Delhi District Court
Shri Bharat Bhushan Gupta vs Shri Yad Ram 2Nd Address on 17 November, 2007
IN THE COURT OF SHRI T. S. KASHYAP , ADDL. DISTRICT
JUDGE, DELHI
SUIT NO: 277/06/98
SHRI BHARAT BHUSHAN GUPTA,
S/O LATE SHRI RAM SAHAI GUPTA,
R/O 1944/41 , NAIWALA , KAROL BAGH,
NEW DELHI-110005,
( The sole legal representative of
of deceased plaintiff late Smt. Rukmani Devi)
PLAINTIFF
VS.
1 SHRI YAD RAM 2nd Address
S/O SHRI CHUNNI LAL Block No. 14,
R/O HOUSLE NO. 4249, Quarter No. 9,
GALI NO. 61, REGHARPURA, DDA Flats, Dev Nagar,
KAROL BAGH, New Delhi.
NEW DELHI -110005
2 SHRI ASHOK KUMAR
S/O SHRI PANNA LAL
R/O D-257 , MADIPUR J.J.COLONY,
NEW DELHI-110063
3 SHRI AMRIT PRADHAN
S/O SHRI PASHUPATI PRADHAN
GALI NO. 61, REGHARPURA,
KAROL BAGH,
NEW DELHI.
...........Defendants
Contd.2/-
2
DATE OF PRESENTATION OF SUIT : 29.11.2006
DATE OF ARGUMENTS : 31.10.2007
DATE OF DECISION : 17.11.2007
SUIT FOR CANCELLATION OF DOCUMENTS,
POSSESSION AND MESNE PROFITS
JUDGMENT EX PARTE
The suit was filed by Smt. Rukmani Devi against Sh. Yad
Ram & others for cancellation of documents, possession and mesne
profits. It has been pleaded that in the month of November,1988 ,
defendant No.1 Yad Ram sold with possession of property bearing
No. 4249, consisting of a room, verandah, stairs, kitchen, bathroom
and latrine on the first floor and barsati on the second floor
constructed on a plot of land measuring 50 sq. yards situated in
Khasra No. 1568, Gali No.61, Block E, Regharpura, Karol Bagh,
New Delhi, to the deceased for a total consideration of
Rs.90,000/- on an agreement /power of attorney basis,in as much
as the plot underneath the said property was on lease from the
DDA and defendant No.1 executed an agreement to sell,
special power of attorney, general power of attorney, affidavit,
registered Will etc. and receipt for sum of Rs.90,000/ - executed on
Contd.3/-
3
22.11.88. The original title deeds were also handed over by defendant No.1 to the plaintiff at the time of transaction. It has further been pleaded that after the sale, defendant No.1 offered to beocme a tenant of deceased plaintiff in the said property and the deceased plaintiff having agreed, the defendant No.1 also executed a rent agreement in favour of deceased plaintiff, accepting as a tenant for residential purpose at a rent of Rs. 2000/- per month. Subsequently a regular sale deed dt. 13.8.1996 was executed on behalf of the defendant No.1 by the attorney Sh.Ram Sahai Gupta in favour of the plaintiff and it was also duly registered with the Sub registrar,New Delhi and deceased plaintiff applied to the DDA for mutation of the plot underneath the property in her favour and she started receiving reply dt. 4.11.96 from Asstt. Collector , DDA that the defendant No.1 has already sold the property to some one else and that the deceased plaintiff should approach a court of law for appropriate redressal. On enquiries from the office of Sub Registrar the deceased plaintiff came to know that defendant No.1 falsely and fraudulently executed a sale deed dated 23.8.95 in favour of defendant No.2 for consideration of Rs. One lac. Defendant No. 2 further falsely and fraudulently executed a sale deed dated 6.2.1996 in respect of one half interest in suit property in favour of defendant No. 2.
Contd.4/-
42 Originally the case was filed on 6.5.98 in the Hon'ble High Court and on service of notice the defendant No.1 had contested the suit by filing written statement. However, since the defendant No.2 failed to file the written statement within stipulated period the right to contest the suit by defendant No.2 was closed vide order dated 24.8.99 .The defendant No.3 , however, had refused to receive the process and was deemed to have been served vide order dated 11.10.02 . However, in the meantime, plaintiff had expired and an application for bringing the LRs on record was moved and fresh notice to defendants 2 and 3 was ordered to be issued for 14.5.03. The notice was perhaps served on defendants Nos. 1 & 2 and on whose behalf adjournment was taken for filing reply but defendant No.3 was not served. Subsequently , vide order dated 31.10.03 the case was transferred to Ld. District Judge vide order dated 31.10.03 and my ld. Predecessor vide order dated 27.0.9.07 proceeded the defendants ex parte. My ld. Predecessor, however, vide order 31.10.2005 had dismissed the suit in default at the stage of filing documents, admission denial and framing of issues on account of non appearance of plaintiff. Thereafter, an application under Order 9 Rule 9 CPC was moved for restoration of the suit but service of that application on the defendants was got effect Contd.5/-
5by publication vide order dated 29.11. 06 subject to cost of Rs.1000/- which was not deposited by 12.1.2007 . However, defendants were proceeded ex parte vide order dated 19.2.07.
3 In ex parte evidence Sh. Bharat Bhushan Gupta, Legal Representative of deceased plaintiff as PW -1 tendered his affidavit Ex.PW 1/A in lieu of his examination in chief corroborating the facts and allegations wherein he proved the documents Ex.PW 1/1 to Ex.PW 1/18 and his evidence was closed by ld. counsel for the plaintiff vide order dated 10.5.07.
4 My ld. predecessor thereafter adjourned the matter for final arguments and accordingly I have heard the submissions from ld. counsel for the plaintiff and perused the record. On behalf of the plaintiff it has been submitted by ld. counsel that testimony of PW -1 has remained uncontroverted and unchallenged and the same has to be believed by the Court and accordingly the suit be decreed. However, before believing the testimony of the witness who has not been cross examined , the Court has to be careful in assessing the testimony and documentary evidence . It is pertinent to mention that on behalf of the plaintiff neither any other independent witness has been examined to corroborate the facts, nor any official from the office of Sub Registrar has been summoned, and Sub Registrar has not been arrayed as Contld.6/-
6defendant in the Memo of Parties for assistance of the Court even to find out whether the documents relied on behalf of the plaintiff were registered with the registrar concerned or not. It is interesting and pertinent to note that all the documents have been exhibited by Sh. Bharat Bhushan Gupta in his affidavit Ex.PW 1/A but none of these documents could have been proved by him as per law , because he is neither executant , nor witness of any facts as contained in the documents. He has not even identified signatures or thumb impression of his deceased mother Smt. Rukmani Devi. Therefore, the plaintiff has failed to prove the documents on record as required under Section 60 or 61 of Indian Evidence Act and therefore the testimony of PW-1 cannot be believe. As per the pleadings and contents of affidavit Ex.PW 1/A and the affidavit , the defendant No.1 Yad Ram in November, 1988 sold the property bearing No. 4249 , consisting of a room , verandah , stairs, kitchen balthroom and latrine on the ground floor and one room covered verandah , barthroom and latrine on the first floor and a barsati on the second floor , constructed on a plot of land measuring 50 sq. yards situated in Khasra No.1568 , Gali No. 61, Block E , Regharpura, Karol Bagh, New Delhi to the plaintiff for a total consideration of Rs. 90000/- on agreement/power of attorney , is Contd. 7/-
7basis and Yad Ram , defendant No.1 allegedly executed an agreement to sell , special power of attorney , GPA ,affidavit a registered Will etc alongwith a receipt for sum of Rs.90000/- on 22.11.1988. It has been claimed that all the documents were notarised /registered with the Sub Registrar and Sh. Ram Sahai , husband of the deceased plaintiff was made as the attorney and the original title deeds of the above mentioned property were also handed over by defendant No.1 to the plaintiff at the time of entering into the aforesaid transactions and these documents have been exhibited as Ex. PW 1/1 to Ex. PW 1/6 . It is pertinent to mention that even though it has been claimed that original title deeds of the suit property were handed over by defendant No.1 to the plaintiff but none of the original title documents has been proved on record. The document Ex.PW 1/1 , the alleged agreement to sell does not bear any date of its execution and this document has not been registered. Document Ex.PW 1/3 is the alleged power of attorney executed by Yad Ram in favour of Sh. Ram Sahai Gupta , Ex.PW ½ is the alleged Special Power of attorney purported to have been executed has also not been registered with the sub registrar and same is the case of affidavit Ex.PW1/4. The document Ex.PW1/5 is the alleged Will of Sh. Yad Ram in favour of Smt. Rukmani Devi and document Ex.PW 1/6 is the alleged receipt of Rs.90,000/- by Contd.8/-
8Sh. Ram Sahai but the plaintiff has not summoned the record from the office of Sub Registrar to prove that these documents have actually been registered with the registrar concerned.
5 The registration of these documents as per provisions of section 17 of Registration Act , 1908 was compulsory . It appears that the alleged sale before sub registrar and other formalities have been completed somewhere else instead of getting the same done with the office of sub registrar and, therefore, in terms of provisions of 49 of Registration Act, 1908, there will be no effect on the transaction in respect of the immoveable property in question. It is interesting to note that the document Ex.PW 1/1 does not bear any date of its execution. There is no indication of the time, period or any specific date by which the sale deed in respect of the property was executed. The terms and conditions attached with this document appear to have been annexed on a cyclostyled performa and this document does not indicate the intention of the parties as to what is the outer limit for execution of sale deed. Since no date for execution of sale deed was fixed by the parties on this document Ex.PW 1/1, the said contract was vague as the date of execution of the sale deed was uncertain (unspecific). As per Section 29 of the Contract Act, all contracts, the meaning of which is not certain, or capable of being made certain, are Contd.9/-
9void. Therefore, the contract was void and unenforceable as no time for execution of sale deed was specified.
6 PW-1 has further exhibited the alleged sale deed ExPW 1/8 by Sh. Ram Sahai Gupta in favour of Smt. Rukmani Gupta. However , it has been noticed that the particulars of the plaintiff on the document Ex.PW 1/1 are Smt. Rukani Devi, wife of Sh.Ram Sahai Gupta r/o 1944, Nailwala , Karol Bagh, New Delhi, and as per documengt Ex PW 1/3 and Ex.PW ½ allegedly executed by Yad Ram the particulars of attorney are Ram Saha Gupta s/o Sh. Chunni Lal r/o H.No. 41/1944, Nai Wala , Karol Bagh, New Delhi which means that husband of the plaintiff has been made attorney of said Sh. Yad Ram and the document Ex. PW-1/8 but alleged Sale Deed is shown to have been executed by Sh. Ram Sahai Gupta in the capacity of alleged attorney on behalf of Sh. Yad Ram which shows that husband of the plaintiff has been shown as attorney of the owner of the property. 7 It has been claimed that the vacant physical possession of the property was handed over to the plaintiff on the date of execution of Agreement to Sell Ex. PW-1/1 but the said document does not bear any date. It has been claimed that the defendant No. 1 after the sale (which as per the pleadings and evidence was not complete till 22.11.1988) had offered to become a tenant of deceased plaintiff in the Contd.10/-
10aforesaid property and the plaintiff agreed and accordingly, a rent agreement Ex. PW-1/7 was executed. This document has also not been proved on record as per law as PW-1 is neither executant nor a witness of this document and the document is also not registered as required under Section 17 of Indian Registration Act, 1908. It has been claimed that defendant No. 1 had taken the premises on rent @ Rs. 2,000/- per month and the date of execution of this document has been shown as 1.12.1996. It does not appeal to the reason that if other documents were executed on the alleged date 22.11.1988 and the defendant No. 1 had agreed to become a tenant simultaneously, then why this document was executed subsequently. No rent receipt has been proved on record on behalf of plaintiff that the defendant No. 1 had ever paid rent to the plaintiff in this regard. Therefore, this transaction in my considered view is a farce and cannot be believed and the plaintiff is not entitled to any benefit under Section 48 of Indian Registration Act, 1908 to the effect that any delivery of the immovable property in question was handed over to the plaintiff by defendant No. 1.
8 As stated above, the rent agreement Ex. PW-1/1 is unsigned, unregistered and invalid document and as per Section 29 of Contract Act, 1872, this document Ex. PW-1/1 is void for uncertainty as no Contd.11/-
-11-specific date of execution of Sale Deed was specified. There is no explanation as to how and when the execution of Sale Deed became permissible suddenly on 13.08.96. The alleged Sale Deed is purported to have been executed by Sh. Ram Sahai Gupta , husband of the plaintiff and therefore, if he was actually acting as attorney of Sh. Yad Ram , defendant No. 1, then he could have executed the Sale Deed earlier also and there was no reason for waiting for a period from 22.11.88 to 13.8.96 The plaintiff has not even summoned the officials from the office of Sub-registrar to prove the due execution of Sale Deed Ex. PW-1/8. As per provisions of Section 47 of the Registration Act, 1908, a registered documents shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration but in view of the peculiar facts of case, the registration of transaction/Sale Deed etc. was compulsory. Admittedly, the Asstt. Collector, DDA on the request of plaintiff to record mutation of the property in her name replied that the said property was already sold to someone else vide a letter dated 4.11.96 Ex. PW-1/9 and the plaintiff allegedly came to know that defendant No. 1 had fraudulently sold the property on 23.8.95 in favour of defendant No. 1 who was having knowledge of the facts and defendant No. 2 in turn fraudulently executed Sale Contd.12/-
-12-Deed 6.2.96 in respect of half interest in the said property in favour of defendant No. 3 but the plaintiff has failed to summon any official from the office of Sub-registrar to prove on record the alleged transaction by the defendant No. 1 in favour of Smt. Rukmani Devi for obvious reason. Therefore, the plaintiff has failed to prove on record that any valid Agreement to Sell or Sale Deed in respect of the suit property was executed by defendant No. 1 in its favour. Therefore, the testimony of PW-1 cannot be believed and accordingly, in my considered view, the plaintiff is not entitled to the relief as prayed. The suit is accordingly, dismissed. Decree-sheet be drawn accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY.
DATED: (T.S. KASHYAP)
17.11.2007 ADDL. DISTRICT JUDGE:
DELHI.