Delhi District Court
Mirazuddin & Anr. vs . Hardeep Singh Thapar & Anr. on 31 October, 2015
Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
In the Court of Additional District Judge02, South District, Room No. 602,
Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
CS No. 6/14
Unique No. 02403C0145942009
1. Mirazuddin, s/o Sh. Ghiyasuddin
R/o 5109, Bara Tooti, Sadar Bazar, Delhi.
2. Riazuddin, s/o Sh. Ghiyasuddin
R/o K17, Hauz Khas Enclave,
New Delhi110016. ...Plaintiffs
Versus
1. Hardeep Singh Thapar, s/o Dr. K.S. Thapar
R/o A78, Malviya Nagar, New Delhi110017.
2. SubRegistrarV
Mehrauli, New Delhi, Delhi. ...Defendants
Date of filing : 29.05.2009 (Suit no. 835/09)
Date of institution
: 27.11.2014 (Suit no. 06/14)
(previous Suit no. 835/29.05.2009)
Decision reserved on: 03.10.2015
Date of decision : 31.10.2015
JUDGMENT
1. (Brief introduction to case and issues) - Plaintiffs namely Mirazuddin and Riazuddin filed suit u/s 31 of the Specific Relief Act, 1963 against defendant no. 1 Sh. Hardeep Singh Thapar and defendant no. 2 CS no. 6/2014 Page No. 1 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
SubRegistrarV, Mehrauli to cancel Sale Deed dated 02.05.2005 (its certified copy is now Ex. PW1/1), got registered as document no. 6558, Book No. I, volume 4948 pages 5359 (in favour of defendant no. 1) in respect of property no. K17, Hauz Khas Enclave, New Delhi (in brief the property or subject property) as void abintio since sale deed (showing consideration amount of Rs. 20 lakhs) is forged and fabricated, purported to be signed by one Sh. Narinder as vendor appearing before Sub Registrar, Delhi, as Mirazuddin as attorney for Sh. Krishan Kumar Chopra,whereas the sale deed does not bear either photograph or signature of plaintiff no. 1 Mirazuddin nor driving license number of Mirazuddin but of Mr. Narinder Kumar. The plaintiff no.1 never executed or got executed sale deed in favour of defendant no.1.
Whereas, defendant no. 1 opposed the suit and he claims that he is bonafide purchaser of the said property by registered sale deed, he transacted with plaintiff no. 2 Riazuddin and paid him consideration amount. The said Riazuddin along with others projected a person by impersonation for Mirazuddin and they cheated the defendant no.1.
On the basis of pleadings and matrix of case of parties and documents, the following issues were framed on 07.05.2011:
1. Whether the plaintiff is entitled to the decree of cancellation of sale deed dated 02.05.2005 if so its effect? OPP
2. Whether the sale deed dated 02.05.2005 is forged and fabricated CS no. 6/2014 Page No. 2 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
document if so its effect? OPP
3. Relief.
It needs to state the case of the parties as set up by them. 2.1 (Plaintiffs' case) - The plaintiff no. 1, being owner of property no. K17, Hauz Khas Enclave, New Delhi, executed sale deed dated 14.11.2005 (now Ex. PW1/2, showing consideration of Rs.2.50 lacs) in favour of plaintiff no. 2 Riazuddin in respect of property K17, Hauz Khas Enclave, New Delhi. Plaintiff no. 1/ Mirazuddin has not executed any other sale deed or document in respect of said property in favour of any other person or entity. Thus, plaintiff no. 2 is the registered owner of the said property. The plaintiffs are seeking cancellation of forged sale deed dated 02.05.2005 (its certified copy is now Ex. PW1/1), which was forged by defendant no. 1 Sh. Hardeep Singh Thapar and it came to their knowledge subsequently on 29.02.2008.
2.2 On 29.02.2008, the plaintiff no. 2 was shocked to see a notice dated 21.02.2008 u/s 13 (4) of SARFASEI ACT, 2002 (its certified copy is now Ex. PW1/3) affixed at the subject property of the plaintiff. The defendant no. 1 was alleged to have mortgaged the property at State Bank of Hyderabad, Kundan House, Nehru Place, New Delhi. On 01.03.2008, the plaintiff no. 1 went to the Bank and filed his objections (its certified copy is now Ex. PW1/4), where it was discovered to him that defendant no. 1 forged the sale deed in his favour in respect of the said property, wherein Mirazuddin/plaintiff no. 1 was shown as a seller but the CS no. 6/2014 Page No. 3 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
photograph appearing on the sale deed was not of plaintiff no. 1 but of one of the employee of defendant no. 1, his driving license number is also shown as identity of the seller. In fact, plaintiff no. 1 did not know the defendant no. 1 nor he sold his property to defendant no. 1. The photograph appearing on the sale deed was subsequently discovered of Sh. Narinder, the sale deed does not bear signature of plaintiff no. 1. Not only the Bank was apprised of all these aspects by them but also a complaint dated 05.03.2008 (its photocopy is now Ex. PW1/5) was lodged with the Deputy Commissioner of Police, Economic Offences Wing, Qutub Institutional Area, New Delhi. The plaintiff no. 1 visited the office of Crime branch, however, no initiation was taken by the police, consequently, a criminal complaint u/s 190 of Cr.PC (its certified copy is now Ex. PW1/6) was filed by the plaintiffs against defendant no. 1, Mr. Narinder, Mr. Manish Thapar and Mr. Aspak and the court of Metropolitan Magistrate dealt application u/s 156(3) Cr.PC and directed for registration of FIR by order dated 11.08.2008 in complaint case no. 871/1 (its certified copy is now Ex. PW1/7 and Ex. PW1/8); FIR no. 476/11, PS Hauz Khas was registered ( its certified copy is now Ex. PW1/9 also Ex PW2/5) against defendant no. 1 & others. Moreover, the plaintiffs assailed the said notice under section 13(4) of SARFASEI Act, 2002 before the Debt Recovery TribunalI, New Delhi in appeal SA no. 20/2008 and by order dated 24.04.2008 the Presiding Officer of DRTI, New Delhi restrained the CS no. 6/2014 Page No. 4 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
bank from initiating any action on the strength of forged sale deed (the record of said appeal and restrain order are now Ex. PW1/10 and Ex. PW1/11 respectively). The plaintiff no. 1 is furnishing his identity by way of his election identity card (its copy is now Ex. PW1/12). 2.3 The general public is likely to be mislead by the registered document, therefore, it is necessary and expedient that such exfacie fraudulent/ forged document need immediate cancellation and be declared void so that general members of the public are not mislead by such unscrupulous elements and the defendant no. 1 may not be able to mislead any member of the public on this ground. The plaintiffs are coming to know since September 2008 about the efforts of defendant no. 1 to dupe the members of public on the strength of false and forged sale deed. Moreover, defendant no. 2 is required to make a note on the said sale deed pursuant to present suit and upon cancellation of the sale deed, while formally removing the sale deed from the record as cancelled. The plaintiffs have no other remedy but to come before this court; that is why the suit.
3.1 (Defendant no. 1's case) - Initially, the defendants were proceeded exparte, but later the defendant no.1 applied, the exparte order was set aside and he filed the written statement. The defendant no. 1 opposed the suit that there are concealment of material facts as well as misrepresentation, the plaintiffs are not entitled for the relief claimed. In CS no. 6/2014 Page No. 5 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
fact, the suit has been filed with ulterior motives and to get their illicit design as approval from the court. The sole object of plaintiffs from the beginning was to lure defendant no. 1 into their carefully calculated design to cheat and fraud the defendant; the plaintiffs in connivance and of common intention of each other misrepresented and cheated the defendant no. 1 for a total sum of Rs. 82 lakh as spent on the purchase of property, which is evident from the statement of account. 3.2 The plaintiffs have no locus standi to file the suit or have valid claim over the property. The said property K17, Hauz Khas Enclave belongs to DDA as validity of acquisition by DDA in 1998 has been upheld by the Apex Court in SLP filed by DDA against Sh. K.K. Chopra & Ors. It has not been disclosed in the plaint. Moreover, Sh. Riazuddin was a party in a suit under the title Smt. Jasbir Kaur vs. DDA, it has also not been disclosed, wherein it was held by the court of the then Additional District Judge, Delhi that he had no right, title or interest in the property. 3.3 Moreover, it is admitted case of plaintiffs that plaintiff no. 2 is owner of the property by registered sale deed dated 14.11.2005 (Ex. PW1/2) and he represented him as owner of the property and he entered into agreement to sell dated 16.06.2006 (now Ex. DW1/B, in respect of subject property for total consideration of Rs.2.5 crores) with defendant no. 1. The plaintiff no. 2 also mentioned in the recital of sale deed dated 14.11.2005 that the sale deed is executed by Sh. Krishan Kumar Chopra CS no. 6/2014 Page No. 6 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
through his general attorney Sh. Mirazuddin, whereas the original owner Sh. K.K. Chopra had already died on 06.11.1987, which is also apparent from the judgment of the then court of Additional District Judge, Delhi, while highlighting that GPA holder had no authority to execute sale deed on the eve of passing away of executant Shri KK Chopra. The very basis, on which plaintiff claims ownership, is defective and devoid of merits. The general power of attorney is of 29.09.1970 (now Ex. DW1/C by Shri KK Chopra in favour of Mirazuddin) and agreement to sell is also of 29.09.1970 (also Ex. DW1/C by Shri KK Chopra in favour of Riazuddin). Moreover, the agreement dated 16.06.2006 (EX. DW1/B) being relied by the plaintiffs also shows that total consideration amount Rs. 20 lakh in sale deed 02.05.2005 (Ex. PW1/1) was already paid, which find mentioned payment of Rs. 5 lakh by cheque dated 28.04.2005 advanced by defendant no. 1, prior to execution of sale deed and the same was encashed on 30.04.2005; another post dated cheque dated 06.05.2005 of Rs. 5 lakh was also encashed by the plaintiffs on 09.05.2005 (duly shown in the defendant's bank statement now Ex. DW1/A). By virtue of these payments, all controversies of sale deed 02.05.2005, being alleged forged sale deed, was put to end, otherwise no prudent person involved in real estate would pay a sum of Rs. 10 lakh to any person without executing any formal documents. The defendant was also handed over the possession of subject property , which also confirms in agreement to sell CS no. 6/2014 Page No. 7 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
dated 16.06.2006, wherein it was specifically mentioned that possession was handed over to the purchaser.
3.4 The defendant no. 1 has been operating his office in the property in question, the office belongs to defendant's firm Thapar Associates; companies Thapar Infrastructure Ltd. and The Punjab Milkchem Ltd., the record of files, books of accounts, bank statements, minutes of book, registers, common seals of companies, rubber stamp, stationary including letter head, important records and files, office equipment, computer, furniture etc. of period of 30 years are lying there. On getting to know about illicit action of Riazuddin and his associates the defendant filed police complaint on 13.06.2010 to SHO, PS Hauz Khas vide DD no. 35B dated 11.06.2010 (now Ex. DW1/E) followed by other complaints to EOW but no action was taken, therefore, an application u/s 156(3) was filed. The action taken report dated 28.09.2010 (is now Ex. DW1/D) was filed before the court of Metropolitan Magistrate, Saket, Delhi. An FIR no. 107/2011, PS Malviya Nagar, Delhi was registered on such complaint (copy of FIR is also Ex PW2/4).
3.5 The defendant also denies other allegations of the plaint like plaintiff no. 1 did not know the defendant no. 1 or he did not sell the property to the defendant no. 1 or Mr. Narinder was employee of defendant no. 1. The plaintiffs approached the court with malicious intentions, they played a fraud upon the court by concocting a false story CS no. 6/2014 Page No. 8 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
and concealing various facts relating to the dispute of the property, by obtaining orders for registration of FIR. The impersonation was carried out by the plaintiffs in furtherance of devious design to cheat and defraud the defendant. The defendant no. 1 also denies other allegations of the plaint with request to dismiss the suit.
4. (Replication of plaintiffs) The plaintiff filed replication, while denying the allegations of written statement and reaffirming the plaint as correct. The plaintiff also explains the status of other civil suits in respect of the suit property. It is also explained first time in the replication that the plaintiff and defendant no. 1 had entered into a collaboration agreement and therefore, an agreement to sell between the parties and a total sum of Rs. 50 lakh was paid by defendant no. 1 to the plaintiff but the balance consideration amount of agreement to sell is yet to be paid by the defendant no. 1, however, in order to cheat the plaintiffs, the sale deed has been forged. It was the plaintiff who was owner of property but no sale deed was executed in favour of defendant no. 1. The defendant no. 1 was well aware of litigation between the DDA and plaintiff no. 1. The defendant no. 1 has no right, title or interest in the property except agreement to sell had been executed in the year 2006. The plaintiffs have not impersonated anyone as Mirazuddin, the plaint is correct. So far acquisition by DDA of the property is concerned, the plaintiffs have filed suit for injunction the same was decreed against Mr. Rajeev Chopra, CS no. 6/2014 Page No. 9 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
Subhash Gogia, Manmohan Krishan and DDA, the DDA had challenged the said order in first appeal, the appeal was allowed, however, the regular second appeal no. 226/2008 is pending before Hon'ble High Court of Delhi and there is stay on the operation of order dated 18.10.2008. 5.1 (Other relevant facts on record)In written statement and replication, some aspect are appearing vis a vis names of many persons or reference of SLP etc. In pleading parties have not reflected such facts clearly of scattered record and it needs to state the relevant facts, so that name or other circumstances may not look strange to case. 5.2 It can be summarized as that there was a land measuring 2500 sq. yds. comprising khasra no.569/297 of Sh. K.K. Chopra, it was acquired in the year 1961 however, the acquisition was challenged in writ petition by Shri KK Chopra but it was dismissed, however, his LPA was allowed by Hon'ble High Court of Delhi and notification of acquisition of land was quashed. However DDA preferred an SLP. During 1970 the said Sh. K.K. Chorpa sold land measuring 1250 sq. yds. (bearing no. K16 & K17) by way of agreement to sell dated 29.09.1970 to Sh. Riazuddin and general power of attorney of said property measuring 1250 sq. yds in favour of Mirazuddin. In the year 1987 Sh. K.K. Chopra expired but a settlement took place between the LRs of Sh. K.K. Chopra and DDA in the pending SLP, whereby land measuring 1000 sq. yds came to LRs of Sh. K.K. Chopra and remaining land to DDA. The SLP was disposed off. CS no. 6/2014 Page No. 10 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
However civil suit no. 594/06/1988 was filed by Sh.
Manmohan Krishan ( and Shri Riazuddin was impleaded as plaintiff no.2 in the said suit on the basis of his application U/O XXII rule 10 CPC) against Sh. Rajeev Chopra, Sh. Subhash C. Gogia and DDA for permanent injunction in respect of property bearing no. 16 & 17 Hauz Khas, Delhi, which was decreed on 24.07.2007 by the Court of Civil Judge, Delhi, whereby DDA was restrained from dispossessing the plaintiff no. 2 Riazuddin except by due process of law. Moreover one Ms Jasbir Kaur also filed an application U/O XXII rule 10 CPC to implead her party to said suit (in respect of part of Property no. K16 Hauz Khas Enclave, New Delhi), but the said application was dismissed by the court of Civil Judge, Delhi. The said Jasbir Kaur preferred an appeal RCA no. 24/2007 under the title Jasbir Kaur vs. DDA ( but she stopped prosecuting it, instead Ms Kusum Lata, Ms Shalini Goyal and Ms Alka Goyal filed application under XXII rule 10 CPC to implead their names in appeal as they stepped into shoe of Ms Jasbir Kaur) . In another appeal RCA no. 27/2007 under the title DDA vs. Manmohan Krishan & Riazuddin and two others, DDA also assailed the decree before the first appellate court of Additional District Judge Delhi. Both the appeals were dismissed by judgment dated 18.10.2008 that there is false, frivolous and vexatious litigation for two decade, Mr. Riazuddin and Manmohan Krishan each was imposed cost of Rs. 50,000/. The decision in first appeal has been CS no. 6/2014 Page No. 11 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
assailed by Riazuddin in second appeal RSA No. 226/2008 under the title Riazuddin vs. DDA & Ors., second appeal RSA No. 235/2008 by Kusum Lata & Ors. vs. DDA & Ors. before Hon'ble High court of Delhi. When plaintiff filed their replications, both the appeals were pending. However, during the pending of this suit, the Hon'ble High Court of Delhi has decided both the appeal on 28.4.2015, both the appeals have been dismissed and a copy of judgment is placed on record by the defendant no. 1, at the stage of final arguments. Consequently, the judgment and decree dated 18.10.2008 in RCA no. 24/2007 and RCA no. 27/2007 stand confirmed, which merged into decree dated 28.4.2015 of the superior court.
6.1 (Issues and evidence) - The issues have already been reflected in paragraph 1 above. However, in order to establish the case, the plaintiff no. 1 Sh. Mirazuddin/ PW1 and plaintiff no. 2 Riazuddin/ PW2 entered into the witness box. The defendant no. 1 Sh. Hardeep Singh Thapar/ DW1 is the exclusive witness for himself.
6.2 It is relevant to mention here that initially for want of appearance the defendants 1 & 2 were proceeded exparte, the plaintiffs 1 & 2 entered into the witness box, however, subsequently, on two occasions the exparte order/ proceedings against defendant no. 1 were set aside. After written statement of defendant no.1, the formal issues were framed. When the occasion came for statement of witnesses, the CS no. 6/2014 Page No. 12 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
plaintiff no. 1 was not in disposing state of health, application was filed that he would not be able to come into the witness box and considering his request, it was plaintiff no. 2/ PW2 who came into witness box for his crossexamination on behalf of defendant no. 1.
6.3 During the course of evidence, both the parties have led their oral statements vis a vis documentary record, to show them at glance, it is tabulated as follows:
Plaintiffs' documents S. No. assigned Name of document Remarks No. to document
1. Ex. PW1/1 Registered sale deed dated To prove it is forged 02.05.2005 in favour of defendant deed and does not no.1. show sign or photo of Mirazuddin
2. Ex PW1/2 Registered Sale Deed dated Subscribed by 14.11.2005 by plaintiff no.1 in favour Plaintiff no.1 as an of plaintiff no.2, in whose favour attorney of Shri KK there was agreement to sell dated Chopra 2.9.1970
3. Ex. PW1/3 Copy of possession notice dated found affixed on the 21.02.2008 by State of Bank of subject property Hyderabad in the name of Borrower M/s Thapar Associates
3. Ex. PW1/4 Copy of Notice dated 01.03.2008 To withdraw the sent by plaintiff no. 2 to State of notice dated Hyderabad 21.2.2009
4. Ex. PW1/5 Complaint dated 05.03.2008 to To register case DCP, EOW. against defendant no.1 CS no. 6/2014 Page No. 13 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
5. Ex. PW1/6 Certified copy of criminal complaint It was accompanied filed by plaintiffs against defendant with copies of no. 1 and others. aforementioned record
6. Ex. PW1/7 Orders passed by Ld. Metropolitan Pertaining to (colly) Magistrate, Delhi application U/s 156 Cr P C
7. Ex. PW1/8 Copy of order dated 11.08.2008 . Directions to register FIR and file report.
8. Ex. PW1/9 Copy of FIR no.476/11 PS Hauz = Ex PW2/5 Khas U/s 420/468/471 IPC showing plaintiff no.2 as complainant.
9. Ex. PW1/10 Copy of appeal by plaintiffs before State Bank of DRTI, Delhi in respect notice Hyderabad and ExPW1/3 defendant no.1 were made party
10. Ex. PW1/11 Copy of restrain order passed by Debt Recovery TribunalI, New Delhi.
11. Ex. PW1/12 Photocopy of election card of I/Card was issued on plaintiff no.1 Mirazuddin 1.1.2008, showing years 63 years of age S. No. assigned Name of document Remarks No. to document 12 Ex. PW2/1 Certified copy of annual return To prove that Shri (colly) along with list of share holders of Narinder Malik s/o M/s. Punjab Milk Chem Ltd. for the Shri Satbir Singh is financial year 2003, 2007, 2008, share holder in 2009, 2010 & 2011 defendant no.1's company/firm CS no. 6/2014 Page No. 14 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
13 MarkA Application for employment of Mr. It is also bearing
Narinder Malik s/o Late Satvir photograph of
Singh as Security Guard in M/s. applicant.
Punjab Milk Chem Ltd. in the year
1998
14 Ex. PW2/3 Certified copy of sale deed dated To prove sale deed
14.03.2005 by defendant no.1 as of contemporaneous an attorney of seller in favour of his period vis a vis Mr. son Mr. Manish Thapar Narinder Kumar is a witness to deed.
15 Ex. PW2/4 Copy of FIR no. 107/11, P.S. registered on the
Malviya Nagar complaint of
defendant no.1
16 Ex. PW2/5 Copy of FIR no. 476/08, P.S. Hauz registered on the
Khas (EOW) complaint of plaintiff
Defendant no. 1/ Sh. Hardeep Singh Thapar's documents:
S. No. assigned Name of document Remarks
No. to document
1. Ex. DW1/A Statement of bank account of One cheque was
defendant no. 1 showing debited on
payment of two cheques of Rs. 20.4.2005 and
5 lakh each to plaintiff no. 2. another on 9.5.05
2. Ex. DW1/B *Agreement to sell dated *it shows
(Colly) 29.09.1970 between Sh. K.K. consideration
Chopra and plaintiff no. 2. amount of Rs.5
lacs
**Agreement to sell dated
**To establish
16.06.2006 between plaintiff no.
possession of
2 and defendant no. 1.
defendant no. 1.
3. Ex. DW1/C General power of attorney dated
CS no. 6/2014 Page No. 15 of 30
Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
29.09.1970 by Sh. K.K. Chopra
in favour of plaintiff no. 1.
4. Ex. DW1/D one sheet of ATR dated It is photocopy and
28.09.2010 by the police officer incomplete report.
to the court.
5. Ex. DW1/E Copy of complaint dated Against both 11.06.2010 written by defendant plaintiffs and no. 1 to the police. Arshad Qureshi, Kallu Khan, Moihddin 7.1 (Final hearing) - At the stage of final hearing, Sh. R.S. Soni, Advocate for plaintiff and Ms. Deepika Jain, counsel for defendant no.1 have filed written synopsis along with case law, not only the same were exchanged by the parties but also oral submissions have been advanced. 7.2 It requires to compile the submissions of both sides. Simultaneously it is necessary to mention here that many things have been unfolded by the parties either during crossexamination of witnesses or in their final submissions, which were not initially mentioned in the pleading. The same was either carried to bring the conduct of opposite party on record or there were such nature of questions or record that has seen the light of the day.
7.3.1 The plaintiff relies upon precedent "S.P. Chengalvarya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and others" in Civil Appeal No. 994 of 1972 decided on 27.10.1993 that fraud avoids all judicial CS no. 6/2014 Page No. 16 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
acts ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Further, the plaintiff narrates the plea taken in case, which has already been reflected in para 2 of this judgment. Moreover, during the pending of present suit, the matter was under investigation in FIR no. 476/2008, PS Hauz Khas and investigating officer Inspector Manish Joshi, EOW Cell was called pursuant to proceeding dated 22.04.2010, for identity of plaintiff no. 1 and to compare with the photograph appearing on sale deed (Ex. PW1/1). On 16.07.2010, plaintiff filed document to substantiate his identity and Inspector Sanjay Kumar also furnished his report. In addition it is matter of record of judicial proceeding dated 07.05.2014 that during the evidence of PW2, it revealed that it is an admitted position that the sale deed was not executed by plaintiff no.1 but by one Mr. Narinder representing himself to be Mirazuddin. Ld. counsel for plaintiffs request that matter was kept pending for consideration whether there can be decree u/o XII rule 6 CPC and on subsequent hearing the case was posted for defendant's evidence as an opportunity to him. Otherwise it suffice that the said sale deed was never subscribed by plaintiff no. 1 and on this sole ground, the sale deed is liable to be cancelled.
7.3.2 Moreover, PW2/ plaintiff no. 2 Riazuddin has been cross examined by defendant no. 1 but the entire crossexamination remained unchallenged, unrebutted and unimpeached; in fact PW2 has not been CS no. 6/2014 Page No. 17 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
crossexamined on behalf of defendant no. 1 to put his own case to PW2, consequently, the defendant no. 1 did not challenge the facts and records tendered by the plaintiffs. It is settled law that noncrossexamination of a witness on a particular aspect is deemed to have been accepted by the crossexamining party the part of the deposition, reliance is placed on Rajinder Parshad (dead) by LRs vs. Smt. Darshana Devi, 93 (2001) Delhi Law Times 1 (SC). Further, PW2 has stated categorically that he never went to the office of SubRegistrar or defendant no. 1 was never in possession of the subject property nor they represented Narinder Kumar as Mirazuddin vis a vis the sale deed was executed by Narinder representing him to be Mirazuddin, these aspects remained unassailed in crossexamination consequently, the sale deed can be canceled.
Simultaneously, the evidence of DW1 substantiate the case of plaintiffs, like the DW1 came to know about illegality/ defect in the sale deed dated 02.05.2005 which has been got registered by impersonation of Mirazuddin through one Mr. Narinder and this aspect was in the knowledge of defendant no. 1 prior to execution of agreement to sell dated 16.06.2006 (Ex. DW1/B). It also makes it crystal clear that the sale deed dated 02.05.2005 is forged and fabricated. Whereas, the defendant no. 1 nowhere whispered about Narinder Malik nor the police reports lodged by defendant no. 1 names said Narinder or Narinder Malik. The defendant no. 1 has shown ignorance about Mr. Narinder Malik, whereas CS no. 6/2014 Page No. 18 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
he admits in his crossexamination that Mr. Narinder Malik is shareholder in his company holding 65,000 shares vis a vis Mr. Narinder Kumar is a margin witness in the sale deed (Ex. PW2/3), which was executed by defendant no. 1 as an attorney of Sh. Hargobind Bajaj in favour of his son Mr. Manish Thapar. The defendant no. 1 tried to avoid give direct answer by stating that it is matter of record that Mr. Narinder Kumar is witness in the said sale deed. The said Narinder Malik was arrested in case FIR no. 107/11 although defendant no. 1 as a complainant has not named him as an accused but DW1 admits in his crossexamination that the said Narinder Malik is the person, who was arrested by police, who had executed the sale deed as Mirazuddin.
7.3.3 The conduct of defendant can be assessed that he is in the business of real estate and there are cases of cheating registered against him in various police stations in Delhi, Haryana, Punjab. He was hesitant to narrate the number of cases against him, but when confronted with FIR numbers, he admitted those eight cases. Immediately on the basis of sale deed dated 02.05.2005, showing consideration amount of Rs. 20,00,000/ he obtained cash credit facility of Rs. 3.75 crores against the subject property from the bank and during crossexamination/ proceeding he undertook to produce record with regard to settlement with the bank, however the said record never seen light of the day. He also devised a fine reply that in sale deed dated 02.05.2005 the consideration amount CS no. 6/2014 Page No. 19 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
was Rs. 20,00,000/ but in agreement to sell dated 16.06.2006 the consideration amount was Rs. 2.50 crores because he had invested a lot of money vis a vis someone told him interse dispute between the plaintiffs and they were threatening to blackmail him, consequently he had no option but to go for fresh agreement to sell to rectify the earlier defects. Under these circumstances, the sale deed is liable to be cancelled.
Plaintiffs rely upon "Hameed & Ors. vs. Kanhaiya, AIR 2004 All 405", wherein it was held that when sale deed has been proved to be fraudulently executed by defendant without consent and knowledge of owner it does not require interference in cancellation of sale deed. Further, plaintiff also relies upon "Smt. Indu Gulani @ Indu Pahuja & Anr. vs. Sh. Sant Pal Singh in CRP No. 145/2014", paragraph 4 "....Firstly I would like to note that the Supreme Court recently in the judgment in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112 has held if a person is not a party to a document i.e. document is not admitted to be signed by him, then in such a case there is no need of seeking relief of cancellation of the document and it is enough if declaration is sought for...."
Hence, the plaintiff has proved the issues and the sale deed is liable to be cancelled.
7.3.4 The plaintiffs have filed WP (c) no. 5661/2015 Riazuddin vs. Govt. of NCT of Delhi and Ors. including DDA as respondent no. 3 under CS no. 6/2014 Page No. 20 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
section 24 (2) of the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 which is pending before Hon'ble High Court of Delhi and there is direction to maintain status quo with regard to nature, title and possession of subject land vide order dated 29.05.2015.
7.4.1 On the other side, the defendant no. 1 at the outset requests that the suit has been undervalued since the subject property is of value more than Rs. 25 crores, even admitted agreement to sell dated 16.06.2006 shows consideration amount of Rs. 2.50 crores, it is beyond the pecuniary jurisdiction of this court. Moreover, the plaintiffs withheld from defendant about number of disputes in the subject property and assured defendant that property is free from all kinds of encumbrances and they have clear title. The defendant came to know about the dispute after paying the total amount.
Moreover, the defendant no. 1 has also reservations that the plaintiffs throughout for the couple of decades, either in one form or another form mislead the courts, they are land grabbers, they habitually used their servants and employee for wrongful purposes, they file false cases and cheat unsuspected, innocent people.
7.4.2 The plaintiffs have not impleaded necessary parties like DDA (who actually owns the land) or M/s. M.M. Buildcom Pvt. Ltd. (as plaintiffs entered into agreement dated 09.05.2007 and took Rs. 25 lakhs CS no. 6/2014 Page No. 21 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
from them) and legal heirs of Sh. K.K. Chopra, who took land measuring 1000 sq. yds. plot in compensation from DDA.
7.4.3. The plaintiffs are not owner much less on the basis of sale deed dated 14.11.2005 (Ex. PW1/2) since Sh. K.K. Chopra had expired on 16.11.1987 and general power of attorney ceased to operate on his death. Moreover, in RCA no. 27/2007 DDA vs. Manmohan Krishan & Ors., it was specifically conceded and recorded that Mr. Riazuddin makes claim of settled possession and he was not claiming title of Plot no. K17 and the court had also observed that appellants in RCA no. 27/2007 and the respondents in RCA no. 24/2007 had no right or interest in the suit land/ plots, finding no merits in appeal, cost of Rs. 50,000/ was imposed on each of them. Moreover, the general power of attorney set up by the plaintiff is also a forged document, since the registration number of registered general power of attorney pertains to Sh. Din Mohammad in favour of one Om Prakash Jain. The defendant further relies upon the findings given in RCA no. 27/2007 and RCA no. 24/2007 vis a vis the findings in RSA no. 226/2008 and RSA no. 235/2008 by Hon'ble High Court of Delhi, to demonstrate the plaintiff's claim is not tenable from any quarter. The defendant also relies upon the proceeding of civil suit no. 625/1998 (referred in the written arguments) but not placed in evidence, to demonstrate that in Manmohan Krishan's case Riazuddin had deposed as PW2, which reflects certain aspects like he purchased the property in CS no. 6/2014 Page No. 22 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
1973 from Sh. K.K. Chopra, his son Arshad Qureshi had share in it and Manmohan Krishan used to collect rent vis a vis Manmohan Krishan used to work with Riazuddin. The defendant is trying to demonstrate that the plaintiffs, his son Arshad and their accomplices are guilty for committing fraud and at different point of time they are projecting facts and document at their convenience to self serve their purpose. Hon'ble High Court to Delhi in judgment dated 28.04.2015, while disposing the appeals, held that land is a government property trespassed by plaintiff. Thus, both the sale deeds dated 02.05.2005 and 14.11.2005 merit cancellation by this court and defendant be declared entitled to initiate recovery of amounts and to claim damages besides compensation proceedings against the plaintiffs.
7.4.4 The plaintiffs now run for more litigation by filing WP (c) no. 5661/2015 before Hon'ble High Court of Delhi by taking U turn again in the beginning claiming to be tenant, then claiming to be owner and now devised a new scheme for claiming compensation in the recently enacted "the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013", which speaks a lot about lies and habit of filing false and frivolous litigation over the three decades. The court may pass appropriate order.
8.1 (Findings) - The contentions of both the sides are considered and analyzed since both the sides have their own plea of rival rights and CS no. 6/2014 Page No. 23 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
documents. As already stated, the bundle of facts are scattered at many places in voluminous record, that is why the case of each party has been detailed in paragraph 2, 3 & 4 above vis a vis the other features have been narrated in paragraph 5; the other aspects unfolded, either during evidence or at the juncture of final arguments, the same have also been narrated in paragraph 7 above. Now, another aspect is also emerging that the suit was hotly contested but in the written final arguments, the defendant no. 1 (paragraph 14 thereof) has also contended that sale deed 02.05.2005 merit cancellation besides cancellation of other sale deed dated 14.11.2005 vis a vis to declare that defendant no. 1 is entitle to initiate recovery of amount, damages/ compensation. The defendant no.1 also prays for dismissal of suit. Despite it the court has to assess the evidence.
8.2 Since both the parties have brought on record many facts, which were earlier not in the pleadings and some of those facts have relevance to facts on record. There are also inconsistency to their own case and also contradictory to each other. The plaintiffs introduced first time a fact that there was a collaboration agreement with defendant no.1 and defendant no.1 had agreed to resolve the dispute with DDA but he failed to do so, thence agreement to sell was entered. There is no such plea by them in the pleadings. Moreover, plaintiffs themselves produced original receipt dated 6.5.2005 [(MarkA/Ex DW1/P1) of Rs.5 lac received CS no. 6/2014 Page No. 24 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
by Shri Riazuddin Qureshi by cheque no.002502 drawn of Syndicate Bank, Old Rajender Nagar, Delhi, in terms of agreement of collaboration in respect of subject property] during cross examination of DW1, but he denied it with comments that he cannot say if it may be in the writing of his son Mr. Manish Thapar. Generally, original receipt ought to have been in the possession of person, whom issued it but here original receipt ought to be in possession of addressee, is produced by the plaintiffs; otherwise no collaboration agreement has been produced by the plaintiff. Whereas, the defendant's bank statement (Ex DW1/A) reflects encashment of this cheque. The possession of the subject property is with plaintiff, as per evidence on record and original papers of agreement to sell dated 16.6.2006, sale deed etc. are also with the plaintiff and plaintiffs explains that the same were got released from Mr. Prabhajot Chabra as they were pawned by the defendant no.1 and plaintiffs paid him Rs.16,80,000/. Whereas, defendant no.1 deny all these aspects and he claims that he was not handed over the record earlier but at the time of sale deed dated 2.5.2015, which have been overpowered by plaintiff when the subject property was also trespassed. This discussion reveals, that both the parties have hidden many aspect.
8.3 Ld. counsel for the defendant no.1 has objected that suit was not valued properly for the purposes of jurisdiction as value of property is about Rs.25 crores, the agreement to sell dated 16.6.2006 CS no. 6/2014 Page No. 25 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
also reflects consideration amount of Rs.2.50 crores, being not disputed by plaintiffs, whereas plaintiffs have valued the suit for Rs.20 lacs on the basis of sale consideration amount shown in the sale deed dated 2.5.2005.
However, in Suhrid Singh @ Sardool Singh Vs Randir Singh 2010 RLR 229 (SC), it is held in respect of valuation of suit for the purposes of court fees, when plaintiff claims that he has not executed sale deeds and sues for declaration that the deeds are not binding to the coparcener property and he asks for joint possession of the same, then court fee is computable u/s 7 (iv)(c) of the Court Fee Act. By applying the same analogy when the plaintiffs in the present case claim that sale deed is forged and fabricated, the plaintiff no. 1 is not author of the same, nor he subscribed the sale deed, the suit has been valued on the basis of consideration amount of Rs. 20 lakhs shown in the sale deed dated 02.05.2005 (Ex. PW1/1), the provisions of section 7(iv) of the Court Fees Act, 1870 will come into operation and consequently, the suit has been properly valued for the purpose of court fee under the Court Fee Act, 1870 as well as the Suit Valuation Act, 1887.
Now the issues are taken.
8.4.0.
1. Whether the plaintiff is entitled to the decree of cancellation of sale deed dated 02.05.2005 if so its effect? OPP 2 Whether the sale deed dated 02.05.2005 is forged and fabricated CS no. 6/2014 Page No. 26 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
document if so its effect? OPP The onus to prove both the issues are on the plaintiff. Both the issues are taken together since they are interconnected. The findings on issue no.2 will determine the fate of issue no.1.
8.4.1 Therefore taking into account stock all facts, features, evidence and submissions the following conclusions are drawn:
(i) The defendant no.1 admits in his cross examination that he is still not sure that the person who had executed sale deed (Ex PW1/1) was Mirazuddin or not. However, he also does not claim that plaintiff no.1 had executed the said sale deed.
(ii) The plaintiffs have proved election identity card (Ex PW1/12) of plaintiff no.1 Mirazuddin, there is no cross examination on this count nor any proof that Mirazuddin/plaintiff no.1 had subscribed the sale deed (Ex PW1/1).
(iii) DW1/Defendant admits in his cross examination that prior to execution of agreement to sell dated 16.6.2006 (Ex DW1/B), he was very well knowing that sale deed dated 2.5.2015 was subscribed by another person as Mirazuddin. DW1 also gives reasons that this defect was one of the reason for entering into agreement to sell dated 16.6.2006.
(iv) The sale deed dated 2.5.2005 does not bear photograph of Mirazuddin (as also shown in I/Card Ex PW1/12) but of some other person, who was arrested by police. DW1 admits that the said person was Mr. Narinder Malik.
(v) Although there are rival claim that said Narinder or Narinder Kumar or Narinder Malik is or not, one person or he is person of plaintiff or of defendant, however, it does not need any declaration, but what stand CS no. 6/2014 Page No. 27 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
proved that sale deed was subscribed by person other than plaintiff no.1 Mirazuddin and there is photograph of said person, who appeared and impersonated as Mirazuddin.
(vi) Plaintiffs claims that they came to know about the sale deed first time, after 29.2.2008 when notice of bank was discovered by them on the subject property. The impugned sale deed is of 2.5.2005. The agreement to sell between the plaintiff no.2 and defendant no.1 is 16.6.2006, which reflects payment of Rs.5 lac by cheque bearing no.002502. The plaintiffs have set up original receipt 6.5.2006 (MarkA/DW1/P1) of receipt of said cheque by Riazuddin, which was got encashed by him (since it shows debit entry in the bank account of defendant Ex DW1/A).
(vii) The sale deed 2.5.2005 (Ex PW1/1) recites about general power of attorney of Shri KK Chopra in favour of Mirazuddin, when sale deed was got registered. Similarly, the sale deed dated 14.11.2005 (Ex PW1/2) recites about general power attorney and agreement to sell by Shri KK Chopra. Except name of buyer (plaintiff no.2) and sale consideration amount, the substance/language/covenants of both the sale deeds (Ex PW1/1 and Ex PW1/2) are ditto serial wise as well as similar words are shown in Capitals, is it coincident or otherwise, since the sale deeds are of different times.?
8.4.2 The aforementioned conclusions prove that sale deed dated 2.5.2005 (Ex PW1/1) is forged and fabricated, hence issue no.1 has been proved by plaintiff and it is decided in their favour. Its effect is that sale deed is void abinitio and it does not create any rights in favour of defendant no.1.
8.4.3 In view of findings given on issue no.1, the said sale deed dated 2.5.2005 (Ex PW1/1) registered as document no. 6558, Book No. I, CS no. 6/2014 Page No. 28 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
volume 4948 pages 5359 (by a person impersonating seller as Mirazuddin in favour of purchaser Shri Hardeep Singh Thapar) in respect of property no. K17, Hauz Khas Enclave, New Delhi is cancelled. The issue no.2 has also been proved by the plaintiffs. Let the registration of sale deed be removed from roll of Register being maintained by the /Defendant no.2 SubRegistrarV, Mehrauli, New Delhi, forthwith. 8.4.4 However, the defendant no.1 has reservation that sale deed 4.11.2005 (Ex PW1/2) executed by the plaintiff no.1 in favour of plaintiff no.2 is also void, since Shri KK Chopra, had died in the year 1987 and his general power of attorney ceased to operate vis a vis the said power of attorney was also forged. However, neither there was any counter claim of defendant in respect of said sale deed dated 4.11.2005 nor any suit by the plaintiffs in this regard nor any formal issue, thus this court is not giving any findings either in favour or against validity of said sale deed dated 4.11.2005. Moreover, there are other litigation also of parties to suit, the issues decided in the present case would have no opinion or expression on other proceedings nor it bars the competent authorities to do the things under the law.
9. Issue no. 3 Relief In view of the above findings given on issue no.1 and 2, the plaintiffs' suit is allowed and sale deed dated 2.5.2005 (Ex PW1/1) registered as document no. 6558, Book No. I, volume 4948 pages 5359 (by a person impersonating seller as Mirazuddin in favour of purchaser CS no. 6/2014 Page No. 29 of 30 Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
Shri Hardeep Singh Thapar) in respect of property no. K17, Hauz Khas Enclave, New Delhi is cancelled and defendant no.2 is directed to carry such cancellation in the record maintained. Moreover, the defendant is restrained from using the sale deed dated 2.5.2005 (Ex PW1/1) for any purpose, whatsoever. It has been clarified by defendant no. 1 that original sale deed is supposed to be in the charge sheet and the same is not with him, it would have been collected by the investigating officer from the plaintiffs, since the plaintiffs have over powered the documents. Both the parties will bear their own costs and decree sheet be drawn accordingly.
10. A copy of this judgment be sent to SubRegistrarV, Mehrauli, New Delhi for compliance of directions given in paragraphs 9, 8.4.4 and 8.4.3 above and the defendant no. 2/ SubRegistrarV will be furnish his compliance report within one month. File is consigned to record room.
Announced in the open Court (Inder Jeet Singh )
on Saturday, Kartika 9, Saka 1937 Additional District Judge02
(South), Saket/ New Delhi /
31.10.2015
CS no. 6/2014 Page No. 30 of 30
Mirazuddin & Anr. vs. Hardeep Singh Thapar & Anr.
CS No. 6/2014
31.10.2015
Present : Proxy counsel for plaintiffs.
Defendant no. 1 in person.
Defendant no. 2 is exparte.
This is judgment today. Vide separate judgment announced today, the plaintiffs' suit is allowed and sale deed dated 2.5.2005 (Ex PW1/1) registered as document no. 6558, Book No. I, volume 4948 pages 5359 (by a person impersonating seller as Mirazuddin in favour of purchaser Shri Hardeep Singh Thapar) in respect of property no. K17, Hauz Khas Enclave, New Delhi is cancelled and defendant no.2 is directed to carry such cancellation in the record maintained. Moreover, the defendant is restrained from using the sale deed dated 2.5.2005 (Ex PW1/1) for any purpose, whatsoever. It has been clarified by defendant no. 1 that original sale deed is supposed to be in the charge sheet and the same is not with him, it would have been collected by the investigating officer from the plaintiffs, since the plaintiffs have over powered the documents. Both the parties will bear their own costs and decree sheet be drawn accordingly.
File is consigned to record room.
(Inder Jeet Singh)
ADJ02 (South), Saket
M New Delhi /31.10.2015
CS no. 6/2014 Page No. 31 of 30