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[Cites 8, Cited by 0]

Delhi District Court

Smt. Urmal Gujral vs Sh. Som Nath on 2 March, 2016

     IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
           JUDGE­09: TIS HAZARI COURTS : DELHI

Suit No. 258/14 (Old Suit No. 179/06)
Unique Case ID No. 02401C1073402006

Smt. Urmal Gujral 
W/o Sh. Iqbal Singh 
R/o 10/128, Tihar - I, 
Subhash Nagar, 
New Delhi­110027.                                              ........... Plaintiff.


                                        VERSUS 

1.     Sh. Som Nath
       S/o late Sh. Kanshi Ram 
       R/o WZ­300, Tandur Chowk, 
       Village Tihar, Hari Nagar, 
       New Delhi. 

2.     Sh. Rajiv Mighlani
       S/o Sh. L.R. Mighlani, 
       R/o 104, Mausam Apartment, 
       West Enclave, Pitampura, 
       Delhi­110034.

3.     Union of India,
       (Though the Secretary) 
       Ministry of Urban Development
       Land & Development Office, 
       Nirman Bhawan, New Delhi.                       ......... Defendants. 

Date of institution of the suit             :     20.11.2006
Date on which order was reserved            :     11.02.2016
Date of decision                            :     02.03.2016

Suit No. 258/14 (Old Suit No. 179/06)                                 Page No. 1/36
 SUIT U/S 31 OF SPECIFIC RELIEF ACT FOR CANCELLATION
OF SALE DEED/ AGREEMENT TO SELL? DECLARATION AND
        PERMANENT & MANDATORY INJUNCTION

JUDGMENT

The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint, are that the plaintiff is the owner of the property bearing no. 10/64, Tihar­I, Subhash Nagar, New Delhi area measuring 100 sq. yards having purchased the same from the defendant no. 1 and his mother late Smt. Bassi Devi on the basis of the Agreement to Sell, General Power of Attorney, Will and Affidavit etc., all dated 07.04.1988. It has been further stated that the plaintiff has been in continuous and uninterrupted peaceful possession of the same since the date of its purchase i.e. since 07.04.1988. It has been further stated that late Sh. Kanshi Ram, the father of the defendant no. 1 was the lessee of the said property, which was allotted to him by the Land and Development Office i.e. the defendant no. 3 herein. It has been further stated that after the death of Sh. Kanshi Ram, Smt. Bassi Devi and the defendant no. 1 became the owners of the suit property and got their names substituted in the records of the Land & Development Office on 15.03.1988. It has been further stated that subsequently, Smt. Bassi Devi and the defendant no. 1 sold the said property to the plaintiff on 07.04.1988. It has been further stated that the General Power of Attorney was executed by Smt. Bassi Devi and the defendant no. 1 in favour of Sh. Iqbal Singh, the husband of the plaintiff and the same was duly registered Suit No. 258/14 (Old Suit No. 179/06) Page No. 2/36 with the office of the Sub­Registrar. It has been further stated that the Will executed by Smt. Bassi Devi in favour of the plaintiff was duly registered with the office of the Sub­Registrar and the Will executed by the defendant no. 1 was also duly registered with the office of the Sub­ Registrar concerned. It has been further stated that the peaceful and vacant possession of the suit property was already with Sh. Girish Gujral, the son of the plaintiff, who was a tenant in the said property. It has been further stated that the legal possession of the suit property was transferred to the plaintiff by the aforesaid documents. It has been further stated that the plaintiff came to know that after the death of Smt. Bassi Devi, the intentions of the defendant o. 1 became dishonest and he got his name substituted in the office of the Land & Development Office on the basis of the false and fabricated documents and suppressing the fact that the defendant no. 1 alongwith his mother had sold the property in question to the plaintiff way back in the year 1988. It has been further stated that the defendant no. 1 got the said property mutated in his name by the defendant no. 3 vide letter dated 08.08.2006. It has been further stated that thereafter, the defendant no. 1 in criminal conspiracy with the defendant no. 2 and others also executed false Agreement to Sell/ Sale Deed in favour of the defendant no. 2 for the sale of the suit property by the defendant no. 1 to the defendant no. 2 registered as document No. 16496, Additional Book No. II, Volume No. 14107, Pages no. 109 to 116 dated 18.08.2006. It has been further stated that the defendant no. 1 was not having any right, title or interest in the suit property after the sale of the suit property to the plaintiff on 07.04.1988. It has been further stated that the alleged Agreement to Sell dated 18.08.2006 is illegal, null and Suit No. 258/14 (Old Suit No. 179/06) Page No. 3/36 void and the said Agreement to Sell/ Sale Deed cannot confer any right, title or interest in respect of the said property in favour of the defendant no. 2. It has been further stated that the mutation letter dated 08.08.2006 is also null and void. It has been further stated that the husband of the plaintiff got issued a legal notice to the defendant no. 3 on 14.08.2006 objecting to the conversion of the suit property in the name of the defendant no. 1 and thereafter, the plaintiff came to know that the defendant no. 1 had already got his name substituted on 08.08.2006. It has been further stated that the husband of the plaintiff then wrote another letter to the defendant no. 3 for cancellation of the substitution made by them in the name of the defendant no. 1. It has been further stated that the plaintiff also sent a legal notice dated 22.09.2006, but, no reply thereof was received by the plaintiff. It has been further stated that the plaintiff also got a public notice published in the newspaper and hence, the present suit.

2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of declaration to the effect that the Sale Deed/ Agreement to Sell dated 18.08.2006 executed by the defendant no. 1 in favour of the defendant no. 2 be declared as null and void and the same be cancelled. The plaintiff has also prayed for a decree of Permanent Injunction restraining the defendants no. 1 and 2 and their agents etc. from entering into any transaction of any nature whatsoever in respect of the suit property on the basis of the substitution letter or the Agreement to Sell/ Sale Deed. The plaintiff has also prayed for the costs of the suit.

3. Separate written statements have been filed on record by the Suit No. 258/14 (Old Suit No. 179/06) Page No. 4/36 defendants no. 1 and 2, but, the stand of both the defendants in their respective written statements is almost the same. The defendants no. 1 and 2, in their separate written statements, have taken the stand that the documents dated 07.04.1988, which have been relied upon by the plaintiff, are false, sham and bogus. The defendants have put forth the version that Smt. Bassi Devi was working as a maid servant in the house of the plaintiff, who happens to be a School Teacher. It has been further stated that the husband of the plaintiff was a retired bank officer. It has been further stated that only after purchase of the property bearing no. WZ­300, Tihar Village in January 1988, Smt. Bassi Devi became desperate due to the financial constraints and forced to take financial assistance. It has been further stated that the plaintiff and Sh. Iqbal Singh took advantage of this situation and they agreed to pay the amount on the precondition that Smt. Bassi Devi and her son will have to execute some documents. It has been further stated that instead of seeking execution, the plaintiff with a malafide intention have got some documents executed, but, neither the defendant no. 1 nor the deceased mother of the defendant no. 1 had ever any occasion to doubt the integrity of the plaintiff and her husband. It has been further stated that the defendant no. 1 and her mother with a view to repay the huge financial liability had shifted to newly acquired smaller property bearing no. WZ­300, Village Tihar, New Delhi and the suit property was let out from time to time with the involvement of Sh. Iqbal Singh so as to ensure maximum rent and timely payment. It has been further stated that the rent was being collected at the instance of Smt. Bassi Devi during her lifetime and thereafter, at the instance of the defendant no. 1, until the end of 2004, Suit No. 258/14 (Old Suit No. 179/06) Page No. 5/36 when the aforesaid Sh. Iqbal Singh informed the defendant no. 1 about the liquidation of the loan. It has been further stated that after having completed the repayment of the loan with the accrued interest, the defendant no. 1, after securing the mutation in her sole name has sold the suit property to the defendant no. 2 for a total sale consideration of Rs. 4,90,000/­ on execution of the Agreement to Sell dated 18.08.2006, Special Power of Attorney dated 18.08.2006, Affidavit dated 18.08.2006, Receipt dated 18.08.2006 and the GPA dated 18.08.2006. It has been further stated that the vacant and peaceful possession of the suit property was also handed over by the defendant no. 1 to the defendant no. 2, who was, in fact, occupied by the erstwhile tenants. The defendant no. 1 has alleged that after acquiring the news of the said sale transaction, the plaintiff and her husband resorted to wholesome manipulation in the documents only to assert on the suit property. It has been further stated that since the plaintiff and her husband never purchased or intended to purchase the suit property either in the year 1988 or thereafter, there was no occasion that the defendant no. 1 and her mother late Smt. Bassi Devi executed any document for sale of the suit property in favour of the plaintiff. It has been further stated that the defendant no. 1 for the first time came to know about the possession of the said documents from the Court record. It has been further stated that the plaintiff and her husband failed to assert their right in respect of the suit property for the last 18 years. The defendants have denied that the plaintiff is the owner of the suit property. It has been admitted by the defendants that late Sh. Kanshi Ram was survived by the defendant no. 1 as his son and by late Smt. Bassi Devi as his wife. It has been further stated that Sh. Kanshi Ram Suit No. 258/14 (Old Suit No. 179/06) Page No. 6/36 died in the year 1977 and thereafter, the defendant no. 1 and his mother Smt. Bassi Devi came in possession and succeeded to the said property. It has been further stated that the defendant no. 1 and her mother got the mutation in their names in respect of the suit property on 15.03.1988. It has been denied that Smt. Bassi Devi or the defendant no. 1 ever sold the suit property to the plaintiff by way of documents dated 17.04.1998. It has been denied that the peaceful and vacant possession of the suit property was ever handed over by the defendant no. 1 or by his mother to Sh. Girish Gujral. The defendants have denied that Sh. Girish Gujral ever came to be a tenant in the suit property or any portion thereof. The defendants have denied that after the death of Smt. Bassi Devi, the intention of the defendant no. 1 became dishonest. It has been further stated that Smt. Bassi Devi died in the year 1995 and the property in question was got mutated by the defendant no. 1 in the year 2006 almost after 11 years from the date of death of Smt. Bassi Devi and as such, the question of any dishonest intention on behalf of the part of the defendant no. 1 does not arise. The defendants have denied the existence of any criminal conspiracy in between the defendants no. 1 and 2. It has been further stated that the husband of the plaintiff has got no right to serve any legal notice upon the Land & Development Office. The receipt of the legal notice dated 12.09.2006 has been denied by the defendants. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with exemplary costs.

4. In addition to the abovesaid stand, which is there in the written statement of the defendant no. 1, the defendant no. 2 has stated that all the precautions available at the site were taken by the defendant Suit No. 258/14 (Old Suit No. 179/06) Page No. 7/36 no. 2 at the time of purchasing of the property in question. It has been further stated that the defendant no. 2 first ensured that the property in question was got mutated in the name of the defendant no. 1 and the house tax of the property in question was also in the name of the defendant no. 1. It has been further stated that the electricity connection in the suit property was also in the name of the father of the defendant no. 1 and as such, the defendant no. 2 had no occasion to suspect any transaction of any kind. It has been further stated that the defendant no. 2 negotiated for purchasing the suit property after due diligence and thus, the defendant no. 2 is protected by Section 53 of the Transfer of Property Act. Defendant no. 2 has also prayed that the suit of the plaintiff be dismissed.

5. Written statement has also been filed on record by the defendant no. 3 stating therein that the property in question was originally leased out to Sh. Kanshi Ram vide lease deed dated 29.04.1967. It has been further stated that after the death of Sh. Kanshi Ram, his widow Smt. Bassi Devi and his son Sh. Som Nath applied for substitution on 07.01.1988. It has been further stated that after examination of the documents, the property was substituted in the names of Smt. Bassi Devi and Sh. Som Nath vide substitution letter dated 10.03.1988. It has been further stated that the substitution application was later on received from Sh. Som Nath on 18.07.2006 and the property in question was substituted in the name of Sh. Som Nath vide substitution letter dated 08.08.2006. It has been further stated that later on, a letter was received by the office of Land & Development Office on 18.08.2006, wherein, it was informed that on 07.04.1988 Smt. Bassi Devi Suit No. 258/14 (Old Suit No. 179/06) Page No. 8/36 and Sh. Som Nath sold the property in question to the plaintiff herein. It has been further stated that thereafter, Sh. Som Nath was requested vide letter dated 19.09.2006 to explain the reasons for applying substitution in his name. It has been further stated that however, the said letter was returned undelivered on 27.09.2006, but, in the meantime, a letter dated 07.09.2006 was received from Sh. Rajeev Miglani stating that he has purchased the property in question from Sh. Som Nath. It has been further stated that a conversion application was received from Sh. Rajeev Miglani on 29.09.2006 enclosing the attested copies of GPA and Agreement to Sell executed on 18.08.2006. It has been further stated that the conversion application was examined, keeping in view, the complaint of Sh. Iqbal Singh and it was found that Sh. Som Nath was playing fraud as he had already executed GPA and Agreement to Sell in favour of Sh. Iqbal Singh and Smt. Urmal Gujral on 07.04.1988. It has been further stated that it was decided to cancel the substitution letter dated 08.08.2006 and also reject the conversion application. It has been further stated that the cancellation of the substitution letter dated 08.08.2006 was issued on 28.12.2006 and the rejection of conversion application was also issued on 28.12.2006. It has been further stated that the rejection of conversion application had already been approved on 23.10.2006.

6. Perusal of the record of the case reveals that vide orders dated 07.02.2007, the plaintiff sought to withdraw her suit against the defendant no. 3 and the name of the defendant no. 3 was deleted from the array of the defendants by the Ld. Predecessor of this Court.

7. Separate replications to the separate written statements of the defendants no. 1 and 2 have been filed on record by the plaintiff Suit No. 258/14 (Old Suit No. 179/06) Page No. 9/36 reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statements filed by the defendants no. 1 and 2.

8. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 06.03.2007 :­

1) Whether the General Power of Attorney, agreement to sell and Will dated 07.04.88 are forged documents?OPD1

2) Whether the suit is without cause of action?OPD1

3) Whether the agreement to sell dated 18.08.2006 is a null and void document?OPP

4) Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP

5) Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP

6) Relief.

EVIDENCE :

9. The plaintiff has examined Sh. S.K. Verma, UDC from the office of the Sub­Registrar­II, Kashmere Gate, Delhi as PW1. This witness produced the records pertaining to the Will executed by Sh. Som Nath, registered on 07.04.1988 at serial no. 12061, Book No. III, Vol. No. 706 page 157. The original of the said Will, which was there in the file of the Court, was marked as Mark A by this witness. This witness also produced the copy of the Will dated 07.04.1988 executed by Smt. Bassi Devi, which was also registered with his office vide registration no.

Suit No. 258/14 (Old Suit No. 179/06) Page No. 10/36

12062 Book III, Vol. No. 706, page 158 on 07.04.1988. The original of the said Will was also in the Court file and the same was marked as Mark B by this witness.

10. The plaintiff has further examined Sh. S.S. Panwar, Head Clerk, from the office of Sub­Registrar Office, Kashmere Gate, Delhi as PW2. This witness produced the summoned record i.e. the General Power of Attorney executed by Smt. Bassi Devi and Sh. Som Nath, which was registered on 07.04.1988 at no. 14813 in Book No. IV, Vol No. 1607 pages 85 to 87. The original of the said GPA which was there on record was exhibited as Ex. PW2/A by this witness.

11. The plaintiff has further examined Sh. Yashpal, LDC, from the office of Sub­Registrar, Janakpuri, Delhi as PW3. This witness has stated that as per his record, an Agreement to Sell executed by Sh. Som Nath was registered on 18.08.2006 at registration no. 16496 in book no. I, Vol No. 14107 on pages 109 to 116. The certified copy of the said Agreement to Sell was exhibited as Ex. PW3/A by the said witness.

12. The plaintiff has examined herself as PW4 and in her evidence by way of affidavit Ex. P4, she has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. She has relied upon the General Power of Attorney dated 07.04.1988 as Ex. PW2/A on record. She has relied upon the Will dated 07.04.1988 executed by the defendant no. 1 in favour of the plaintiff as Mark A. This witness has further relied upon the Will dated 07.04.1988 executed by Smt. Bassi Devi in favour of the plaintiff as Mark B, the affidavit of the defendant no. 1 and Smt. Bassi Devi of January 1988 as Ex. PW4/B, receipt dated 07.04.1988 as Ex. PW4/C, House Tax receipts as Ex. PW4/D (1 to 3), water bill as Ex.

Suit No. 258/14 (Old Suit No. 179/06) Page No. 11/36

PW4/E(1 to 3), electricity bills as Ex. PW4/F(1 to 3), certified copy of the agreement to sell dated 18.08.2006 as Ex. PW3/A, legal notice dated 14.08.2006 as Ex. PW4/G, copy of the letter dated 18.09.2006 written by Sh. Iqbal Singh to the defendant no. 3 as Ex. PW4/H, copy of the legal notice dated 22.09.2006 as Ex. PW1/I, UPC receipt as Ex. PW1/J, AD receipts as Ex. PW4/K and the AD cards as Ex. PW4/L (1 to 3).

13. The plaintiff has further examined Sh. Shiv Chander as PW5 and this witness, in his evidence by way of affidavit Ex. P5 on record, has stated that he is the attesting witness to the General Power of Attorney executed by Smt Bassi Devi and Sh. Som Nath in favour of Sh. Iqbal Singh (the husband of the plaintiff), Will dated 07.04.1988 executed by Smt. Bassi Devi in favour of the plaintiff, Will dated 07.04.1988 executed by Som Nath in favour of the plaintiff and the receipt dated 07.04.1988 executed by Smt. Bassi Devi and Sh. Som Nath. This witness, in his evidence by way of affidavit Ex. P5, has further stated that the possession of the suit property was with the plaintiff ever since the same was purchased by the plaintiff from Smt. Bassi Devi and Sh. Som Nath.

14. The plaintiff has further examined Sh. Vijay Nagpal as PW6 and this witness, in his evidence by way of affidavit Ex. P6 on record, has stated that he knew the plaintiff for the last more than 45 years. This witness has stated that the plaintiff is the owner of the suit property. PW6 has further stated that the property in question was purchased by the plaintiff from Sh. Bassi Devi and Sh. Som Nath in April, 1988.

15. The defendant no. 2 has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/1 on record, he has reiterated Suit No. 258/14 (Old Suit No. 179/06) Page No. 12/36 and reaffirmed the stand as taken by the defendants in their written statements. This witness has filed on record the site plan Ex. DW1/A, the mutation letter dated 03.11.1989 as Ex. DW1/B, Agreement to Sell and Purchase dated 18.08.2006 as Ex. DW1/C1, General Power of Attorney as Ex. DW1/C2, copy of the Special Power of Attorney as Ex. DW1/C3, Will as Ex. DW1/C4, receipt for the amount of Rs. 4.90 Lacs as Ex. DW1/C5, original receipt no. 23 for a sum of Rs. 46/­ dated 07.12.1959 against ground rent as Ex. DW1/F1, original receipt no. 64 for a sum of Rs. 46/­ dated 22.11.1960 against ground rent as Ex. DW1/F2, original receipt no. 32 dated 03.01.1964 against ground rent as Ex. DW1/F3, original notice dated 22.09.1966 for deposit of installments as Ex. DW1/F4, original information/ data required for Action Committee, Anti Delhi Premises Bill Conference as Ex. DW1/F5, original of Delhi Development provisional Authority as Ex. DW1/F6, original Agreement dated 03.01.1964 in between President of India and Sh. Kanshi Ram as Ex. DW1/F7, original letter dated 29.04.1967 from Sh. B.S. Kalra, Managing Officer, Regional Settlement Commissioner, New Delhi as Ex. DW1/F8, notice dated 19.09.2006 as Ex. DW1/G, copy of the legal notice dated 19.02.2007 as Ex. DW1/H, copy of the complaint dated 30.04.2007 as Ex. DW1/I, original acknowledgement dated 29.05.2007 as Ex. DW1/J and the document dated 07.04.1988 as Ex. DW1/K.

16. The defendant no. 2 has further examined Sh. Parveen Bajaj, AG­II, from the office of BSES, Division Janakpuri, New Delhi as DW3 and this witness produced the summoned record pertaining to K. No. 2610 H 7370038. This witness has stated that the said K. No. is in the name of Sh. Kanshi Ram at the address of 10/64, Subhash Nagar, New Suit No. 258/14 (Old Suit No. 179/06) Page No. 13/36 Delhi.

17. The defendant no. 2 has further examined Smt. Ajit Kaur, from the office of Food and Supply Department, New Delhi as DW4 and this witness produced in the Court the summoned record pertaining to the ration card of Sh. B.S. Sahoo S/o late Sh. Santu Sah, at the address 10/64, Subhash Nagar, New Delhi bearing ration card no. 13140768. This witness has further brought the record pertaining to Phool Kumar Sahu S/o late Dhyani Sahu at address 10/64, Subhash Nagar, New Delhi bearing ration card no. 13140741. The said records have been marked as Mark A and B by this witness.

18. The defendant no. 2 has further examined Sh. Anand Sharma, AZI West Zone, MCD, Tilak Nagar, Delhi as DW5. This witness produced in the Court the summoned record containing the mutation order dated 03.11.1989 with respect to the property no. 10/64, Subhash Nagar, New Delhi and the photocopy of the same has been exhibited as Ex. DW5/1 by the said witness.

19. The defendant no. 2 has further examined Sh. Ashish Pashricha, UDC, from the office of L&DO, Delhi as DW6. This witness has stated that the letter dated 19.09.2006 has been compared with the original in his file and the same has been exhibited as Ex. DW6/1. The application for conversion has been exhibited as Ex. DW6/2 and Ex. DW6/3 by this witness.

20. In the next examination­in­chief done on 23.07.2012, this witness has stated that the letter dated 28.12.2006 was issued by his department. The said letter dated 28.12.2006 has been exhibited as Ex. DW6/4. The letter dated 28.12.2006 for refund of conversion amount has Suit No. 258/14 (Old Suit No. 179/06) Page No. 14/36 been exhibited as Ex. DW6/5, the letter dated 28.12.2006 issued to Sh. Rajiv Miglani for rejection of conversion has been exhibited as Ex. DW6/6, the legal notice dated 19.02.2007 received by his department as Ex. DW6/7, the reminder dated 30.04.2007 received by his department as Ex. DW6/8, the letter/ order dated 24.08.2007 as Ex. DW6/9, the noting 12/N and 13/N dated 23.10.2006 in his record as Ex. DW6/10. This witness has further stated that the affidavit of late Sh. Somnath dated 24.11.2006 claimed to be submitted on 24.11.2006 was not in the record produced by the said witness. The photocopy of the said affidavit was marked as Mark X and the receipt with stamp was marked as Mark Y by this witness.

21. Lastly, the defendant no. 2 has examined Sh. S.N. Dobhal, Record Keeper, from the office of Chief Election Officer, Kashmere Gate, Delhi as DW7. This witness produced in the Court the summoned record i.e. the electoral roll lastly revised on 2012 published on 01.01.2013 pertaining to the Block 10, H. No. 64, running into two pages. This witness compared the said electoral roll with the main certified copy. The said electoral roll was exhibited as Ex. DW7/1 by this witness.

22. Perusal of the record of the case reveals that the defendant no. 1 was proceeded ex­parte vide orders dated 12.10.2007 passed by the Ld. Predecessor of this Court. No evidence has been led by the defendant no. 1 at all.

23. The detailed testimonies of these witnesses shall be discussed in the later part of this judgment.

24. I have carefully gone through the entire material available on Suit No. 258/14 (Old Suit No. 179/06) Page No. 15/36 record and heard the rival submissions of Ld. counsels for both the parties. Ld. Counsel for the defendant no. 2 has also filed on record the written final arguments on behalf of the defendant no. 2. I have also given my thoughtful consideration to the written final arguments filed on record by the defendant no. 2. No written arguments have been filed on record on behalf of the plaintiff and the defendant no. 1 as well.

25. My issuewise finding on the abovesaid issues is as under:

Issues No. 1 to 5 :

26. All these issues are taken up together as the same are connected interse and overlap each other. Issues no. 1 and 2 pertain to the objections/ pleas of the defendant no. 1 as contained in his written statement and as such, the onus to prove issues no. 1 and 2 has been placed upon the defendant no. 1. Issue no. 3 pertains to the plea of the plaintiff as contained in the plaint and issues no. 4 and 5 pertain to the prayer clause of the present suit. As such, the onus to prove issues no. 3 to 5 has been placed upon the plaintiff.

27. The factual controversy, which is within a narrow compass in the present suit, has already been narrated hereinabove. During the course of the final arguments, Ld. Counsel for the plaintiff has argued that besides other documents, Will dated 07.04.1988 executed by Smt. Bassi Devi Ex. PW5/1 on record is also in favour of the plaintiff. It has been further argued that the Will executed by Sh. Somnath in the form of Ex. PW5/2 is also there on record. It has been further argued that no Suit No. 258/14 (Old Suit No. 179/06) Page No. 16/36 evidence has been led by the defendant no. 1 It has been further argued that the payment has been done by the plaintiff by way of the cheque bearing no. 945326 and the banker's cheque bearing no. 623679/521/88 on 03.01.1988 and 22.03.1988 for the amount of Rs. 20,000/­ and Rs. 28,000/­ respectively. It has been further argued that the property in question was purchased by the plaintiff for a total amount of Rs. 48,000/­ on 07.04.1988. It has been further argued that on the other hand, the payment allegedly by the defendant no. 2 to the defendant no. 1 for the amount of Rs. 4,90,000/­ was in cash and the said payment has not been proved at all by the defendant no. 2. It has been further argued that the defendants no. 1 and 2 have acted in collusion with each other. It has been further argued that the written statement of the defendants no. 1 and 2 is verbatim on the same lines. It has been further argued that the attesting witness to the documents filed on record by the plaintiff has been examined by the plaintiff as PW4, whereas, the defendant no. 2 has failed to examine any witness to the alleged documents dated 18.08.2006, such as Ex. DW1/C1, DW1/C2, DW1/C3 etc. It has been further argued that of course, the General Power of Attorney is in favour of the husband of the plaintiff, but, the rest of the documents i.e. Agreement to Sell dated 07.04.1988 Ex. PW4/A on record, both the Wills dated 07.04.1988 Ex. PW5/1 and Ex. PW5/2 on record, the receipt dated 07.04.1988 Ex. PW4/C on record are in favour of the plaintiff. It has been further argued that the affidavit Ex. PW4/B is of January 1988 as the payment of Rs. 20,000/­ was paid by the plaintiff by way of cheque bearing no. 954326 dated 03.01.1988 by the plaintiff. It has been further argued that the possession of the suit property has always been with the plaintiff. It has Suit No. 258/14 (Old Suit No. 179/06) Page No. 17/36 been further argued that no quantum of loan has been mentioned at all by the defendants in their written statements. It has been further argued that there is nothing in the written statement to the effect that as to how much loan was taken and as to how much loan was repaid. It has been further argued that the plaintiff has been able to prove her case.

28. Whereas, on the other hand, in the written final arguments filed on record by the defendant no. 2, it has been argued that there is no explanation as to why the plaintiff kept mum for a long period of 18 years till the year 2006 when the documents dated 18.08.2006 were executed by the defendant no. 1 in favour of the defendant no. 2 despite the fact that the plaintiff was having the documents dated 07.04.1988 in her favour. It has been further argued that the Agreement to Sell dated 18.08.2006, in fact, is a Sale Deed because there is no stipulation in the said Agreement to Sell with respect to any further covenant, which has to be further acted upon. It has been further argued that the witnesses in the documents dated 07.04.1988 at the front page and back page thereof are different. It has been further argued that in the light of the ratio of the authority cited as 2012(1) SCC 656 titled as Suraj Lamp & Industries P. Ltd. Vs. State of Haryana, the documents dated 07.04.1988 in favour of the plaintiff cannot confer any right, title or interest in respect of the suit property upon the plaintiff. It has been further argued that the plaintiff has utterly failed to prove that Sh. Girish Gujral, who happens to be the son of the plaintiff, was ever inducted as a tenant in the property in question. It has been further argued that in the affidavit dated 07.04.1988, which is of the month of January, 1988 Sh. Girish Gujral has Suit No. 258/14 (Old Suit No. 179/06) Page No. 18/36 been stated to be a Caretaker. It has been further argued that otherwise also, the defendant no. 2 is a bonafide purchaser for value and he purchased the suit property for consideration and in good faith and as such, he is protected by Section 19(b) of the Specific Relief Act. It has been further argued that the plaintiff has utterly failed to prove her case.

29. The plaintiff has filed on record the Agreement to Sell dated 07.04.1988 Ex. PW4/A on record, GPA in favour of her husband Sh. Iqbal Singh in the form of Ex. PW2/A on record, Will executed by Smt. Bassi Devi dated 07.04.1988 in the form of Ex. PW5/1 on record, the Will dated 07.04.1988 executed by Sh. Somnath, who happens to the defendant no. 1 in the present suit in the form of Ex. PW5/2 on record, the affidavit executed by both Smt. Bassi Devi and Sh. Somnath of January 1988 in the form of Ex. PW4/B on record and the receipt for the amount of Rs. 48,000/­ Ex. PW4/C on record.

30. On the other hand, the defendant no. 2 has relied upon the documents i.e. Agreement to Sell for the amount of Rs. 4,90,000/­ in the form of Ex. PW3/A on record. The said Agreement to Sell dated 18.08.2006 has been again exhibited as Ex. DW1/C1 by the defendant no. 2 in his evidence by way of affidavit. The defendant no. 2 has further relied upon the General Power of Attorney dated 18.08.2006 Ex. DW1/C2 and Special Power of Attorney dated 18.08.2006 Ex. DW1/C3 on record and the other documents, which have been exhibited by the defendant no. 2 in his evidence by way of affidavit.

31. The plaintiff has taken the stand that the defendant no. 2 has acted in collusion with the defendant no. 1. It has been further argued that the defendant no. 1 after having executed the documents on Suit No. 258/14 (Old Suit No. 179/06) Page No. 19/36 07.04.1988 was not having any right, title or interest in the suit property and as such, he was not within his powers to get mutation of the suit property from Land & Development Office in his favour on 08.08.2006 and subsequently, to execute the documents dated 18.08.2006 in favour of the defendant no. 2.

32. Whereas, on the other hand, Ld. Counsel for the defendant no. 2 has argued that the documents dated 07.04.1988 are forged and fabricated and the said documents were got executed by the plaintiff from late Smt. Bassi Devi and Sh. Somnath by playing fraud upon them. It has been further argued that late Smt. Bassi Devi (mother of the defendant no. 1 and the wife of late Sh. Kanshi Ram, in whose favour the suit property was allotted initially) was working as a maid servant in the house of the plaintiff and taking advantage of the financial constraints of late Smt. Bassi Devi, the said documents were got executed by playing fraud. It has been further argued that late Smt. Bassi Devi had taken some loan. It has been further argued that the loan was repaid, but, even after the repayment of the said loan, the said documents were manipulated by the plaintiff and her husband Sh. Iqbal Singh.

33. As such, the vital question to be considered by this Court is as to whether the plaintiff has been able to prove her case by way of cogent and reliable evidence. This Court has to further consider and see as to whether the defendants have been able to prove that the loan was granted by the plaintiff to late Smt. Bassi Devi and even after repayment of the said loan by Smt. Bassi Devi and Sh. Somnath i.e. the defendant no. 1 herein, the said documents were got manufactured by playing fraud. This Court has to further see and consider as to whether the defendant no.

Suit No. 258/14 (Old Suit No. 179/06) Page No. 20/36

2 has been able to prove that the defendant no. 2 was a bonafide purchaser for value without any notice of the documents dated 07.04.1988.

34. Now, coming to the evidence, the plaintiff i.e. PW4, in the cross­examination, has stated that she knew Smt. Bassi Devi as she was her neighbour. PW4 has further stated that she did not know whether Smt. Bassi Devi was working as a maid servant in the area. PW4 has admitted it to be correct that the transaction took place with Smt. Bassi Devi directly and there was no broker involved. PW4 has stated that she does not know as to whether any other person was residing in the suit property as on December 1987. PW4 has further stated that the first time, the written transaction took place in January 1988. PW4 has further stated that in December 1987, Sh. Girish took the single room existing in the suit property at that time on rent and thereafter, the talks of negotiations for sale commenced. PW4 has further stated that in January 1988, when the talks concluded, the tenancy of his son was over. PW4 has further stated that till date, the possession of the suit property is with her. PW4 has further stated that in fact, the kaccha room is also in his possession. PW4 has further stated that one Subzi wala in the Kaccha portion of the suit property was inducted by her. PW4 has further stated that the pucca portion still remains with her. PW4 has further stated that she can identify the signatures of Sh. Som Nath. By way of volunteer, PW4 has stated that her husband was dealing with the L&DO. PW4 has further stated that her husband was dealing with the suit property based on the General Power of Attorney in her favour and the present suit has been filed in her name because she is the owner of the suit property. PW4 Suit No. 258/14 (Old Suit No. 179/06) Page No. 21/36 has further stated that she does not know the exact name of Subzi wala put by her in possession of Kaccha room. PW4 has again stated that perhaps his name was Sh. Deepak, who is in possession for the last about 2½ years. PW4 has admitted it to be correct that neither she herself, nor any of her family members has any ration card, voter identify card etc. at the address of the suit property. PW4 has admitted it to be correct that she was present when Smt. Bassi Devi and Sh. Somnath executed Agreement to Sell dated 07.04.1988 and she knows both the witnesses, who appended their signatures as witnesses. PW4 has further stated that one of the witness of the Agreement to Sell is Sh. Darshan Lal and she cannot recollect the name of the other witness. PW4 has further stated that her Advocate Sh. Har Kishan Chaudhary, had drafted the affidavit as per the instructions of both the parties in January 1988. PW4 has identified the thumb impressions of Sh. Somnath and the thumb impressions of Smt. Bassi Devi on the receipt dated 07.04.1988. PW4 has further stated that all the documents dated 07.04.1988 were executed at Kashmere Gate. PW4 has further stated that Smt. Bassi Devi, Sh. Somnath, she herself, her husband Sh. Iqbal Singh and her Advocate Sh. Harkrishan Chaudhary, Sh. Shiv Chander Lal, Sh. Darshal Lal and one more person, whose name she does not remember, were present at that time. PW4 has admitted it to be correct that she had never informed L&DO about the transaction dated 07.04.1988 till 14.08.2006 and there was no special reason for not informing the L&DO for all the abovesaid period. PW4 has further stated that there was no rent receipt of the tenancy of her son namely Sh. Girish. PW4 has admitted it to be correct that Sh. Girish has taken the possession of the suit property at the time of Suit No. 258/14 (Old Suit No. 179/06) Page No. 22/36 his induction as a tenant. PW4 has stated that the tenancy was of Rs. 150/­ per month. PW4 has further stated that their goods are lying in the Pucca portion of the suit property since 07.04.1988. PW4 has admitted it to be correct that the pucca portion of the suit property always remain under her exclusive lock and key since the transaction dated 07.04.1988. PW4 has admitted it to be correct that the electricity connection in the suit property is still in the name of Sh. Kanshi Ram.

35. Sh. Shiv Chander Talwar, who is a witness to the documents dated 07.04.1988 and who has been examined by the plaintiff as PW5, has stated, in his cross­examination, that the Will Ex. PW5/1 executed by Smt. Bassi Devi, the Will Ex PW5/2 executed by Sh. Som Nath, the Receipt dated 07.04.1988 executed by Smt. Bassi Devi and Sh. Som Nath Ex. PW5/3 on record bears his signatures, the signatures of Sh. Somnath, the thumb impressions of Smt. Bassi Devi and the thumb impressions of Sh. Somnath. PW5 has further stated that on 07.04.1988 at about 9:45 A.M. Smt. Bassi Devi also told him about the sale transaction. PW5 has further stated that he was not called by Smt. Bassi Devi, but, he was called by Sh Iqbal Singh. PW5 has further stated that he has the knowledge about the monetary transaction that had taken place in respect of the said deal. PW5 has further stated that at the time of signing of the documents, he was told by Smt. Bassi Devi that she had sold her property. PW5 has further stated that he has seen the agreement to sell Ex. PW4/A on 07.04.1988. PW5 has admitted it to be correct that he has not seen the said document Ex. PW4/A after 07.04.1988 till date. PW5 has further stated that the persons present in the office of Sub­Registrar on 07.04.1988 comprised of himself, Smt. Urmil Gujral, Sh. Iqbal Singh, Suit No. 258/14 (Old Suit No. 179/06) Page No. 23/36 Sh. Som Nath, Smt. Bassi Devi, one Sh. Fakir Chand and Sh. Darshan Lal, his brother.

36. DW1 i.e. the defendant no. 2, in the cross­examination, has stated that the factum of the amount of Rs. 4,90,000/­ has not been mentioned by him in the written statement. DW1 has further stated that the prevailing rates in the market were found by him from the property dealer in the area and the name of the said property dealer is Sh. Veeru Associates. DW1 has admitted it to be correct that his factory is close to the shop of Veeru Associates. DW1 has further stated that the property in question was not purchased through Veeru Associates. DW1 has admitted it to be correct that he had gone to Veeru Associates to gather information regarding the property available in the area for sale. DW1 has further stated that he visited the suit property in third week of July 2008 for the purpose of seeing the property. DW1 has further stated that the negotiation had started in second week of July 2008. DW1 has further stated that he visited the suit property even during the time of negotiations. DW1 has further stated that he visited the suit property only once. DW1 has further stated that he met one Mr. Deepak, who was a tenant. DW1 has further stated that he went to the suit property before the deal was finalized. DW1 has further stated that he had made the entire payment at one time in the office of Sub­Registrar, Janakpuri at the time of execution of the Agreement to Sell and all other documents. DW1 has further stated that the payment was done outside the office of the Deed Writer. DW1 has further stated that the office of the Deed Writer is in the premises of the Sub­Registrar, Janakpuri. DW1 has further stated that the payment was counted by the defendant no. 1 while Suit No. 258/14 (Old Suit No. 179/06) Page No. 24/36 sitting in the gallery. DW1 has further stated that the original receipt of Rs. 4,90,000/­ had not been filed on record and the photocopy of the same had been filed on record as Mark DX. DW1 has further stated that the said receipt does not bear the date. DW1 has further stated that he withdrew the amount of Rs. 4,90,000/­ from the Oriental Bank of Commerce, Pushpanjali Branch. DW1 has further stated that the said amount of Rs. 4,90,000/­ was paid on 18.08.2006 in cash. DW1 has identified the signatures of the defendant no. 1 on Ex. PW4/A i.e. Agreement to Sell dated 07.04.1988. DW1 has further stated that he is not sure as to whether the document Ex. PW5/2 i.e. the Will executed by Sh. Somnath dated 07.04.1988 in favour of the plaintiff, the document Ex. PW4/B i.e. the affidavit of January 1988 executed by Smt. Bassi Devi and Sh. Somnath and the document Ex. PW4/C i.e. the receipt dated 07.04.1988 executed by Sh. Somnath and Smt. Bassi Devi in favour of the plaintiff bear the signatures of the defendant Sh. Somnath. DW1 has admitted it to be correct that no sale deed has been executed till date in his favour. DW1 has admitted it to be correct that 18.08.2006 is in ink and not type written. DW1 has admitted it to be correct that the money was not paid before the Sub­Registrar. DW1 has admitted it to be correct that in the GPA also, the date 18.08.2006 is written in ink. DW1 has admitted it to be correct that no date is mentioned on the receipt. DW1 has admitted it to be correct that on the GPA on the last page photographs of the second party are not there. DW1 has admitted it to be correct that the Special Power of Attorney also does not bear the date. DW1 has stated that Sh. Deepak Kumar is still residing in the property in question. DW1 has further stated that after coming to know of this controversy, he Suit No. 258/14 (Old Suit No. 179/06) Page No. 25/36 did not serve any notice in writing on Somnath or lodged any complaint against Som Nath as to why he has re­sold the property. DW1 has further stated that he does not know as to why Sh. Somnath and his family member executed the documents dated 07.04.1988 in favour of the plaintiff. DW1 has further stated that only Sh. Somnath can tell about the fact as to why he executed these documents in favour of the plaintiff. DW1 has denied the suggestion that he is not in possession of the suit property. By way of volunteer, DW1 has stated that the possession is still with the tenants. DW1 has further stated that the tenants were already in possession when he purchased the property and at the time of negotiation, tenants sought sometime to vacate the property from him. DW1 has further stated that he has not given any notice to the tenants to vacate the property. DW1 has admitted it to be correct that neither Sh. Som Nath nor any of his family members reside in the suit property, but, he cannot say after alleged sale in 1988.

37. If the written statement filed on record by the defendant no. 1 is carefully gone through, it becomes apparently clear that the receipt of the amount has not been denied by the defendant no.1. Rather, the defendant no. 1 has taken the stand that late Smt. Bassi Devi, who was his mother, had taken a loan from the plaintiff on account of the financial constraints. The defendant no. 1, in his written statement talks about the loan to Smt Bassi Devi and the defendant no. 1 also states that the entire loan amount was repaid. To the same effect is the written statement of the defendant no. 2. But, it has to be seen that neither the quantum of the loan amount, nor the manner and mode in which the loan was repaid has been mentioned at all by the defendants in their entire written statement.

Suit No. 258/14 (Old Suit No. 179/06) Page No. 26/36

From the admissions of the defendant no. 1 as contained in his written statement, one thing is apparently clear and that is that on all the documents dated 07.04.1988 either in favour of the plaintiff or in favour of the husband of the plaintiff, the defendant no. 1 has admitted the thumb impressions of her mother Smt. Bassi Devi and her own signatures and thumb impressions as well. The receipt of the amount also stand admitted by the defendant no. 1. Needless to mention that the amount of Rs. 20,000/­ was given on 03.01.1988 by way of cheque bearing no. 954326. The amount of Rs. 28,000/­ was also given on 22.03.1988 by way of banker's cheque bearing no. 623679/521/88. As such, to my mind, there is ample force in the submissions of the Ld. Counsel for the plaintiff when it is argued that the amount, which was paid by the plaintiff was by way of cheques and whereas, the amount, which has been allegedly paid by the defendant no. 2 to the defendant no. 1 is in cash.

38. The onus to prove issues no. 1 and 2 was upon the defendants. Needless to mention that the defendant no. 1 has failed to lead any evidence and he has also failed to address any arguments. To my mind, the defendant no. 1 has utterly failed to prove on record that the documents dated 07.04.1988 are forged and fabricated and that the suit of the plaintiff is without any cause of action.

39. Furthermore, it has to be seen that the signatures of Sh. Somnath have been admitted by none other, but, by the defendant no. 2 himself as is apparent from the abovesaid cross­examination of DW1. If the abovesaid cross­examination of the defendant no. 2 is carefully gone through, to my mind, it also becomes apparently clear that the defendant Suit No. 258/14 (Old Suit No. 179/06) Page No. 27/36 no. 2 has failed to prove that the amount of Rs. 4,90,000/­ was given by him in cash to the defendant no. 1. To my mind, it has been rightly argued by the Ld. Counsel for the plaintiff that no witness to the documents dated 18.08.2006 has been examined at all by the defendant no. 2.

40. So far as the testimony of the plaintiff i.e. PW4 is concerned, I am of the opinion that on material aspects, the testimony of the plaintiff is not shaken even in her cross­examination. PW5, who is an attesting witness to the documents dated 07.04.1988, is also not shaken during his entire cross­examination. I am of the opinion that PW5 has corroborated the stand of PW4 in all its material particulars. Whereas, on the other hand, defendant no. 2 has not examined any attesting witness to the documents dated 18.08.2006. As such, I am of the opinion that the case of the plaintiff stand at a better footing as compared to the case of the defendant no. 2.

41. It is true that the General Power of Attorney dated 07.04.1988 Ex. PW2/A on record is in favour of Sh. Iqbal Singh, who is the husband of the plaintiff. It is true that the rest of the documents dated 07.04.1988 i.e. Agreement to Sell dated 07.04.1988 Ex. PW4/A on record, the Will of Smt. Bassi Devi Ex. PW5/1 on record, the Will of Sh Somnath Ex. PW5/2 and the receipt Ex. PW4/C on record are in favour of the plaintiff. Admittedly, Smt. Bassi Devi has expired and the Will has come into operation after the death of Smt. Bassi Devi.

42. From the documents placed on record by the plaintiff, I am of the opinion that it has been sufficiently proved on record by the plaintiff that the documents dated 07.04.1988 were executed by Smt. Suit No. 258/14 (Old Suit No. 179/06) Page No. 28/36 Bassi Devi and by Sh. Somnath against the sale consideration. The receipt in favour of Smt. Bassi Devi Ex. PW4/C on record is sufficient in itself to prove on record that the said documents were executed against the sale consideration. To the same effect is the Agreement to Sell dated 07.04.1988 Ex. PW4/A on record, wherein, the factum of the receipt of the sale consideration has been mentioned.

43. Ld. Counsel for the defendant no. 2 has argued that after the decision of the Hon'ble Supreme Court in the authority cited as 2012(1) SCC 656 titled as Suraj Lamp & Industries P. Ltd. Vs. State of Haryana, these documents are of no help to the case of the plaintiff. It has to be seen that in favour of the defendant no. 2 as well, there is merely an Agreement to Sell. The defendant no. 2 in the cross­ examination has categorically admitted that the sale deed in his favour till date has not been executed by the defendant no. 1. As such, I am of the opinion that for the better title, the documents of both the parties can be weighed against each other, in the light of the authority cited as 188(2012) DLT 538 titled as Ramesh Chand Vs. Suresh Chand and Anr. wherein it has been held as under :

"3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court however reiterated that rights which are created pursuant to Section 53 A of the Transfer of the Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney Suit No. 258/14 (Old Suit No. 179/06) Page No. 29/36 given for consideration coupled with interest as per section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will(para 14). therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of the Property Act, 1882, Section 202 of the Contract Act, 1872/ There also takes place devolution of interest after the death of the testator in terms of a Will."
"8. Great stress was laid on behalf of the appellant to the fact that the respondent No. 1/ plaintiff had failed to prove the Will Ex. PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kahibai & Anr. v. Parwatibai & Ors., 1995 IV AD S.C. (C) 41 to argued that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting Suit No. 258/14 (Old Suit No. 179/06) Page No. 30/36 witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to be facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/ plaintiff as PW­1. Once there is no cross­examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No. 1/ plaintiff under a Will will not be a judgment in rem but only a judgment interse the parties.
Suit No. 258/14 (Old Suit No. 179/06) Page No. 31/36
Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant no.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent no.1/plaintiff as PW­2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant no.1 as DW­2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
"12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.(supra) taken with the fact that Sh. Kundan Lal has already died, the respondent no.1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.05.1996. A right to possession Suit No. 258/14 (Old Suit No. 179/06) Page No. 32/36 of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 miserably failed to prove there there was any partition as alleged of the year 197 whereby the suit property allegedly fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal."

44. In the light of the ratio of the abovestated authority, I am of the opinion that the plaintiff has been able to prove that after execution of the documents dated 07.04.1988, the defendant no. 1 was not having any power or authority to execute the documents dated 18.08.2006 in favour of the defendant no. 2.

Suit No. 258/14 (Old Suit No. 179/06) Page No. 33/36

45. So far as the possession of the suit property is concerned, it has to be seen that in the cross­examination, the plaintiff has stuck to the stand that one Subzi wala Sh. Deepak was inducted by her as a tenant. It is true that no proof of tenancy of Sh. Deepak is there on record. But, even the defendant no. 2 has not denied, in his cross­examination, that Sh. Deepak is not in possession of the property in question. It is also true that there is no proof on record to show that Sh. Girish Gujral was inducted as a tenant in the suit property in December 1987, but, it has to be seen that the defendant no. 2 has utterly failed to prove his possession over the property in question. The defendant no. 2, in his cross­ examination, by way of volunteer, has stated that the possession is with the tenants and the tenants were already in possession at the time, when he allegedly purchased the property from the defendant no.1. The defendant no. 1 in the written statement has categorically stated that the possession of the property in question was handed over by him to the defendant no. 2 on 18.08.2006 at the time of execution of the documents dated 18.08.2006, which was till date with the erstwhile tenants, but, the cross­examination of the defendant no. 2 is diametrically opposite to the abovesaid stand of the defendant no. 1. The documents dated 07.04.1988 in favour of the plaintiff categorically state that the possession of the property in question was already with Sh. Girish Gujral. As such, I am of the opinion that so far as the possession of the suit property is concerned, the plaintiff has been able to prove that the suit property is under the possession of the plaintiff.

46. If the cross­examination of the defendant no. 2 is carefully gone through, it becomes apparently clear that at one point of time, in the Suit No. 258/14 (Old Suit No. 179/06) Page No. 34/36 cross­examination, the defendant no. 2 has stated that he visited the property in question in the first week of July 2008 and negotiations took place in the second week of July 2008. The documents in favour of the defendant no. 2 are dated 18.08.2006. As such, the abovesaid cross­ examination of the defendant no. 2 is diametrically opposite to his stand as contained in his written statement.

47. The settled law is that in civil cases, the litmus test, which is applied, is the test of preponderance of probabilities. To my mind, if weighed on the scale of preponderance of probabilities, the testimony of PWs appears to me to be more reliable, trustworthy and confidence inspiring as compared to the testimony of DWs.

48. In the light of the abovesaid discussion, I am of the opinion that the defendants have utterly failed to prove issues no. 1 and 2 in their favour and as such, issues no. 1 and 2 are decided against the defendants and in favour of the plaintiff. Issue no. 3 is also decided in favour of the plaintiff and against the defendants. Issues no. 4 and 5 are also decided in favour of the plaintiff and against the defendants.

Relief :

49. In the light of my findings on the foregoing issues, the suit of the plaintiff is hereby decreed and a decree of Declaration is hereby passed in favour of the plaintiff and against the defendants to the effect that the Agreement to Sell dated 18.08.2006 executed by the defendant no. 1 in favour of the defendant no. 2 is null and void. A decree of Permanent Injunction is also passed in favour of the plaintiff and against the defendants restraining the defendants and their agents etc. from Suit No. 258/14 (Old Suit No. 179/06) Page No. 35/36 entering into any transaction of any nature whatsoever in respect of the property bearing no. 10/64, Tihar­I, Subhash Nagar, New Delhi on the basis of the substitution letter dated 08.08.2006 or on the basis of the Agreement to Sell dated 18.08.2006. Costs of the suit are also awarded in favour of the plaintiff.

Decree sheet be prepared accordingly by the Reader.

File be consigned to Record Room after due compliance. 

Announced in the open court                           (RAJ KUMAR)
on this 02nd day of March 2016.                     ADJ­09 (Central)
                                             Tis Hazari Courts, Delhi. 




Suit No. 258/14 (Old Suit No. 179/06)                         Page No. 36/36