Delhi District Court
Smt. Manjit Kaur vs Sh. Baldev Singh on 23 July, 2016
IN THE COURT OF SH. SHAILENDER MALIK:ADJ16(C)
TIS HAZARI COURTS: DELHI
Civil Suit No. 246/16/05
Unique ID No. 02401C1047632005
In the matter of :
Smt. Manjit Kaur,
D/o Late Sh. Kartar Singh,
Widow of Late Sh. Manjit Singh,
R/o C79, First Floor,
Gali No. 6, Virender Nagar, New Delhi. ....Plaintiff
vs.
1.Sh. Baldev Singh, S/o Late Sardar Ram Singh, R/o 6 WZ, Mukherji Park, Subhash More, Delhi.
2. Sh. Lokesh Kumar, (Property Dealer), RZR206, L Kumar Properties, 50 Ft. Road, Near Daler Mehndi Farm Nihal Vihar, Village Nilothi, Delhi.
3. Sh. Shiv Karan, Son of Not Known, R/o Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
4. Sh. Devi Ram, Son of Not Known, R/o Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
CS No. 246/16/05 Page No. 1/175. Sh. Raj Kumar, Son of Not Known, R/o Khasra No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
6. Sh. Gurmej Singh, Son of Not Known, R/o of Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
7. Sh. Sewa Singh, Son of Not Known, R/o of Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
8. Sh. Gorkha Son of Not Known, R/o Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
9. Sh. Babu Lal Son of Not Known R/o Kh. No. 12/21, Nihal Vihar, Village Nilothi, Delhi.
10.Smt. Gurdev Kaur, D/o Late S. Ram Singh, Permanent R/o Abbotts Road, South Hall, MIDDLX U.B.I.1H.H., ENGLAND.
Presently available at: C79, Ist Floor Gali No. 6, Virender Nagar, New Delhi.
11. Sh. Parveen Kumar, Son of Sh. Ranveer Singh, R/o F372A, Sudershan Park, Basai Darapur New Delhi. ...Defendants Date of institution of suit : 21.11.2005 Date when reserved for orders : 15.07.2016 Date of decision : 23.07.2016 CS No. 246/16/05 Page No. 2/17 JUDGMENT 1 This is suit for possession and permanent injunction. Plaintiff claims to be owner of property i.e. plot of land measuring 300 sq. yards being part of Khasra No. 12/21, situated in colony known as Nihal Vihar, Block5, Village Nilothi, Delhi (hereinafter referred as 'suit property'), having purchase the same from her aunt/bua/defendant no.10 for sale consideration of Rs. 1,35,000/. It is stated that since the suit property was situated in an unapproved area/locality. Therefore, registration of sale deed from the office of subregistrar was not allowed. However, said documents such as Agreement to Sell, registered and notarized General Power of Attorney, receipts, possession letter and Will etc. all dated 05.03.2001 were executed by defendant no.10 for sale of the suit property in favour of the plaintiff.
2 It is stated that originally suit property belongs to Balwant Singh and Bharat Singh. Those owners sold 100 sq. yards of the suit property to one Hardev Singh by virtue of an Agreement to Sell, General Power of Attorney, receipts, affidavit all dated 12.02.1988. Remaining 200 sq. yards of land was sold by above said owners to Maninder Singh and Harvinder Singh by virtue of Agreement to Sell, General Power of Attorney, affidavit dated 12.02.1988. Thereafter, above said purchasers of two portions of the suit property namely Maninder Singh, Harvinder Singh as well as Hardev Singh jointly sold the suit property measuring 300 sq. yards to Smt. Gurdev Kaur/defendant no.10 herein for sale consideration of Rs.1,20,000/ on 04.04.1997 by virtue of sale documents CS No. 246/16/05 Page No. 3/17 such as Agreement to Sell, registered General Power of Attorney, Will, receipt and affidavit. However, it is stated that original of some of those said documents were misplaced by defendant no.10 as such certified copy of the same were obtained from the office of SubRegistrar, Delhi.
3 Defendant no.1 is stated to be real Uncle of plaintiff as well as real brother of defendant no.10. Defendant no.10 is stated to be permanent resident of UK. Plaintiff is stated to be a widow lady who had become widow in early age of her life, in 1994. In order to have security in her life, defendant no.10 who was owner of the suit property and permanently residing at UK, offered to plaintiff to sell the suit property, accordingly plaintiff purchase the same on 05.03.2001 vide aforesaid documents. It is stated that plaintiff being already a widow, to add to her misery, plaintiff had a blind child. Plaintiff used to be away, most of the time by staying at parental home at Punjab, therefore, she could not visit the suit property for about two years on account of illness of her child and old age father who subsequently expired in 2004.
4 It is further mentioned in the plaint that in September 2005 when plaintiff visited the suit property, she was shocked to find that the defendant no. 1 to 9 have illegally trespassed and encroached upon the suit property. Upon inquiries it was revealed that defendant no.1 by taking advantage of absence of plaintiff has encroached upon the suit property in connivance with the defendant no.2. Defendant no.1 and 2 further illegally transfer the possession of suit property to defendant no. 3 to 9 by inducting them in the suit CS No. 246/16/05 Page No. 4/17 property. They (defendant no. 3 to 9) allegedly raised illegal construction over the suit property with the nullified intentions. Plaintiff stated to have asked the defendant no.1 to 9 to refrain from indulging into illegal activities' construction over the suit property. However, defendant no.1 to 9 rather started threatening the plaintiff. Plaintiff stated to be lodged the complaint to the plaintiff on 29.10.2005 and 05.11.2005, 07.11.2005 however no action was taken. While alleging defendant no.1 to 9 are continuously raising illegal construction over the suit property, present suit was filed seeking the relief of decree of possession of suit property i.e. plot of land measuring 300 sq. yards being part of Khasra No. 12/21, situated in colony known as Nihal Vihar, Block5, Village Nilothi, Delhi against defendant no. 1 to 9 and have further paid decree for permanent injunction to restrained defendant no. 1 to 9 from selling, transferring or in any manner creating any third party interest in respect of suit property.
5 After the service of summons upon defendant no.4, 5, 7, 8 and 9 even by publication in the newspaper when they did not appear, they were proceeded exparte on 13.09.2007. It came to the notice of Ld. Predecessor of this Court that defendant no.1 despite being served with the summons and even after putting appearance failed to file the WS despite given opportunities.
6 Defendant no.2 filed the WS taking the objections therein that plaintiff has suppressed material facts, suit is without cause of action qua defendant no.2. It is pleaded that the defendant no.2 is owner in possession of suit CS No. 246/16/05 Page No. 5/17 property/firstly by way of adverse possession since 1989 and is running milk dairy therein, moreover, in year 2003 defendant no.1 started creating disturbance in peaceful use and enjoyment of the property, on the ground of being owner and having registered sale documents in his name in the name of her sister Ms. Gurdev Kaur who had empowered him by virtue of GPA dated 07.05.1997 to transfer the suit property in any manner. In order to avoid uncalled for hindrance in peaceful possession of property by defendant no.2, defendant no.2 entered into registered sale documents with defendant no. 1 in respect of suit property. After execution of such sale documents defendant no.1 also handed over all the original documents of the suit property to defendant no.2. It is pleaded that plaintiff has manipulated the facts, whereas the true facts are that defendant no.10 (from whom plaintiff claims to have purchase the suit plot) had already handed over original of sale documents to defendant no.1 at the time of execution of GPA in his favour. Defendant no.1 thereafter, handed over all those documents to defendant no.2 upon execution of sale documents in his favour. It is pleaded that now plaintiff inclusion with defendant no.10 has filed the present suit only with the view to extract money. It is alleged that the plaintiff being the greedy is unnecessarily creating trouble for others. It is also stated that plaintiff has been involved in the criminal case for forging the passport. It is further pleaded that the plaintiff is not giving the number of suit plot, whereas claiming to be the owner of the same. As such in the absence of given proper particulars property in dispute, suit is also liable to be dismissed on this ground.
CS No. 246/16/05 Page No. 6/177 Case of the plaintiff is denied on merits. Ownership of the plaintiff in respect of the suit property has been denied. It is pleaded that plaintiff is well aware even prior to the institution of the suit that defendant no.2 is the owner in possession of suit property and also having the original documents in his possession. It is stated that defendant no. 10 was not entitled to execute sale documents in favour of plaintiff without revoking/withdrawing the power of attorney which she had given in favour of defendant no.1. Plaintiff thus has not got any right in the suit property.
8 From the pleadings come on the record, predecessor of this court has framed following issues on 05.08.2008:
1. Whether the plaintiff is entitled to the relief of possession and permanent injunction as claimed? OPP
2. Whether the plaintiff has no cause of action for filing the present suit? OPD
3. Whether the defendant has become owner by way of adverse possession as claimed in the preliminary objection no.3 in the written statement? OPD
4. Relief.
9 In order to substantiate her case, plaintiff has examined four witnesses PW1 plaintiff Manjit Kaur, PW2 Om Prakash UDC, SubRegistrar, Janak Puri, PW3 is O.P. Chaudhary from Notary Public SubRegistrar, Janak PuriII, Dharmender Kumar Draftsmen.
CS No. 246/16/05 Page No. 7/1710 It is important to not here that only defendant no. 2 was contesting the suit, however, during the time when evidence of plaintiff was being recorded when none appeared on behalf of the defendant no. 1 and 2 and matter was listed for cross examination of PW1, defendant no. 1 & 2 were proceeded Ex parte on 30.04.2010. Although, defendant no. 1 Baldev Singh appeared. But no application for recalling the exparte order was moved. It is also important to note here that an application under Order 1 Rule 10 CPC was moved on behalf of the applicant Pawan Kumar who sought to be impleaded as a party in the suit on the ground that he had puchased 100 sq. yds portion of the plot in question from defendant no. 2. However, said application of applicant was dismissed vide order dated 25.01.2014 by Ld. Predecessor of this court.
11 I have heard ld. Counsel for the parties and have gone through the record carefully. My findings on each of the above issues are following: 12 ISSUE NO. 2 (Whether the plaintiff has no cause of action for filing the present suit?) Onus to prove this issue was on defendant. However, on meaningful reading of the plaint and the evidence as come on the record, I find that suit cannot be held to devoid of case of action. When plaintiff claims to be the owner of the suit property and seeks relief of possession and injunction from any angle, suit cannot be held to be devoid of cause of action. Therefore, issue stands decided against the defendant and in favour of plaintiff.
CS No. 246/16/05 Page No. 8/17 13 ISSUE NO. 3(Whether the defendant has become owner by way of adverse possession as claimed in the preliminary objection no.3 in the written statement? ) Onus to prove this issue was also on the defendant no. 2 as defendant no. 2 has taken a specific plea in the written statement that he has been in possession of the property in question since 1989 and has been running milk dairy from there. Thus, at first instance, defendant no. 2 claimed to be the owner of the property in question by way of adverse possession. Moreover, it is further pleaded in the written statement that in order 2003 when defendant no 1 started creating disturbance, defendant no. 2 purchased the property in question from defendant no. 1 and by entering into the registered sale document.
14 As stated above, defendant no. 2, during the course of trial when PE was being recorded and stopped appearing and thus was proceeded exparte. He not only failed to cross examination PW1 but as pleaded in his written statement thus this issue can be decided against the defendant for want of evidence as there is no evidence regarding adverse possession of defendant no. 2 or regarding purchase of the property in question by him from defendant no. 1.
15 ISSUE NO. 1(Whether the plaintiff is entitled to the relief of possession and CS No. 246/16/05 Page No. 9/17 permanent injunction as claimed?) Onus to prove this issue was on the plaintiff. At the very outset before we discussed the evidence as come on the record, it is required to be mentioned that in a suit for possession, plaintiff has to establish is title over the suit property. It is also very important proposition of law that even if defendant has failed to establish his defence still the plaintiff is required to establish all those basic facts which are necessary for grant of relief to the plaintiff. Mere failure of defendant in not proving his defence, by itself is not ground to decree the suit straightway. The case of the plaintiff has to be examined independent of failure of defendant to prove his defence. Keeping this proposition in mind, let us examine, the case of the plaintiff.
16 Plaintiff Manjit Kaur has appeared in the witness box as PW1, she in her affidavit of examination in chief has testified all those facts as are stated in the plaint. PW1 claims to be the owner of the property in question measuring 300 sq. yds. Being part of Khasra No. 12/21 Village Nilothi. PW1 claimed to have purchased the property from her aunt Smt. Gurdev Kaur. PW1 in para3 of her affidavit of examination in chief testifies that she purchased the property from Smt. Gurdev Kaur/ defendant no. 10 by way of documents like Agreement to sell, GPA, Receipt, Possession Letter, Will, Affidavit, all dated 05.03.2001. PW 1 says that she and her aunt/ defendant no. 10 had appeared before Sub Registrar where Will dated 05.03.2001 and GPA dated 05.03.2001 were duly registered. All these sale documents are Ex.PW1/2 to Ex.PW1/6 and Registered Will and GPA are Ex.PW1/7 and Ex.PW1/8. PW1 has further testified in para4 of affidavit of examination in chief that suit property was a vacant plot of land CS No. 246/16/05 Page No. 10/17 measuring 300 Sq. Yds. originally belongs to Balwant Singh and Bharat Singh, out of that plot of land one portion of 100 Sq. Yds was sold by them to Hardev Singh for sale consideration of Rs. 15,000/ by virtue of Agreement to Sell dated 12.02.1988, Notarized GPA, Receipt, Notarized Affidavit dated 12.02.1988. All these documents are collectively exhibited as Ex.PW1/9. PW1 says that remaining 200 sq. yds. Plot was sold to Maninder Singh and Harvinder Singh by virtue of documents like Agreement to Sell, GPA, Affidavit dated 12.02.1988 which are collectively exhibited as Ex.PW1/10.
17 PW1 further says that above mentioned Hardev Singh being owner of 100 sq. yds and Maninder Singh and Harvinder Singh being joint owner of 200 sq. yds jointly sold the complete plot of 300 sq. yds. to Gurdev Kaur / defendant no. 10 for sale consideration of Rs.1,20,000/ vide Agreement to Sell dated 04.04.1997, Registered and Notarized GPA dated 04.04.1997, Receipt, Registered Will and Affidavit all collectively exhibited as Ex.PW1/11 to Ex.PW1/14. Certified copies of Registered Will and GPA registered dated 04.04.1997 are Ex.PW1/15 to Ex.PW1/17.
18 In order to get corroboration to the evidence of PW1, PW2 Om Prakash UDC from Sub Registrar Janak Puri had appeared who had also testified regarding execution and registration of GPA dt 05.03.2001 by Gurdev Kaur in favour of plaintiff Ms. Manjeet Kaur Ex,PW1/8 as well as Will dt 05.03.2001 executed by Gurdev Kaur in favour of plaintiff which is Ex.PW1/7. Plaintiff has also examined one witness PW3 Sh. O. P. Chaudhary / Notary Public, however, CS No. 246/16/05 Page No. 11/17 his evidence remained incomplete and thus cannot be read in evidence. PW4 is Dharmender/ Draftsman who has proved the site plan Ex.PW1/1.
19 Having considered the evidence as come on the record, precise issue for consideration is whether plaintiff has been able to establish ownership in respect of property in question. This issue is relevant because plaintiff is seeking relief of possession of suit property by claiming herself to be the owner. Thus, ownership is required to be proved being most important component of the suit. Plaintiff claims to be the owner on the basis of documents Ex.PW1/2 to PW1/6 as well as registered GPA and Will Ex.PW1/7 & PW1/8. Admittedly, there is no registered sale deed in favor of plaintiff. In this regard it is stated in the evidence as well as submitted by the counsel for the plaintiff that since the property in question is situated in an unapproved locality, therefore, sale deed was not allowed to be registered. Now, even if I take such explanation, for non execution and registration of sale deed, to be on the face of it, if I examine the documents of sale Ex.PW1/2 is an agreement to sell between Smt. Gurdev Kaur and Plaintiff. This document is not registered. Though a seal of Notary Public has been put on this document but document cannot strictly be stated to be lawfully notarized as there is no certification of Notary required under Notary's Act 1952 and Rules made thereunder. Therefore, this document cannot be considered to be legally notarized. Moreover, if we go through agreement to sell Ex.PW1/2, it is mentioned in para1 of the document that possession has been handed over from buyer to seller. If at the time of execution of such agreement to sell , in part performance of the same, possession has been handed over from CS No. 246/16/05 Page No. 12/17 seller to buyer then such document was required to be registered as provided under Section 17(1A) of Indian Registration Act. Moreover, in case of an agreement to sell, same is required to be executed on the stamp paper of the amount equivalent to what is required to be paid in case of execution of sale deed, as per Article 23A of Stamp Act. Thus, this document is neither registered nor properly notarized.
20 If we consider other documents, Ex.PW1/3 is possession letter, Ex.PW1/4 is unregistered GPA. This GPA also does not mention that the attorney is being executed towards the sale of the property in question. Thus, this GPA Ex.PW1/4 is without consideration within the meaning of Section 202 of Indian Contract Act. Ex.PW1/5 and PW1/6 are affidavit and receipt. Let us now consider two registered documents, i.e. registered GPA and registered Will dt 05.03.2001 Ex.PW1/7 & PW1/8.
21 Will dt 05.03.2001 is Ex.PW1/7 executed by Smt. Gurdev Kaur. Such will first of all has relevance only when the executant of the same has expired, in the absence of any evidence to show that Smt. Gurdev Kaur/ Defendant no. 10 herein has expired this Will cannot operate to convey any legal right in respect of property. Moreover, this Will has not been properly proved. Mere exhibition of a document does not dispense with the proof of the same as per law. A Will as per Section 68 of Indian Evidence Act, is required to be proved by examining the attesting witness of the same. Even if a Will is registered still the attesting witness of the same is required to be examined for proper proof of the Will.
CS No. 246/16/05 Page No. 13/17Same has not been done in the present case. Now, if we consider the registered GPA Ex.PW1/8, even this document cannot be considered to be a document of Sale. Perusal of this document would show that nowhere it is mentioned that such GPA is executed for sale consideration. It is not mentioned that executant has sold the property in favour of plaintiff nor the amount of sale consideration is mentioned. Therefore, plaintiff cannot take the benefit of Section 202 of Indian Contract Act to consider such GPA to be irrevocable GPA for consideration.
22 Thus, from examining above said documents, I find that none of those documents convey any legal right, title in the property in question, in favour of plaintiff. As a general rule as provided under Section 54 of Transfer of Property (TP) Act as well as Section 17 of Registration Act a sale of an immovable property can be effected only by a registered sale deed. Documents like GPA, agreement to sell, will etc could have been some relevance only when they are either legally executed in terms of Section 53A of TP Act or GPA is for consideration and thus acceptable under Section 202 of Contract Act but none of those elements have been even proved in the documents relied upon by plaintiff to establish her title over the property. Although the judgment of Supreme Court in "Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana"
(2012) 1 SCC 656 though was pronounced in year 2012, but the ratio laid down in that judgment is reiteration of well established legal proposition. Thus, I find that by any angle documents Ex.PW1/2 to Ex.PW1/8 do not convey any legal right in favour of plaintiff.CS No. 246/16/05 Page No. 14/17
23 Matter can be appreciated from another angle. Plaintiff have mentioned in the plaint as well as in the evidence that originally the suit property was a vacant portion of land measuring 300 sq. yds. owned by Balwant Singh and Bharat Singh. Those joint owners stated to have sold 100 sq. yds of that plot to one Hardev Singh by documents like agreement to sell, notarized GPA, Receipt, affidavit all dated 12.02.1988 which are collectively Ex. PW1/9. Now, if I go through these documents, first of all, all these documents also suffer similar flaw / defect which I have already noted above regarding documents Ex.PW1/2 to PW1/8. Moreover, if we go through the agreement to sell dt 12.02.1988, it is mentioned that Balwant Singh and Bharat Singh have executed that document only as a attorney of Ameer Singh and Ram Kumar and Ors. Thus, Balwant Singh and Bharat Singh was only attorney of the owners whose names are mentioned in the document but the document of title of those owners have not been placed on record. Even the attorney in favour of Bharat Singh and Balwant Singh, on the basis of which they had executed documents Ex.PW1/9 for 100 sq. yds land have also not been placed on record or proved as per law.
24 Similarly, it is further mentioned in the evidence of PW1 that another portion of 200 sq. yds. of property in question was sold by those Balwant Singh and Bharat Singh in favour of Maninder Singh and Harvinder Singh by similar documents' dt 12.02.1988 which are collectively Ex.PW1/10. Even these documents Ex.PW1/10 also suffers from similar defects as none of these CS No. 246/16/05 Page No. 15/17 documents are registered nor properly notarized. It has already been noted above that these documents were executed by Balwant Singh and Bharat Singh only as a attorney of owners of the property. But neither the attorney nor the documents of title has been proved. Thus, complete chain of title is not established.
25 As per the case of plaintiff, Maninder Singh on the basis of documents Ex.PW1/9 and Harvinder Singh and Hardev Singh on the basis of documents Ex.PW1/10, as owner sold jointly the 300 sq. yds land plot to Smt. Gurdev Kaur by documents like agreement to sell, notarized GPA, receipt, registered will, affidavit all dated 04.04.1997 which are Ex.PW1/11 to PW1/14. Once I have already concluded that title in favour of Maninder Singh as well as Harvinder Singh and Hardev Singh has not been lawfully conveyed, they cannot obviously convey a better title than they themselves have. Thus, from documents Ex.PW1/9, Pw1/10 as well as from document Ex.PW1/11 to PW1/14, I find that it is not established that Gurdev Kaur had lawfully became the owner of the property in question. If that being the situation, on this count also, it can be concluded that plaintiff has not got a lawful title from Gurdev Kaur. Thus, for the reasons above , I find that when very claim of the plaintiff of being owner is not proved. The documents as relied upon do not even remotely establish a lawful entitlement to claim possession, then I find that plaintiff has failed establish her case for relief of possession or injunction. Consequently issue stands decided against plaintiff.
CS No. 246/16/05 Page No. 16/17RELIEF In view of my findings on Issue No. 1 suit of the plaintiff stands dismissed. Decree sheet of dismissal be prepared. File be consigned to record room after due compliance.
ANNOUNCED IN THE (SHAILENDER MALIK)
OPEN COURT ON ADJ16 (CENTRAL)
23.07.2016 TIS HAZARI COURTS
DELHI
CS No. 246/16/05 Page No. 17/17