Delhi District Court
Ralia Ram Kapoor ( Deceased) Through Lrs vs D.L.F. United Pvt. Ltd on 28 November, 2024
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IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.226/2018
CNR NO. DLWT03-000478-2018
IN THE MATTER BETWEEN: -
Ralia Ram Kapoor (since deceased)
Through LRs:- Smt. Shanti Kapoor
W/o Late Sh. Ralia Ram Kapoor (since deceased)
1). Ms. Shashi Kapoor
D/o Late Sh. Ralia Ram Kapoor
R/o C-329, Sushant Lok, Phase-I,
Gurgaon, Haryana.
2). Smt. Veena Khosla
W/o Sh. Vinod Khosla,
R/o C-329, Sushant Lok, Phase-I,
Gurgaon, Haryana.
..........................PLAINTIFF
VERSUS
1). DLF United Pvt. Ltd.
(A unit of DLF Housing and Construction Pvt. Ltd. and of DLF Universal Ltd.)
Now popularly known as DLF Universal Ltd.
DLF Centre, Sansad Marg, New Delhi-110001.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-1/45
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2). Sh. Vijay Kapoor
S/o Late Sh. Ralia Ram Kapoor
R/o H.No.19/27, First Floor,
Punjabi Bagh, New Delhi.
3). Kiran Kapoor
W/o Sh. Vijay Kapoor
R/o H.No.19/27, First Floor,
Punjabi Bagh, New Delhi.
.....................DEFENDANT
Suit filed on :- 28.05.1996
Judgment Reserved on :- 19.11.2024
Date of decision :- 28.11.2024
SUIT FOR RECTIFICATION OF SALE DEED
JUDGMENT
By this judgment, this Court shall adjudicate the suit filed by plaintiff against the defendants seeking rectification of sale deed dated 11.02.1974. Before adjudicating upon the issues framed in the present suit, it is vital to first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiff: -
1. The plaintiff has filed the present suit against the defendant Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-2/45 -3- seeking rectification/cancellation of sale deed dated 11.02.1974 in respect of property no. S-103, Greater Kailash, Part II, New Delhi [hereinafter referred to as 'suit property'] and further seeking decree in favour of plaintiff and against defendant no.1 thereby directing defendant no.1 to execute the sale deed in favour of the plaintiff by incorporating his name in place of Sh. Vijay Kapoor.
2. It has been averred in the plaint that plaintiff (now deceased) is the owner of the suit property and legal possession of the plot continued to be with the plaintiff. That, the plaintiff claimed to have purchased the plot from the DLF United Pvt. Ltd. New Delhi and made following payments: -
Receipt no. Date Amount/payment (Rs.)
401 19.08.1959 2,100/-
1450 29.04.1960 1,200/-
1923 21.07.1960 1,200/-
3267 06.04.1961 1,200/-
11715 09.01.1973 300/-
Total:- 6,000/-
3. It has been averred in the plaint that plaintiff made the entire payment of Rs.6,000/- by cheques to defendant no.1.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-3/45 -4- That plaintiff no.2 and 3 are the daughters of the original plaintiff namely Sh. Ralia Ram Kapoor (since deceased) and plaintiff no.1 namely Smt. Shanti Kapoor (also deceased) being the wife of late Sh. Ralia Ram Kapoor and all are class-I legal heirs and successors.
4. It has been further averred that on 11.02.1974, a sale deed was executed by the defendant no.1 in favour of his son Sh. Vijay Kapoor (defendant no.2), by mistake and fraud and registered with the Sub-Registrar, New Delhi on the basis of some alleged affidavits and on the basis of which an immovable property cannot be given or registered in the name of anyone else other than the name of the plaintiff. That defendant no.1 thus practiced a fraud because a wrong name was procured in the sale deed fraudulently due to an affidavit dated 24.12.1973 purported to have been given by the plaintiff. It has been further averred that the description of the said plot and the sale deed of the said plot was wrongly written in the sale deed by reason of mutual mistake of defendant no.1.
5. It has been further averred that plaintiff wrote a letter to defendant no.1 inquiring about the sale deed of plot in question and to this surprise received a letter no.L&R/GK2/94/RL 505 dated 17.01.1995 that the plot in question and its sale deed was wrongly been executed in Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-4/45 -5- the name of his son Vijay Kapoor enclosing a copy of the said affidavit. That, the plaintiff realized that the fraud has been practiced upon him and even otherwise no immovable property can be transferred on the basis of an affidavit. In such circumstance, plaintiff filed the present suit.
Pleadings of the Defendants: -
6. That, written statement was filed on behalf of defendants denying the allegations as contained in the plaint wherein, inter alia, following submissions were given by the defendants:-
7. Defendant no.1 has submitted in its WS that the LRs of Late Sh. Ralia Ram Kapoor never entered into an agreement to purchase a residential plot from defendant no.1 nor ever made any payment and hence plaintiffs have no right or title. That no law provides for filing a suit for rectification of a sale deed more so for such document which was executed and registered under the direction, in the presence and with the knowledge of late Sh. Ralia Ram Kapoor to whom the plaintiff no.1 to 3 are claiming their ownership in property and inclusion of their names after his death. That the suit of the plaintiff being not under any provision of law is not maintainable and deserves dismissal. That the present suit does not lie against Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-5/45 -6- defendant no.1 because there is no privity of contract between defendant no.1 (DLF) and plaintiffs. That in the circumstance of absence of specific pleadings with regard to the status of investment in purchase of the property the suit merits dismissal as the plaintiffs have pleaded about purchase of the property from a HUF and for its use and benefits while in the affidavit dated 24.12.1973 submitted by late Sh. Ralia Ram Kapoor, the property has been purchased from his personal funds. That it has been further confirmed in the legal notice dated 14.08.1992 issued by Sh. S.C. Arora, Advocate for and on behalf of Late Sh. Ralia Ram Kapoor to defendant no.2 Sh. Vijay Kapoor. That, the plaintiff has failed to fulfill the requirement of Order 6 Rule 4 CPC and the necessary particulars and items to establish the allegation of the fraud has been set out and no fraud can be inferred from the facts set out in the plaint. That the plaintiffs while referring and relying upon documents like Will and a declaration allegedly executed by late Sh. Ralia Ram Kapoor have neither supplied the copies of the same to the replying defendant no.1 nor have they sufficiently pleaded or stated the effect of the said alleged documents. That plaintiffs no. 1 to 3 even otherwise have no cause of action in their favour to file the present suit because Late Sh. Ralia Ram Kapoor himself had no remaining title claiming over the suit property after transferring the same. That plaintiff no.1 and Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-6/45 -7- 3 have not sought any relief of possession against defendant no.2 who is the owner and in possession of the suit property and hence the suit in the present form is not maintainable and liable to be dismissed. That the suit is time barred and is liable to be dismissed on this ground. In has been further submitted that defendant no.2 is the owner in possession of the suit property in dispute and Ralia Ram Kapoor was merely an agreement holder. That as per the affidavit filed by Sh. Ralia Ram Kapoor with the company it has been stated therein that the money so invested is self acquired and is not ancestral and that nobody except deceased Ralia Ram Kapoor has any claim or interest in the said amount. That, the said affidavit of the deceased Ralia Ram Kapoor on which basis the sale deed was executed is duly notarized and as such there is clear presumption in law that it is duly executed by deceased plaintiff and duly attested, legally valid and effective. That defendant no.1 acted bonafide so as to give effect to the wishes of the deceased Ralia Ram Kapoor and it was according to the normal practice and procedure. That the sale deed was executed and registered in favour of the defendant no.2 under the directions, instructions and within the knowledge of late Sh. Ralia Ram Kapoor and no objection was taken against the same for 30 years up till the filing of the suit. That after a gap of 30 years all these false allegations are put on defendant no.1 by way of Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-7/45 -8- untenable and illegal plea of correction and rectification of the sale deed probably on account of some internal family dispute.
8. Defendant no.2 has submitted in his WS that the suit is barred by limitation; that the present suit has been filed on 28.05.1996 whereas the sale deed, as per the averments made in para 5 of the plaint, was executed on 11.02.1974 and further the deceased came to know about the execution of the sale deed in the year 1992 and sent a notice to the answering defendant on 14.08.1992, hence the suit is barred by limitation. That the plaintiff has taken the contradictory pleas on the plaint as on one hand the plaintiff has stated in para 4 of the plaint that he is seeking the rectification of the instrument of sale deed to protect the interests of the members of the HUF and on the other hand, it has been stated in para no.5 of the same plaint that the name of the answering defendant has been incorporated in the sale deed on the basis of some false affidavit which amounted to playing of fraud upon the plaintiff. That, the deceased plaintiff Sh. R.R. Kapoor had got served a notice dated 14.08.1992 on the defendant no.2 through his advocate wherein it has been alleged that the subject matter of the suit was purchased by the deceased plaintiff in the name of the answering defendant as a Benami owner, being natural born son of the deceased.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-8/45 -9- That, as such in view of the stand taken by the deceased plaintiff in the notice dated 14.08.1992, there cannot arise any question of fraud having been played on the deceased/defendant as is averred by him in para 5 of the plaintiff dated 28.05.1996. That the required particulars of fraud have not been elaborated in the plaint as per the requirements of law of pleadings and, therefore, the suit merits dismissal on this ground as well. That, after the introduction of the Benami Transaction (Prohibition) Act, the plaintiffs are entitled to the relief which they have prayed for and, thus, the plaintiff has falsely taken the plea of fraud, and, thus, it is because of the hurdle posed by the Benami Transaction (Prohibition) Act that the plaintiff/ deceased has chosen to falsely set up the plea of fraud in his suit. That the plaint does not disclose any cause of actions and thus liable to be dismissed according to the provisions of Order 7 Rule 11 CPC. That even according to the admission made by the deceased plaintiff, he was aware of the execution of the sale deed of the plot in question, in favour of the defendant no.2, but he did not take any steps for the rectification of the instrument or seeking any declaration in his favour.
9. It has been further submitted that the deceased plaintiff was critically ill at the time when the suit property is purported to have been instituted and was not capable of Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-9/45 -10- understanding or doing the things mentally or physically, living alone since the institution of the present suit. That it appears that the vested interests have forged the signatures of the deceased plaintiff in order to be able to institute the present suit. That the plaintiff has failed to follow the provisions of Order 6 Rule 2 (3) CPC. That, the dates, sums and other particulars have not been mentioned both in letters and words. That the plaintiff has not come to the Court with clean hands as he deliberately omitted to mention the material particulars.
10.It has been further submitted that even though the payments mentioned from (a) to (d) were made to the defendant no.1 during the minority of the answering defendant, yet, it is submitted that the deceased plaintiff has been receiving the fabulous gifts both in money and kind from the near kith and kin of defendant no.2 on the occasions and celebrations of his birthdays. That the payments (a) to (d) were made by the deceased/plaintiff out of the collections made by him on such occasions and not out of his own earnings or savings. That the last of the payment as mentioned in clause (e) was made while the answering defendant was major and had been the partner of the deceased plaintiff in the firm namely Raka Trading Company.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-10/45 -11-
11.Defendant no.3 has not filed any separate WS and has relied upon the WS filed by defendant no.2 only.
Replication: -
12.No replication was filed on behalf of plaintiff to the written statement of the defendants.
Issues: -
13.From the pleadings of the parties, following issues were framed in the suit vide order dated 27.09.2005: -
(1) Whether the suit is barred by limitation? OPD (2) Whether the suit is without cause of action? OPD (3) whether the suit is not maintainable in its present form? OPD (4) Whether the plaintiff is entitled to the relief claimed in the plaint? OPP (5) Relief.
Plaintiff Evidence: -
14.In order to prove the case, plaintiff got examined Ms. Shashi Kapoor (daughter of deceased plaintiff) as PW-1, Sh. Heera Lal as PW-2, Sh. Sanjeet Kumar, LDC, Record Room Session, Tis Hazari Courts as PW-3 and Sh. Manish Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-11/45 -12- Kumar as PW-4.
a). PW-1 Ms. Shashi Kapoor led her evidence by way of affidavit which is Ex.PW-1/A wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex.PW-1/1 Plaint.
Ex.PW-1/2 Receipt no.401 dated 19.08.1959 for an
amount of Rs.2,100/-.
Ex.PW-1/3 Receipt no.1550 dated 29.04.1960 for an
amount of Rs.1,200/-.
Ex.PW-1/4 Receipt no.1923 dated 21.07.1960 for an
amount of Rs.1,200/-.
Ex.PW-1/5 Receipt no.3267 dated 06.04.1961 for an
amount of Rs.1,200/-.
Ex.PW-1/6 Receipt no.11715 dated 09.01.1973 for
am amount of Rs.300/-.
Ex.PW-1/7 Objections signed by the original
plaintiff.
Ex.PW-1/8 Letter dated 21.06.1972 written by
defendant no.1 to the original plaintiff.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-12/45 -13- Ex.PW-1/9 Letter dated 17.03.1973 written by secretary of defendant no.1 to the original plaintiff.
Ex.PW-1/10 Copy of death certificate of the original plaintiff.
Ex.PW-1/11 Copy of the death certificate of the wife of the original plaintiff Late Shanti Kapoor.
Ex.PW-1/12 Letter dated 12.12.1994 written by the original plaintiff to defendant no.1.
Ex.PW-1/13 Reply dated 17.01.1995 written by defendant no.1 to the plaintiff.
Ex.PW-1/14 Forged affidavit dated 24.12.1973.
Ex.PW-1/15 Public notice dated 17.04.1992 issued by the original plaintiff.
Ex.PW-1/16 Registered Will of the original plaintiff.
Ex.PW-1/17 Will of the wife of the original plaintiff.
Ex.PW-1/18 Certified copy of the order dated 24.02.2009 passed by Ld. Judge Ms. Kamini Lau.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-13/45 -14- PW-1 was also cross-examined at length by Ld. counsel for defendant no.2. During cross-examination document i.e. certified copy of the suit filed by her along with her sister before Hon'ble High Court of Delhi was exhibited as Ex.PW-1/D1, two affidavits as Ex.PW-1/D2 and affidavit of Veena Khosla as Ex.PW-1/D3, list of documents dated 31.03.1997 as Ex.PW-1/D4, the copies of legal notices dated 25.01.1991 and 14.08.1992 as Ex.PW-1/D5 and PW-1/D6.
Thereafter, PW-1 was also cross-examined at length by Ld. counsel for defendant no.1. During cross-examination the document i.e. letter/declaration dated 12.12.1994 was exhibited as Ex.PW-1/DX. At this stage, it is further pertinent to mention that objection was taken with respect to the para no.7 to 10, 19 to 21 of evidence affidavit of PW-1 being beyond pleadings and same is decided in the affirmative and not being read into.
b). PW-2 Sh. Heera Lal brought the summoned record pertaining to sale deed dated 11.02.1974 executed between DLF United Ltd. and Vijay Kapoor. That the said document is registered as document no.900, additional book no.1, volume no.3292, pages no.172 to 173. The witness exhibited the copy of the same as Ex.PW-2/1.
PW-2 was cross-examined on behalf of defendant no.1, Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-14/45 -15- though not cross-examined on behalf of defendant no.2.
c). PW-3 Sh. Sanjeet Kumar brought the original record of Civil Suit no.329/2004 titled Vijay Kapoor Vs. Shanti Kapoor & Ors. The witness stated that the Ex.PW-1/8 is the certified copy of judgment passed by Dr. Kamini Lau, Ld. ADJ on 24.09.2009 running into 80 pages.
PW-3 was cross-examined on behalf of defendant no.1, though not cross-examined on behalf of defendant no.2.
d). PW-4 Sh. Manish Kumar could not brought the summoned record being very old and not traceable. It is further stated that he cannot say whether it can be traced out in future or not. It was admitted to be correct by the witness that Ex.PW-1/15 appears to be on the letter head of DLF Universal Ltd. However, he cannot identify the signatures of the person appearing on the same as he joined the company in the year 1999. It was also admitted to be correct that the seal or exhibit Ex.PW-1/12 appears to be that of defendant no.1 company.
PW-4 was not cross-examined on behalf of defendants.
Thereafter, the plaintiff evidence was closed vide order dated 27.09.2013 and the matter was proceeded for defence evidence.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-15/45 -16- Defendants Evidence: -
15.In defence evidence, the defendant no.1/DLF got examined one witness i.e. DW-1 Sh. Manish Kumar, who tendered his evidence by way of affidavit which is Ex.DW-1/A. DW-1 also relied upon the documents already exhibited as Ex.PW-1/2, PW-1/6, PW-2/1 and PW-1/14.
DW-1 was also cross-examined by the counsel for LR no.1 of plaintiff at length.
Thereafter, DE was closed on behalf of defendant no.1/ DLF vide order dated 09.05.2024.
16.In defence evidence, the defendant no.3 Smt. Kiran Kapoor got examined one witness i.e. her son/SPA holder Sh. Paras Kapoor as D3W-1, who tendered his evidence by way of affidavit which is Ex.D3W-1/A. D3W-1 also relied upon the documents which are exhibited as under:-
Identification Description
Mark
Ex.D3W-1/1 Special power of attorney executed by
Smt. Kiran Kapoor in his favour (which
is exhibited as Ex.RW-1/A in his evidence
affidavit).
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-16/45 -17- Ex.D3W-1/2 Gift deed dated 24.11.2009 executed by Sh. Vijay Kapoor in favour of Smt. Kiran Kapoor (which is exhibited as Ex.RW-1/B in his evidence affidavit).
D3W-1 was also cross-examined by the counsel for LR no.3 of plaintiff at length.
Thereafter, DE was closed on behalf of defendant vide order dated 23.07.2024.
Decision with reasons: -
17.The final arguments have been extensively heard on behalf of both the parties at length and the entire record has been carefully perused. During the course of final arguments, the parties have placed reliance on their respective pleadings and evidence led on their behalf as stated herein above and not being repeated for the sake of brevity, rather the same has been discussed herein below at relevant instances. Further the written final arguments filed on behalf of parties form part of the record, which is a reiteration of the pleadings and evidence as discussed above.
18.The plaintiff side has placed reliance on the judgments as Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-17/45 -18- follows:-
a). Shakti Bhog Food Industries Ltd. Vs. Central Bank of India & Anr. (2020) 17 SCC 260.
b). Sayyed Jakir Vs. Navvikas Mandal Majalgaon & Ors.
Second appeal no.505 of 2022, Bombay High Court, Decided on 04.05.2023.
c). Ram Bhool Yadav & Ors. Vs. Gyan Kunj Construction Pvt. Ltd. & Ors. Second Appeal No.435 of 2020, High Court of Allahabad, Decided on 19.12.2020.
d). H.Siddiqui Vs. A. Ramalingam, (2011) 4 SCC 240.
e). Ishwar Bhai C. Patel Vs. Hariha Behera, (1999) 3 SCC
457.
f). LIC Vs. Ram Pal Singh Bisen, (2010) 4 SCC 491.
g). Man Kaur Vs. Hartar Singh Sangha, (2010) 10 SCC
512.
19.The defendant no.1/DLF has placed reliance on the judgments as follows:-
a). Saranpal Kaur Anand Vs. Praduman Singh Chandhok (2022) 8 SCC 401.
b). Saradamani Kandappan Vs. S Rajalakshmi & Ors. (2011) 12 Sec 18.
c). Puran Singh Vs. Bhaguram & Anr. (2008) 4 Scc 102.
d). Vasantha Vs. Rajalakshmi (2024) 5 Scc 282.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-18/45 -19-
20.The defendant no.3 has placed reliance on the judgments as follows:-
a). Jamila Begum (D) thr. LRs Vs. Shami Mohd. (D) thr. LRs & Ors, Manu/SC/1488/2018.
b). Bellachi (Dead) by LR Vs. Pakeeran, Manu/ SC/0443/2009.
c). Ranganayakamma and Ors. Vs. K.S. Prakash (D) by LRs and Ors, Manu/SC/7734/2008.
d). Om Prakash & Anr. Vs. Birbal Singh & Anr. 2015 Lawpack (Del) (58679) 2016.
21.Now, let us deliberate upon the factual matrix and evidences in the matter at hand and issue-wise findings thereon. Let us first decide the most substantial issues involved in the present matter conjointly i.e., issues no. 3, 1 and 2 pertaining to the maintainability of the suit. Thereafter rest of the issue(s) will be decided.
22.Issue No. (3), (1) and (2) -
(3) Whether the suit is not maintainable in its present form? OPD (1) Whether the suit is barred by limitation? OPD (2) Whether the suit is without cause of action? OPD The onus to prove these issues was upon the defendants.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-19/45 -20- That, the united and unanimous stand of the defendants is that, the sale deed of the suit property dated 11.02.1974 was executed by defendant no. 1/DLF in favour of sh. Vijay Kapoor/defendant no.2 on the basis of an affidavit dated 24.12.1973 submitted by late plaintiff with DLF. It is further the case of the defendants that, the defendant no. 2 and by virtue of a Gift deed dated 24.11.2009 defendant no. 3, are the owners and in possession of the suit property. That, further it has been contended that, the affidavit was sworn in by the late plaintiff on 24.12.1973 and pursuant thereto the sale deed was executed on 11.02.1974; while the plaintiff instituted the present suit as an after-thought after a lapse of more than twenty years on 28.05.1996 on the pretext of a letter dated 12.12.1994 written by late plaintiff addressed to DLF requesting to rectify the error in the sale deed of the suit property. That, the said letter dated 12.12.1994 was reverted vide reply dated 17.01.1995 to the effect that, the sale deed dated 11.02.1974 was executed qua the suit property by DLF in favour of defendant no. 2 on the strength of the said affidavit dated 24.12.1973, submitted by late plaintiff himself. Thus, it is further the challenge of the defendants, that there is no cause of action inhering in the plaintiff and that the suit is barred by limitation.
It is further pertinent to mention that, there are threefold Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-20/45 -21- challenges to the maintainability of the captioned suit i.e., suit being not maintainable in the present form, barred by limitation and devoid of cause of action. Let us deliberated upon each of them, individually and simultaneously. That, w.r.t the suit not being maintainable in the present form, it is pertinent to mention that, the present suit has been filed by the late plaintiff seeking rectification of sale deed dated 11.02.1974 on the grounds of mutual mistake and fraud and thereby executing a fresh sale deed qua suit property in name of the plaintiff (since deceased, represented through LRs).
In this regard, it is the contention of the defendants that, the present suit is not maintainable in the present form on the grounds, firstly, that plaintiff cannot seek rectification since there is no typographical or technical or arithmetical error/omission in the document and as such rectification is a mis-founded relief, especially of a duly registered sale deed. Secondly, the plaintiff ought to have instituted the suit seeking appropriate remedies of declaration of ownership, possession, cancellation of alleged affidavit dated 24.12.1973, sale deed dated 11.02.1974 and gift deed dated 24.11.2009 along with other consequential reliefs, since, defendant no.2 is the registered owner and in possession of the suit property by virtue of sale deed in question. Thirdly, relief of rectification on the basis of Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-21/45 -22- mutual mistake and on the basis of fraud are mutually- exclusive grounds. Furthermore, execution of the sale deed in question in favour of defendant no.2 is not a matter of mutual or any mistake at all, since same was done on the basis of the affidavit submitted by the plaintiff. Further, plaintiff has neither averred the instances of fraud nor filed any criminal complaint nor sought declaration/cancellation of the affidavit as well as the sale deed. Fourthly, all the reliefs were required to be valued on the market value of the suit property and ad-valorem Court fees should have been annexed on the same.
In this regard, it is worthy to mention that, the fulcrum of the case of the plaintiff is that, plaintiff has claimed himself to be the owner and in legal possession of the suit property by virtue of having applied for the suit property from DLF and having paid the entire consideration amount of Rs.6,000/- to the DLF, whereby the last payment was made on 09.01.1973. It is further the case of the plaintiff that, however, out of mistake, DLF stated the name of defendant no. 2 in the sale deed dated 11.02.1974 instead of the plaintiff and same needs to be rectified with the name of plaintiff in place of defendant no.2. That furthermore, the last payment was made by the plaintiff to DLF on 09.01.1973 and thereafter the plaintiff was called upon to submit necessary documents and deposit Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-22/45 -23- registration charges withing 15 days from letter dated 17.03.1973 i.e., Ex. PW-1/9. It is the case of the plaintiff that, plaintiff wrote a letter dated 12.12.1994 to DLF enquiring about the status of his application and sale deed qua suit property i.e., almost after 20 years of making the last payment pursuant to the demand letter dated 17.03.1973.
That, vide reply dated 17.01.1995 Ex. PW-1/14, DLF informed the plaintiff that, the same has been executed in favour of defendant no. 2 in accordance with the affidavit dated 24.12.1973 submitted by plaintiff with DLF. This further aggravated, the grievance of the plaintiff so much so, this alleged affidavit dated 24.12.1973 has been claimed to be fraudulent, though nowhere in the plaint or even during evidence, the plaintiff side has denied execution and signatures of the plaintiff on the same nor took resort of any handwriting expert to prove the allegations of forgery and fabrication. At this stage, it is pertinent to mention that Ld. counsel for defendant no.3 has correctly placed reliance on the judgment titled Bellachi (dead) by LRs Vs. Pakeeran (CA no.1785 of 2009), wherein it has been observed by the Hon'ble Apex Court that, the law does not envisage raising of a presumption in favour of undue influence and party alleging the same must prove the same subject to just Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-23/45 -24- exception depending upon facts and circumstances of each case. Further, Ld. counsel for defendant has correctly placed reliance in the case of Ranganayakamma & Ors. Vs. K.S. Prakash (dead) by LRs & Ors. CA no.3635 of 2008, wherein it was observed that, Order 6 Rule 4 CPC requires that complete particulars of fraud must be stated in the pleadings. It has been further observed that if a document is prima facie valid, a presumption arises in regard to its genuineness and the onus of proving otherwise lies on the person challenging the genuineness of such a registered document.
In light of the above, w.r.t the issue of non-maintainability of the suit in its present form, this Court is of the considered opinion that, firstly, at the outset it is the settled principle of law w.r.t seeking rectification of a contract or written instrument under Section 26 of the Specific Relief Act, 1963 [hereinafter "SRA"]. Section 26 of the SRA reads as thus:
"26. When instrument may be rectified (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then
(a) either party or his representative in interest may Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-24/45 -25- institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defense
-open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-
section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided, that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."
[Emphasis Supplied] Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-25/45 -26- That, a bare reading of the above said provision transpires that, a suit for rectification can be instituted only by the party to the said contract/instrument or their representative in interest. However, plaintiff is neither a party to the sale deed in question nor representative in interest of the registered owner i.e., defendant no. 2 nor present one is a suit for declaration of ownership, possession, cancellation and other consequential relief. Further, the scope and ambit of a suit seeking rectification has also been enshrined in Section 26, SRA itself i.e., through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express the real intention of the parties to the contract/ instrument. Upon a bare reading of the plaint, it is evident that plaintiff has sought rectification on the grounds of mutual mistake and fraud both, without specifying the mode, manner and instances as to mistake and fraud. Furthermore, plaintiff has also not distinguished between the two grounds nor has distinguished the individual roles of the defendant no. 1 and 2. It is further pertinent to mention that, the defendant no. 1 has categorically denied any mistake on their part in light of the alleged affidavit dated 24.12.1973, which has neither been challenged by the plaintiff in his plaintiff nor proved to be forged and fabricated; rather, the same has been left hanging by the plaintiff side for the reasons best known to them.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-26/45 -27- As such, it is apparent that, plaintiff cannot seek the relief of rectification being stranger to the sale deed in question and that, on the bare reading of the sale deed in question Ex. PW-2/1, there is neither any latent defect nor any patent defect visible distorting the import of the sale deed as per the understanding of the parties to the same i.e., DLF and defendant no. 2, thereby requiring the indulgence of this Court for any rectification thereof. Further, sale deed in question is a registered document of title of suit property in favour of defendant no. 2 and accordingly, it is not permissible as per law to seek mere rectification therein without seeking the appropriate remedy of declaration of ownership, possession, cancellation of documents/instruments in question along with other appropriate consequential reliefs. Accordingly, the suit of the plaintiff is not maintainable in its present form. Rather, the plaintiff has sought the relief of declaration of ownership in the garb of seeking the relief of rectification.
Further, w.r.t the issue of suit being barred by the law of limitation, it is pertinent to mention that, present suit has been instituted by the plaintiff on 27.05.1996 on the cause of action reckoned from 17.01.1995 under Article 113 of the Limitation Act, 1964 i.e., when the DLF replied to the letter dated 12.12.1994 sent by the plaintiff vide reply dated 17.01.1995, whereby DLF denied any mistake and Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-27/45 -28- further stated that, the sale deed dated 11.02.1974 has been executed in favour of defendant no. 2 on the basis of the affidavit dated 24.12.1973 submitted by plaintiff. In this regard plaintiff side has placed reliance on the case of Shakti Bhog Food Industries Limited vs. Central Bank of India &Anr., [(2020) 17 SCC 260], wherein it was held that, under Article 113, the limitation of three (3) years is to be computed from the last day when the cause of action arose and not the first day when the cause of action arose.
However, the said case is not applicable in the instant matter since, the suit of rectification filed by the plaintiff is itself not maintainable in its present form. At this stage, it is further pertinent to discuss the conduct of the plaintiff in so far as the plaintiff, has nowhere in the plaint, categorically mentioned the exact date on which he came to know about the execution of the sale deed in question. Rather, the plaintiff has portrayed that, he got to know about the sale deed in question only when he received the reply dated 17.01.1995, when the DLF denied to make the necessary rectifications. Rather, the letter dated 12.12.1994 written by plaintiff to DLF transpires that, even on 12.12.1994 the plaintiff was aware of the existence of sale deed in question in favour of defendant no.2 in so far as even in the letter dated 12.12.1994 Ex. PW-1/12, the plaintiff was not enquiring with respect to the status of his Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-28/45 -29- application and execution of the sale deed of the suit property. Rather the said letter is to the effect that DLF/defendant no.1 has committed an error in executing the sale deed by mistake and same needs to be rectified without stating the nature of the error and the rectification sought.
Further during cross-examination of PW-1, PW-1 was confronted with document Ex.PW-1/DX i.e. declaration dated 12.12.1994 executed by late plaintiff which categorically transpires that the fact of execution of the sale deed in question was well within the knowledge of the plaintiff since 23.06.1992. It is pertinent to mention that the declaration dated 12.12.1994 i.e. Ex.PW-1/DX has not been denied by PW-1 and was rather admitted. A perusal of Ex.PW-1/DX transpires that the plaintiff had stated therein that during his illness, DLF erred in presenting the sale deed of the suit property for registration declaring defendant no.2 as the vendee and has received the consideration from him. Though it is an admitted fact between the parties that the entire sale consideration was paid by plaintiff; however same cannot be assumed to be a conclusive proof making plaintiff has the vendee of the suit property, especially in light of Ex. PW-1/D6 i.e., legal notice dated 14.08.1992 issued by plaintiff. Ex. PW-1/D6 has not been denied by PW-1 in her cross-examination. A Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-29/45 -30- bare perusal of Ex. PW-1/D6 further transpire that, plaintiff has himself stated there in that, the suit property was purchased in the name of defendant no. 2 as benami.
Further, it is stated in Ex. PW-1/DX that as soon as the above erring of DLF came to the notice of the plaintiff, he gave a public notice in the newspaper on 23.06.1992 to the effect that plaintiff in the said public notice has claimed himself to be the owner of the suit property and denounced that defendant no.2 herein has no right, title, interest in the same. It is pertinent to mention that the said newspaper clipping dated 23.06.1992 in the newspaper 'Patriot' has been filed by the plaintiff side, however, has not been tendered in evidence for the reasons best known to them. This further categorically shows the conduct and contradictory stand of the plaintiff in various documents such as, plaintiff tried to portray that he got to know about the sale deed and affidavit in question in favour of defendant no.2 only on receipt of the reply dated 17.01.1995; however same stands contradicted by EX. PW-1/D6 and Ex. PW-1/DX. Further, in plaint it is stated that property was purchased by plaintiff out of HUF funds on the other hand, plaintiff has admitted that the suit property was purchased in the name of defendant no. 2 as benami. Accordingly, it can be deduced that the plaintiff was well within the knowledge of the fact of execution and Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-30/45 -31- existence of the sale deed in question in favour of defendant no.2 way back in the year 1992 and same has not been denied by PW-1; rather plaintiff has in fact stealthily not mentioned about these legal notices Ex. PW-1/D6 and newspaper notices Ex. PW-1/DX in the plaint for the reasons best known to the plaintiff.
In light of the above, it is pertinent to mention that since the plaintiff was aware of the existence of the sale deed in question in favour of defendant no.2 whether by virtue of mistake or fraud, then also the appropriate suit should have been instituted by the plaintiff within a period of 3 years from that date i.e. till June'1995 rather the present suit has been instituted in the year May'1996. At this stage, it is further pertinent to mention that, the plaintiff has acted against his own interests by not instituting the appropriate suit within time prescribed and as such the plaintiff has not acted in diligent and reasonable manner. At this stage, it is further noteworthy that, defendant no.1 has correctly placed reliance in the judgment of Saranpal Kaur Anand vs Praduman Singh Chandhok [(2022) 8 SCC 401], wherein it has been held as follows:
"22. Consequently, on application of the principle of demurrer, it has to be held, on the basis of the averments made in the plaint and the documents relied upon and admitted by the plaintiff, that even prior to 2008, the plaintiff was aware and had Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-31/45 -32- knowledge of the sale deed dated 23rd August 1969 by which the ownership rights were transferred to Tej Kaur. The plaintiff did not, in 2008, question and challenge the transfer, though she was fully aware that Tej Kaur had acquired ownership rights.
23. We have denoted the ambit and conditions of Section 17(1) of the Limitation Act, which is to protect rights of a party defrauded from lapse of time till he remains in ignorance of the fraud, or with reasonable diligence could have discovered the fraud. Section 17(1) does not assist a person who merely shuts his eyes in spite of circumstances requiring him to ascertain facts on which he would have discovered the fraud. Section 17(1) of the Limitation Act saves rights of the party defrauded from lapse of time as long as the party is not at fault on his own account. In the aforesaid factual background, it is apparent that the plaintiff was aware and had knowledge in October 2008 about execution and transfer of the ownership rights in favour of late Tej Kaur vide sale deed dated 23rd August 1969 executed by defendant No.3, Gurdev Singh Anand. Unadorned assertion in the plaint feigning ignorance as to the sale deed would not help, as in the facts as pleaded and accepted in the plaint, the plaintiff was required to state and indicate that ignorance was not due to failure to exercise reasonable diligence."
[Emphasis Supplied] Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-32/45 -33- Further, w.r.t the issue of suit being devoid of cause of action, it is pertinent to mention that, cause of action is a bundle of facts, which bestows a right to sue upon the party aggrieved which is primarily founded upon the existence of a legal right and violation thereof. At this stage, it is further pertinent to mention that there is no specific act or penultimate act, which in itself forms cause of action. In the present matter, the cause of action is based upon the knowledge of the plaintiff of the alleged act of mistake or fraud and the same has not been pleaded in the plaint or supported by any evidence as per the requirement of law U/O 6 Rule 4 CPC and rather the same has been vaguely worded without necessary details thereof. Since, there is no presumption qua the invalidity of a registered document, therefore, the plaintiff was specifically required to plead the date, on which the plaintiff attained the knowledge of the alleged mistake or fraud and also should have stated the mode and manner in which the same was committed. It is further pertinent to mention that the plaintiff did not make any averments to this effect which are necessary for constituting the cause of action in favour of plaintiff in the present matter. Further, the plaintiff has not even been able to categorically plead and distinguish between the grounds of mistake and fraud.
Further, this Court draws its strength from the latest ruling Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-33/45 -34- passed by the Hon'ble Supreme Court of India in the case of Ramisetty Venkatanna & Anr. Vs. Nasyam Jamal Sahib & Ors. (Civil Appeal 2717 of 2023) as follows:-
5.1 In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under: -
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and un-repentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints.
The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:
"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-34/45 -35- Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"
5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-35/45 -36- court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-36/45 -37- but abuse of process of court and the law.
[Emphasis Supplied] Upon a careful and meaningful reading of the entire material available on record, there is no iota of doubt that the plaintiff has merely tried to create an illusion of cause of action in the garb of sending letter dated 12.12.1994 to institute the present suit since no cause of action was subsisting in favour of the plaintiff for filing a suit for rectification of a registered sale deed, since the plaintiff was well within the knowledge of the sale deed in question and did not take any steps for challenging the same and further the plaintiff has approached this Court with unclean hands so much so plaintiff side has concealed material and complete facts from this Court such as Ex. PW-1/D6 and Ex. PW-1/DX. It is further pertinent to mention that though the present suit deserved to be dismissed on the face of it being not maintainable, nevertheless, the plaintiff was granted opportunity to prove his case since it involved meticulous and mixed question of law and fact pertaining to the factum of mistake and fraud as well as limitation. However, the plaintiff has grossly failed in placing the complete and correct material before the Court and has rather created an illusion of having a cause of action and even then also the plaintiff did not bother to institute an appropriate suit seeking necessary reliefs.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-37/45 -38- Hence, issue no. 1 to 3 are decided against the plaintiff (through LRs) and in favour of the defendants.
23.Issue No. (4) -
(4) Whether the plaintiff is entitled to the relief claimed in the plaint? OPP The onus to prove this issue was upon the plaintiff (since deceased through LRs).
At the outset, it is pertinent to mention that, the plaintiff instituted the instant suit seeking the relief of rectification of sale deed dated 11.02.1974 on the ground of mistake and fraud along with the direction to defendant no. 1/DLF to execute the sale deed in favour of the plaintiff by incorporating his name in place of Sh. Vijay Kapoor i.e., defendant no. 2.
It is further pertinent to mention that as already discussed above, this Court is of the considered opinion that the suit of the plaintiff is not maintainable in the present form, is devoid of cause of action and is further barred by the law of limitation. As such, the present issue deserves no further discussion. Let, the findings recorded herein above with respect to issue no.1 to 3 be read as part and parcel of the present issue as well for brevity. Nonetheless, suffice it to Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-38/45 -39- say that the plaintiff has tried to seek the relief of declara- tion of ownership, possession and mandatory injunction in the garb of the present suit seeking the relief of rectifica- tion, thereby rectifying the sale deed in question by substi- tuting the name of plaintiff in place of defendant no.2 on the ground that since plaintiff has paid the entire consider- ation qua the purchase of suit property, as such he is the in- tending purchaser, though it is a matter of record that he is not the ultimate registered owner of the suit property and the converse cannot be sought merely by seeking rectifica- tion as per plaintiffs own whims and fancies in a registered sale deed without seeking declaration and cancellation to that effect along with possession, since defendant no. 1 has stated that defendant no. 2 is in the possession of the suit property and same is further bolstered by the testimony of PW-1.
Furthermore, it has come on record that DLF executed the sale deed in question in favour of defendant no.2 on the basis of the affidavit dated 24.12.1973 submitted by plain- tiff with DLF to the effect that the sale deed of the suit property may be executed in favour of defendant no.2 be- ing son of plaintiff and having been purchased from the self-acquired funds of the plaintiff, though in plaint it is stated that the same has been purchased from HUF funds. It is pertinent to mention that, the said affidavit has been Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-39/45 -40- tendered in evidence by plaintiff as Ex.PW-1/14. At this stage, it is further pertinent to mention that the crux of the case of the plaintiff rested upon the above said document and the plaintiff has grossly failed in challenging the same, so much so the plaintiff neither denied his signatures or ex- ecution of the said affidavit nor plaintiff sought cancella- tion/declaration of the said affidavit as null and void for the reasons best known to the plaintiff. It is further perti- nent to mention that the plaintiff in the entire plaint has kept mum on the aspect of execution of the affidavit dated 24.12.1973 and has merely stated it to be a fraudulent doc- ument without bringing any evidence to this effect on record.
It is further pertinent to mention that as per the version of plaintiff, plaintiff got to know about the sale deed in ques- tion only in response to letter dated 12.12.1994 Ex.PW-1/12 addressed to DLF. However, perusal of Ex.PW-1/12 transpires that the plaintiff was in fact aware of the sale deed in question in favour of defendant no.2 much prior to writing of the above said letter and same is bolstered by the content of the letter dated 12.12.1994, wherein it has been stated by the plaintiff that he is draw- ing the attention of DLF to the apparent glaring defect in the sale deed executed by DLF unilaterally with respect to suit property along with the request to rectify the mistake Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-40/45 -41- and the same is supported with an affidavit containing all the details of the payments made by the plaintiff with re- spect to the suit property and the copy of the sale deed. At this stage, it is further pertinent to mention that even in the said letter, the plaintiff has nowhere stated the nature of the mistake and rectification sought.
At this stage, it is further pertinent to discuss the cross-ex- amination of PW-1, who categorically stated that the late plaintiff was in possession of the sale deed and the affi- davit in question at the time of filing of the suit. However, the same was not filed in the original. Further, even PW-1 has nowhere denied or challenged the execution of the affi- davit dated 24.12.1973. It is further pertinent to mention that during the cross-examination of PW-1, PW-1 was con- fronted with Ex.PW-1/D1 i.e. the pleadings of the partition suit instituted by LR no.2 and 3 of the plaintiff in the year 1997, wherein the LR no.2 and 3 of the plaintiff herein have admitted that the plaintiff was always in possession of the original sale deed of the property in question, how- ever, same could not be filed due to demise of the plaintiff.
Further during cross-examination of PW-1, PW-1 was con- fronted with document Ex.PW-1/DX i.e. declaration dated 12.12.1994 executed by late plaintiff which categorically transpires that the fact of execution of the sale deed in Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-41/45 -42- question was well within the knowledge of the plaintiff at least since 23.06.1992. It is pertinent to mention that the declaration dated 12.12.1994 i.e. Ex.PW-1/DX has not been denied by PW-1 and was rather admitted. A perusal of Ex.PW-1/DX transpires that the plaintiff has stated therein that during his illness, DLF erred in presenting the sale deed of the suit property for registration declaring defen- dant no.2 as the vendee and has received the consideration from him. Though it is an admitted fact between the parties that the entire sale consideration was paid by plaintiff, but the same does not automatically vest the suit property in plaintiff without a title document in his favour. Further, it is stated therein that as soon as the above erring of DLF came to the notice of the plaintiff, he gave a public notice in the newspaper on 23.06.1992. It is pertinent to mention that the said newspaper clipping dated 23.06.1992 in the newspaper 'Patriot' has been filed by the plaintiff side, however, has not been tendered in evidence for the reasons best known to them. However, since the said document is available on record, it is to the effect that plaintiff made a public notice claiming himself to be the owner of the suit property and denouncing that defendant no.2 herein has any right, title, interest in the same. This further categori- cally shows and contradict the conduct and averments of the plaintiff, wherein plaintiff tried to portray that he got to know about the sale deed and affidavit in question in Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-42/45 -43- favour of defendant no.2 only on receipt of the reply dated 17.01.1995. Accordingly, it can be deduced that the plain- tiff was well within the knowledge of the fact of execution of the sale deed in question in favour of defendant no.2 way back in the year 1992 and same has not been denied by PW-1.
At this stage, it is further pertinent to mention that it has come on record that in the year 1992, the relationship of plaintiff and defendant no.2 became sour which led to is- sue of disbarring public notification dated 17.04.1992 i.e. Ex.PW-1/15, which further bolsters the claim of the defen- dant side that the present suit is nothing but a mere after- thought to divest defendant no.2 from the suit property and seek declaration of ownership in the garb of relief of recti- fication that too after a lapse of almost 20 years since the making of last payment by the plaintiff. Furthermore, plaintiff has malafidely kept silent on his sleeping over his rights, if any after this inordinate delay of 20 years without any explanation whatsoever.
At this stage, it is further pertinent to mention that plaintiff side has raised several objections, such as defendant no.1 has not been able to produce the original affidavit dated 24.12.1973, however, the plaintiff side has itself exhibited the same as Ex.PW-1/14 and never sought any challenge or Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-43/45 -44- declaration against the same. Further, the burden of prov- ing the case lies upon the plaintiff and plaintiff alone. It is the settled principle of law that any facts averred and chal- lenged by any party must be proved by said party. How- ever, plaintiff did not take any appropriate steps to prove their own case. The plaintiff side has further objected to the fact that defendant no.2 and 3 did not take the witness stand and that, the testimony of D3W1 is mere hearsay. However, even if it reflects upon the conduct of defendant no.2 and 3 nevertheless, the same does not go onto proving the case of the plaintiff by itself. It is a settled proposition that, the case of the plaintiff must stand on its own leg and cannot take advantage of the deficiencies and fall outs in the case of defendant; since the fundamental burden lies upon the plaintiff to prove his own case. Further the judge- ments relied upon by the parties, is not found squarely ap- plying to the peculiar facts and circumstances of the present case, as such they have not been relied upon. Fur- ther, the contradictions in the case of the plaintiff are visi- ble to the naked eye upon a comprehensive reading of the entire material on record and same is not based on the tes- timony of D3W1, even if he is considered to be hearsay for the sake of arguments.
Hence, issue no. 4 is decided against the plaintiffs (since deceased through LRs) and in favour of the defendants.
Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-44/45 -45-
24.Issue No. (5) -
(5) Relief - In view of the findings given on issues no.(1) to (4), pleadings of the parties and evidence led by the parties, the suit of the plaintiff is not found to be maintainable and further the plaintiff has grossly failed in proving the burden cast upon him on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Let, decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH Date: 2024.11.28 17:32:32 +0530 (This judgment contains 45 pages and each page (DISHA SINGH) has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 28.11.2024 Suit No.226/2018 Ralia Ram Kapoor Vs. DLF United Pvt. Ltd. & Ors. Page-45/45