and I would seek to adopt the same for the purpose of disposal of this appeal as if the said paras are in fact part of this judgment.
The summarization is that the documents which were executed by the father Sh. Kundan Lal in favour of the respondent No. 1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No. 1/plaintiff by the father Sh. Kundan Lal under the agreement to sell dated 16.5.1996.
6. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff, the respondent No. 1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex.PW1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration (which I have reproduced above) and which shows that power of attorney given for consideration operates even after the death of the executant.
7. Great stress was laid on behalf of the appellant to the fact VAIBHAV PRATAP SINGH Digitally signed by VAIBHAV PRATAP SINGH Date: 2025.05.31 17:10:10 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 22 of 25 Amit Kumar Yadav vs. Atul Gupta that the respondent No. 1/plaintiff had failed to prove the Will, Ex.PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kashibai & Anr. Vs. Parwatibai & Ors. 1995 4 AD S.C. (C) 41 to argue that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/plaintiff as PW-1. Once there is no cross-examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No. 1/plaintiff under a Will not be a judgment in rem but only a judgment inter se the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant No. 1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e. the brother of the parties to the present suit, Sh. Ram Swaroop deposed in Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:10:14 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 23 of 25 Amit Kumar Yadav vs. Atul Gupta favour of respondent No. 1/plaintiff as PW-2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant No. 1 as DW-2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
8. Another argument very strenuously put forth on behalf of the appellant was that the documents dated 16.5.1996 executed by the father in favour of the respondent No. 1/plaintiff were forged and fabricated documents created after the death of the father who died in the year 1997. In my opinion, this argument is totally without any merit for the reason that the documents being the agreement to sell, general power of attorney, receipt, etc. dated 16.5.1996 includes a registered document being the Will which was registered with the sub-Registrar on the date of its execution i.e. 16.5.1996. Therefore, this argument that the documents were fabricated after the death of Sh. Kundan Lal in 1997, is therefore rejected."
(emphasis supplied by me)
65.Even in the case at hand, the Defendant has shown in his favour a registered GPA and a registered will, Ex.DW-2/1, which has been proved by DW-2, the official witness from the sub-registrar's office. Thus, he may not be the owner in the complete sense but certainly has rights in terms of Section 202 of the Indian Contract Act, as explained by the Hon'ble High Court and further, after the demise of Mr. Rameshwar Yadav, the registered will also must take effect. The documents being registered, cannot be called fake and forged, especially in absence of any evidence to that effect at all. As observed by the Hon'ble Delhi High Court, it was not required by the Defendant herein to examine attesting witnesses in support of the will.
66.Thus, looked at from any angle, the Plaintiffs have not put Digitally signed by VAIBHAV VAIBHAV PRATAP PRATAP SINGH SINGH Date:
2025.05.31 17:10:17 +0530 CS SCJ No. 58221/2016 & 59022/2016 Page No. 24 of 25 Amit Kumar Yadav vs. Atul Gupta forth a better case than the Defendant and on a preponderance of probabilities, the case of the Plaintiffs is not more probable than the Defendant's. The Plaintiffs have failed to show a better title than the Defendant.
CONCLUSION
67.In view of the above discussion, all the issues in both the suits are decided in favour of the Defendant and against the Plaintiffs. As a result, both the suits are dismissed.
68.Digitally signed copy of this judgment be kept in both the files.
69.Both files be consigned to Record Room, after due compliance, as per rules.
Pronounced by me in the Open Court on 31.05.2025 VAIBHAV Digitally by VAIBHAV signed PRATAP PRATAP SINGH Date: 2025.05.31 SINGH 17:10:23 +0530 (VAIBHAV PRATAP SINGH) Civil Judge, Patiala House Courts New Delhi District, Delhi CS SCJ No. 58221/2016 & 59022/2016 Page No. 25 of 25 Amit Kumar Yadav vs. Atul Gupta