Delhi District Court
Rakam Singh vs Sita Ram on 10 July, 2015
In the Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
RCA No. 147/2009
Unique Case ID No.02402C0372572009
In the matter of:
Rakam Singh
s/o Shri Bhim Singh
r/o V155A, Arvind Mohalla
Ghonda, Delhi. .....Appellant/Plaintiff
Versus
1. Sita Ram
s/o Shri Mata Prasad
r/oV43, Gali no.1,
Brahm puri, Delhi.
2. Smt Gulab Devi(deceased)
w/o Shri Musai Ram
r/o Khasra no. 134,
Som Bazar Extension,
Delhi.
3. Shri Manoj Kumar Sharma
s/o Shri Ramakant Sharma
r/o 9/876 Prem Gali,
Gandhi Nagar, Delhi ......Respondents/Defendants
Date of institution : 16.12.2009
Arguments heard on : 02.07.2015
Date of Judgment : 10.07.2015
J U D G M E N T
RCA: 147/2009 1 of 15
1. This is an appeal against the impugned judgment and decree dated 5.11.2009 passed by the court of Shri Naresh Kumar Malhotra, ld. ACJEast), KKD, vide which the Ld. Trial Court had dismissed the suit of the plaintiff.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff had filed a suit for specific performance, declaration and injunction against the defendants.The suit was dismissed vide judgment dated 23.4.2004. Plaintiff filed an appeal and thereafter the ld. ADJ set aside the judgment and decree with the direction to take the original documents Ex.PW1/2 and Ex.PW1/3 i.e. agreement to sell and receipt dated 13.10.1997 on record and to decide the matter afresh after considering the documents Ex.PW1/2 and Ex.PW1/3. Ld. Appellate court also gave direction to decide the application u/s 151 of CPC filed by Shri Chander Prakash. Same was allowed vide order dated 23.2.2007.
3. Brief facts of the case are that the plaintiff entered into an agreement for the purchase of plot measuring 200 square yards forming part of khasra no. 154 situated in village Gujran Khadar, Delhi(hereinafter referred to as suit property) on 13.10.1997 for a total consideration of Rs. 3 lakhs. The amount was paid by the plaintiff to the defendant no.1. Defendant no.1 executed an agreement to sell and receipt on 13.10.1997 and the RCA: 147/2009 2 of 15 defendant no.1 assured to execute the sale deed.
4. It is further averred that the plaintiff had also taken the possession of the suit property except a small portion of one room which remained in possession of the defendant no.2 and had asked to the defendant no.1 to take necessary steps in furtherance of agreement dated 13.10.1997, but defendant no.1 avoided the same on one pretext or the other and further averred that he was always ready and willing to perform his part of agreement but the defendants threatened the plaintiff to create third party interest and further averred that the plaintiff also waited in the office of Sub Registrar but defendant did not turn for the execution of the sale deed.
5. It is further averred that the defendant no.1 had assured to the plaintiff to reach the Sub Registrar's office and execute the sale deed on 1.7.1999, the plaintiff waited there from 10.00 a.m. to 4.00 p.m., but the defendant no.1 did not turn up and in the evening, the defendant no.1 had refused to execute the sale deed and threatened to the plaintiff to transfer the suit property to someone else.
6. It is further averred that the defendant no.2 is the real sister in law of Smt Khazani Devi, who was the previous owner of the suit property and Smt Khazani Devi had sold the suit property to the defendant no.1. It is also averred that at the time of execution RCA: 147/2009 3 of 15 of documents by Smt Khazani Devi in favour of the defendant no.1, both the defendant no.2 and Khazani Devi had assured that the defendant no.2 will vacate the portion of the suit property very soon and further averred that the defendant no.2 has no right, title and interest in the suit property. It is further averred that the plaintiff has revoked the license of the defendant no.2 orally on 1.7.1999 and further averred that the defendant no. 1 prepared certain documents in favour of the defendant no.3 and the plaintiff came to know in June,1999 that those documents were prepared backdating the same and showing that the same were prepared prior to the documents of plaintiff.
7. It is also averred that the defendant no.3 had filed a suit for specific performance of the agreement executed between the defendant no.1 and defendant no.3 in the court of Shri S C Malik, ld. ADJ, Delhi, in that suit, the defendant no.1 had denied the execution of any documents in favour of defendant no.3 and pleaded that defendant no.1 had not sold the suit property to the defendant no.3, nor executed any documents in favour of the defendant no.3. It is further averred that the defendant no.1 and 3 in collusion with each other want to frustrate the agreement of plaintiff and further averred that the documents prepared by the defendant no.3 are fake.
8. It is further averred that the defendant no.1 has no right , title RCA: 147/2009 4 of 15 and interest in the suit property after receiving the consideration and defendant no.3 has also no right, title and interest in the suit property. Plaintiff requested defendant no.1 to execute the sale deed in his favour, but the defendant no. 1 refused to execute the same and the plaintiff also requested defendant no. 3 not to claim the property on the basis of documents dated 17.2.1997.
9. Feeling aggrieved with the acts and conducts of the defendants, the plaintiff has filed the suit in the ld. Trial court and prayed for passing a decree of specific performance of contract in respect of agreement dated 13.10.1997 in favour of the plaintiff, prayed for passing a decree of permanent injunction, restraining the defendants from creating third party interest in respect of the suit property, prayed for passing a decree of mandatory injunction directing the defendant no.2 to hand over the physical vacant possession of the portion of the suit property as shown red in colour in the site plan and also prayed for passing a decree of declaration, declaring the documents dated 17.2.1997 as illegal.
10.Summons of the suit were issued to the defendants. Defendant no.1 and 2 had not filed any WS, whereas, the defendant no.3 and 4 have filed separate WS.
11.Defendant no.3 had filed written statement and has taken RCA: 147/2009 5 of 15
preliminary objections that the present suit is not maintainable. It is stated that he has already sold the suit property against a valid consideration on 14.9.2000 and 11.12.2000. The suit is not properly valued for the purpose of court fees and jurisdiction. On merit, it is averred that the defendant no.3 had purchased the suit property from the defendant no.1 vide agreement to sell dated 17.2.1997 and the possession of the suit property was handed over to the defendant no.3 on the same day. It is also averred that the defendant no.3 is in lawful possession of the suit property since then and he further sold the suit property on 14.9.2000 and 11.12.2000 much prior to the service of the notice in this case. The plaintiff is not in possession of the suit property. The defendant no.1 was not competent to execute any agreement in favour of the plaintiff. It is also averred that the defendant no. 3 had filed the suit against the defendant no.1 for specific performance of agreement and the plaintiff was very well aware of the same. The suit was decided as compromised by the court of ld. ADJ Delhi. The plaintiff had also filed an application u/o 1rule 10 of CPC before the Ld. ADJ. The defendant no.1 made statement before the ld. ADJ on 5.5.1999 to the effect that he had executed the agreement to sell and received full consideration from the defendant no.3. Plaintiff has no locus standie to file the present suit and prayed for the dismissal of the suit.
RCA: 147/2009 6 of 15
12.The defendant no.4 had filed written statement and has taken preliminary objection that the plaintiff has not approached to the court with clean hands. It is denied that no agreement was executed by the defendant no.1 in favour of the plaintiff. As per the defendant no.4, the defendant no. 1 has sold the suit property to the defendant no.3 vide agreement to sell dated 17.2.1997 and physical possession of the same property was given to the defendant ho. 3 on the same day. Defendant no.3 sold a portion of 60 square yards to the defendant no.4. It is denied that the defendant no.1 and 3 are in collusion with a view to frustrate the agreement of the plaintiff and prayed for the dismissal of the suit.
13.The plaintiff has filed the replication to the WS of the defendant no.3 and 4 and denied the averments made in the written statement of defendant no. 3 and 4 and reiterated the contents of his plaint.
14. From the pleadings of the parties, the ld. trial court had framed the following issues:
(i) Whether the plaintiff is entitled to a specific performance of contract in respect of agreement dated 13.10.1997 as prayed for ? OPP.
(ii) Whether the plaintiff is entitled to permanent injunction, as prayed for ?OPP.
(iii) Whether the plaintiff is entitled to mandatory injunction as prayed for ?OPP.
(iv)Whether the plaintiff is entitled to declaration, as prayed for?
RCA: 147/2009 7 of 15 OPP (v)Whether the present suit is not valued properly for the
purpose of court fees and jurisdiction, as alleged?OPD3&4
(vi) Relief.
15. In order to prove his case, the plaintiff has examined himself as PW1 and Shri Sube Singh as PW2. He was cross examined by the ld. Counsel for the defendant no.1.
16.Defendant no.1, 2 and 3 were proceeded exparte during the pendency of the suit. Ld. Appellate court had allowed the application u/o 1 rule 10 of CPC filed by Chander Prakash, Thereafter, Chand Prakash also did not appear and he was also proceeded exparte on 30.1.2009.
17.The ld. trial court vide it's impugned judgment and decree dated 5.11.2009 dismissed the suit of the plaintiff.
18.Feeling aggrieved, the appellant/plaintiff has filed the present appeal against the impugned judgment and decree.
19.The notices of the appeal were issued to the respondents. The respondent no.1 to 3 were proceeded exparte.
Whereas,respondent no.4 has filed reply to the appeal.
20.The record of the trial court is also requestioned and perused.
21. Heard the ld. counsel for the parties and perused the record.
22.According to the impugned judgment dated 5/11/2009 of the ld. ACJ, it was found that the GPA executed in favour of defendant no.1 Sita Ram was cancelled by Smt Khazani Devi, the original RCA: 147/2009 8 of 15 seller and thereafter, she executed the sale deed in favour of Shri Ratnesh Jain and that too prior to the execution of the documents executed by defendant no.1/Sita Ram in favour of the appellant Rakam Singh. It is further observed that appellant has not made Ratnesh Jain as party and further not prayed any declaration for declaring the document executed by defendant no. 3 in favour of the defendant no.4 as null and void.
23.It is further observed that it was version of Ratnesh Jain that Khazani Devi has canceled the GPA executed by her in favour of Defendant no.1 and she executed the sale deed dated 8.2.1999 in respect of suit property in his favour. While holding this, it was observed that the appellant/plaintiff has not been able to prove the Issue no. 1 to 4, so the suit has been dismissed.
24.The original suit was filed for specific performance of contract,declaration and injunction against Sita Ram/defendant no.1, Gulab Devi/defendant no.2 and Manoj Kumar/defendant no.3, out of which, only Manoj Kumar filed the Written Statement and the said suit was dismissed, which was remanded back and again the suit was dismissed. The suit was remanded back on account of disposal of the application u/o 1 rule 10 of CPC.
25.In the first suit, which was contested by defendant no.3, plaintiff has filed photocopies of the documents executed by RCA: 147/2009 9 of 15 Khazani Devi in favour of defendant no.1 and photocopies of his documents and certified copies of another suit no. 59/1999 in between Manoj Kumar Sharma and Sita Ram. According to which, the present appellant moved an application in the said suit u/o 1 rule 10 of CPC. According to the order sheets of the said suit dated 16.9.1999, Ratnesh Jain also filed an application u/o 1 rule 10 of CPC and both these applications were allowed vide order dated 16.9.1999 by the court of Ld. ADJ. But later on, the said suit filed by Shri Manoj Kumar Sharma after impleadment of Ratnesh Jain was withdrawn on 12.12.2000 and at the same time, ld. Counsel for defendant Ratnesh Jain had pressed for his counter claim to be continued and it was held by the Ld. ADJ vide the same order that the counter claim of defendant no.2 was dismissed with the liberty to file a suit if preferred on the same cause of action and it is not known whether Shri Ratnesh Jain had filed separate suit at any time or not in respect of the suit property.
26.According to the order of the ld. ADJ, vide which first judgment of dismissal of the suit was set aside. It was directed that the original documents of the appellant to be taken on record and application u/o 1 rule 10 of CPC filed by Chander Prakash to be decided on merit and suit be decided afresh. Thereafter, the appellant/Rakam Singh had tendered the documents in evidence.
RCA: 147/2009 10 of 15 He also examined PW2 Shri Sube Singh. According to his
testimony, agreement to sell and receipt were executed in favour of Rakam Singh in his presence. Neither appellant nor PW2 Sube Singh were cross examined in any manner.
27.After remanding back, the suit was contested by the defendant no.4 Chander Prakash by filing the Written statement, but defendant no.4/Chander Prakash was also proceeded exparte. Defendant no. 4 was deriving his title in the suit property, from defendant no.3 Shr Manoj Kumar Sharma . In view of above, appellant has documents in his favour i.e. GPA, agreement to sell etc., from the year 1997 which were executed by Sita Ram/defendant no.1, on the basis of GPA, executed by Khazani Devi in his favour. Then there are certified copies of proceedings which had taken place in the suit which were filed by Manoj Kumar Sharma. Smt Khazani Devi had cancelled the GPA and executed the sale deed in favour of Ratnesh Jain and now defendant no.4/Chander Prakash claim that defendant no.1 Sita Ram had sold the property to defendant no.3/Manoj Kumar Sharma vide agreement to sell dated 17.2.1997 and physical possession of the property was handed over to the defendant no. 3 who further sold part of 60 square yards to defendant no.4 i.e. Chander Prakash . It is further submitted that defendant no.
2/Gulab Devi had already expired, so Ratnesh Jain, Manoj RCA: 147/2009 11 of 15
Kumar Sharma and Chander Prakash are claiming title over the plot in question on the basis of sale deed and other documents.
28. Neither Manoj Kumar Sharma nor Chander Prakash have placed on record any document before the court nor it is disclosed to the court as to whether Ratnesh Jain has filed separate suit or not. So, observation of the ld. Trial court in this respect that according to Ratnesh Kumar Jain, Khazani Devi has canceled the GPA executed in favour of the defendant no.1 is without any basis and devoid of merit. At no point of time, sale deed has been produced before the court during the trial. Even Manoj Kumar Sharma and Chander Prakash have also not been able to prove the documents before the court. The observation of the ld. Trial court to the extent that in the suit filed by defendant no. 3, Ratnesh Jain was impleaded as party u/o 1 rule 10 of CPC and that Ratnesh Jain had claimed that Khazani Devi had canceled the GPA executed by her in favour of defendant no.1 and thereafter, executed the formal sale deed in the year 1999 in his favour is without any basis and no evidence has been lead in any manner in this respect in the said suit. The said suit was withdrawn by Manoj Kumar and Shri Ratnesh Jain was given liberty to file the suit for specific performance and her counter claim was dismissed.
So, in the absence of the documents executed in favour of RCA: 147/2009 12 of 15
Ratnesh Jain, Manoj Kumar Sharma and further in favour of Chander Prakash , the documents of the plaintiff cannot be disbelieved in any manner.
29.The original documents have been proved by the appellant in the Lower court vide Ex. PW1/1, Ex. PW1/3, Ex.PW1/10, Ex.PW1/11 and Ex.PW1/12.
30.According to Ex.PW1/2, the plot in question measuring 200 square yards was sold to the appellant for some of Rs. 3 lakhs and according to the terms and conditions of the same, the vacant possession of the suit property was handed over to the appellant. These documents were witnessed by one Sube Singh, who has been examined as PW2 and his testimony remained unrebutted and unchallenged as none of the defendant had been able to cross examine the witness.
31.Now according to the documents if the payment of Rs. 3 lakhs was made and possession was also handed over, it was required to be registered. Agreement to sell has been prepared on stamp paper of Rs.2, so ,it is neither sufficiently stamped, nor, a registered document. Hence, on the basis of this insufficiently stamped and unregistered document, the relief of specific performance of the contract cannot be granted . Accordingly, the suit of the appellant/plaintiff is dismissed for relief praying for decree of specific performance.
RCA: 147/2009 13 of 15
32.According to the suit of the appellant/plaintiff, he has also prayed for decree of permanent injunction in his favour and against the defendants restraining the defendants from creating third party interest in respect of suit property. Initially, in the suit, there were defendant Sita Ram, Gulab Devi and Manoj Kumar Sharma. Later on, one Chander Prakash was also added as defendant no.4 and according to the pleadings, Sita Ram and Manoj Kumar Sharma had already created third party interest , so this relief cannot be granted in favour of the appellant/plaintiff. Hence, the suit of the appellant/plaintiff for decree of permanent injunction is also dismissed.
33.Appellant has also prayed for passing a decree of mandatory injunction for seeking possession of one vacant room from the defendant no.2. According to defendant no.4's Written statement, defendant no.2 Gulab Devi expired and appellant/plaintiff failed to amend the suit to that extent in any manner. So, at present it is not known whether Gulab Devi/defendant no.2 is surviving or died, or who is in possession of the room, which was in her possession. So, the appellant/plaintiff has also not been able to prove this fact, being inconclusive evidence.Hence, decree of mandatory injunction cannot be granted in his favour. Accordingly, suit for the said relief is also dismissed.
34.The appellant/plaintiff has also prayed for decree of declaration RCA: 147/2009 14 of 15 in his favour and against the defendant no.3 Manoj Kumar Sharma for declaring the document dated 17.2.1997 allegedly executed by defendant no.1 in favour of defendant no.3 illegally without any consideration and back dated. During the trial photocopies of the agreement to sell, affidavit, receipt, possession letter, WILL, GPA have been placed on record by the defendant no.4 Chander Prakash executed by defendant no.3 in his favour. But the same have not been proved by defendant no. 4 in any manner. The documents allegedly executed by defendant no.1 in favour of defendant no.3 for which cancelation is sought by the appellant/plaintiff have not been proved on record b y the defendants or by the plaintiff in any manner, either from photocopies or the original of the same. So,the plaintiff has also not been able to prove this relief in his favour in any manner. Accordingly, the relief of declaration, as prayed for by the appellant, declaring the alleged document of 1997 executed by defendant no.1 in favour of defendant no.3 is also dismissed. Accordingly, the appeal being merit less is dismissed. Decree sheet be prepared. Trial court record be returned with the copy of the judgment. File be consigned to the record room. Announced in open Court on :10.07.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi RCA: 147/2009 15 of 15 RCA: 147/2009 16 of 15