Delhi District Court
Smt. Neena Juneja vs Shri Jai Prakash on 11 July, 2013
IN THE COURT OF SHRI RAJ KUMAR: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST)
Suit No. 244/2012
Old Suit No. 217/2000
& Suit No. 155/2004
Unique Case ID No. 02402C0519602004
Smt. Renu Vij (deceased)
through LRs:
1. Smt. Neena Juneja
w/o Shri Anil Juneja
d/o Smt. Renu Vij,
r/o G & J (U), 57B, Pitampura,
Delhi110088.
2. Ms. Seema Vij
d/o Smt. Renu Vij
r/o WP36B, Pitampura,
Delhi110088.
3. Ms. Dimple Vij
d/o Smt. Renu Vij
r/o 3C/170, Sumit Sagar,
New D.N. Nagar, Andheri (W),
Mumbai400058.
At present: WP36B, Pitampura,
Delhi110088. ........... Plaintiffs.
VERSUS
1. Shri Jai Prakash
s/o Shri Shamsheer Bahadur
r/o 335, Gali no.2, Saraswati Bhandar,
Gandhi Nagar, Delhi110031.
2. Shri Amrit Lal
s/o Late Shri Ram Lal
r/o IX/478, Subhash Road,
Gandhi Nagar, Delhi110031.
3. Shri Hardwari Lal
s/o Late Shri Itwari Lal
r/o 335, Gali no.2, Saraswati Bhandar,
Gandhi Nagar, Delhi110031.
4. Shri Sunil Kumar
s/o Shri Inderjit Agarwal
r/o 335, Gali no.2, Saraswati Bhandar,
Gandhi Nagar, Delhi110031.
5. Shri Vinod Bedi
r/o House No. 355, Gali no.2,
Saraswati Bhandar, Gandhi Nagar,
Delhi110031.
6. Shri Daljeet Singh Bhatia
r/o House No. 355, Gali no.2,
Saraswati Bhandar, Gandhi Nagar,
Delhi110031.
Also At:
182, Dayanand Vihar, Delhi.
7. Shri Kaushik Bhat
r/o 151, Engineering Enclave,
Pitampura, Delhi110034.
Also At:
60A, Basement, Central Market,
Lajpat Nagar, New Delhi. ......... Defendants.
Date of institution of the suit : 11.10.2000
Date on which order was reserved: 06.06.2013
Date of decision : 11.07.2013
SUIT FOR DECLARATION, SETTING ASIDE OF SALE DEED DATED 10.02.1998
AND PERMANENT INJUNCTION.
Suit No. 245/2012
Old Suit No. 214/1998
& Suit No. 20/2004
Unique Case ID No. 02402C0520872004
Shri Jai Prakash
s/o Shri Shamsheer Bahadur
r/o 335, Gali no.2, Saraswati Bhandar,
Gandhi Nagar, Delhi110031.
........... Plaintiff.
VERSUS
1. Smt. Neena Juneja
w/o Shri Anil Juneja
d/o Smt. Renu Vij,
r/o G & J (U), 57B, Pitampura,
Delhi110088.
2. Ms. Seema Vij
d/o Smt. Renu Vij
r/o 36B, Pitampura,
Delhi110088.
3. Ms. Dimple Vij
d/o Smt. Renu Vij
r/o 3C/170, Sumit Sagar,
New D.N. Nagar, Andheri (W),
Mumbai400058.
At present: WP36B, Pitampura,
Delhi110088.
4. Shri Amrit Lal
s/o Late Shri Ram Lal
r/o IX/478, Subhash Road,
Gandhi Nagar, Delhi110031.
......... Defendants.
Date of institution of the suit : 15.05.1998
Date on which order was reserved: 06.06.2013
Date of decision : 11.07.2013
SUIT FOR DECLARATION, POSSESSION, PERMANENT INJUNCTION,
RECOVERY OF DAMAGES.
Suit No. 246/2012
Old Suit No. 106/1998
& Suit No. 19/2004
Unique Case ID No. 02402C0520652004
Smt. Renu Vij (deceased)
through LRs:
1. Smt. Neena Juneja
w/o Shri Anil Juneja
d/o Smt. Renu Vij,
r/o G & J (U), 57B, Pitampura,
Delhi110088.
2. Ms. Seema Vij
d/o Smt. Renu Vij
r/o WP36B, Pitampura,
Delhi110088.
3. Ms. Dimple Vij
d/o Smt. Renu Vij
r/o 3C/170, Sumit Sagar,
New D.N. Nagar, Andheri (W),
Mumbai400058.
At present: WP36B, Pitampura,
Delhi110088.
........... Plaintiffs.
VERSUS
1. Shri Jai Prakash
s/o Shri Shamsher Bahadur Srivastava
r/o 335, Gali no.2, Saraswati Bhandar,
Gandhi Nagar, Delhi110031.
2. Shri Harkrishan
s/o Shri Sri Chand
r/o 3679, New Dharampura,
Gandhi Nagar, Delhi.
......... Defendants.
Date of institution of the suit : 12.03.1998
Date on which order was reserved: 06.06.2013
Date of decision : 11.07.2013
SUIT FOR PERMANENT INJUNCTION.
JUDGMENT
Vide this common Judgment, I shall dispose of the three suits i.e. suit bearing no. 246/12 (old suit no. 19/04) titled as Smt. Renu Vij Versus Shri Jai Prakash and another, which is a suit for Permanent Injunction; suit bearing no. 245/12 (old suit no. 20/04) titled as Shri Jai Prakash Versus Smt. Renu Vij and another, which is a suit for Declaration, possession, permanent injunction and for recovery of damages; and a suit bearing no. 244/12 (old suit no. 155/04) titled as Smt. Renu Vij Versus Sh. Jai Prakash and others, which is a suit for Declaration, settingaside of the sale deed dated 10.02.1998 and for Permanent Injunction. All the above said three suits are revolving around the same controversy, based on the same factual position and have been clubbed together vide orders dated 12.12.2005.
2. Now, first coming to the factual matrix as contained in suit number 246/12, which is a suit for Permanent Injunction, the plaintiff Smt. Renu Vij has claimed herself to be the owner and the landlady of property bearing no. 355, Gali No. 2, Saraswati Bhandar, Gandhi Nagar, Delhi more specifically shown in red colour in the site plan annexed with the plaint. It has been further stated that the said property has been constructed on an area measuring 100 sq. yards which is a four storey building. It has been further stated that the said property was purchased by the plaintiff Smt. Renu Vij from her husband Sh. Kishan Lal on the basis of Agreement to Sell, Receipt and Will dated 01.10.1992. It has been further stated that the said Sh. Kishan Lal had purchased the suit property from Sh. Amrit Lal on the basis of the Agreement to Sell and Receipt, etc., all dated 12.07.1978. It has been further stated that Shri Kishan Lal, the husband of the plaintiff expired on 08.10.1992. It has been further stated that two electricity meters have been installed in the said property by the then Delhi Vidyut Board, one in the name of Late Shri Krishan Lal and the other in the name of the plaintiff. It has been further stated that the electricity bills are being paid by the tenants occupying the said property proportionately according to their shares. It has been further stated that there are five tenants in the entire building out of whom, one is Shri Hardwari Lal, who is a tenant in respect of the ground floor at a monthly rental of Rs. 816/, the other Shri Daljit Bhatia, who is also a tenant in respect of the part of the ground floor of the said property at a monthly rental of Rs. 550/, Shri Sunil Kumar is the tenant under the plaintiff in respect of the entire first floor and one room at the second floor at a monthly rental of Rs. 2700/, the fourth tenant is Shri Kaushik Bhatt, who is a tenant in respect of the part of the second floor of the said property under the plaintiff at a monthly rental of Rs. 2500/ and Shri Vinod Bedi is the fifth tenant in respect of the part of the property at the second floor and the third floor as well under the plaintiff at a monthly rental of Rs. 2,800/. It has been further stated that the plaintiff is in possession of the part of the property located at the third floor as shown at points X1 and X2 in the site plan annexed with the plaint. It has been further stated that the plaintiff has been receiving the rents from the tenants and she is the landlady for all the purposes of the said property. It has been further stated that the plaintiff is in possession of the part of the building as shown at points X1 and X2 comprising of one room and open space at the third floor of the said property where the plaintiff has kept her bed, one almirah and other belongings. It has been further stated that Shri Amrit Lal had sold the property in question to late Shri Kishan Lal who constructed the four storey building in piece meal on the plot measuring 100 sq. yards. It has been further stated that Shri Kishan Lal constructed the third floor portions of the said property in the year 19841985 out of the sale proceeds received by him from selling his own house bearing no. 295, Gali No. 3, Gandhi Nagar, Delhi. It has been further stated that Late Shri Krishan Lal also executed a Will dated 01.10.1992 in favour of the plaintiff whereby bequeathing the said property in favour of the plaintiff. The plaintiff has alleged that on 24.02.1998, the defendants along with the some other persons visited the said property and intended to intervene with the lawful possession of the plaintiff. It has been further alleged that the tenants of the plaintiff were also threatened by defendants who asked them not to pay the rent to the plaintiff. It has been further stated that the illegal acts of the defendants were resisted by the plaintiff and the defendants failed to show any title documents of the suit property to the plaintiff when confronted by the plaintiff. It has been further alleged that the defendants intended to dispossess the plaintiff from the portion which is in possession of the plaintiff but the defendants could not succeed in their illegal acts on account of the intervention put by the plaintiff and her tenants. It has been further stated that the plaintiff lodged a report vide DD no. 16 A dated 24.02.1998 with the PS Gandhi Nagar, Delhi. It has been further alleged that the defendants are well acquainted with the police and the defendants in collusion with the police had threatened to interfere into the peaceful and lawful possession of the plaintiff in the suit property in an illegal manner. It has been further stated that on 05.03.1998 the defendants along with three or four persons again visited the suit property and tried to occupy some portion of the suit property in an illegal manner. It has been further stated that the defendants were not allowed to enter into the suit property by the plaintiff and the defendant left the suit property threatening that they would come again. It has been further alleged that on 10.03.1998 as well the defendants along with fivesix persons visited the suit property, tried to dispossess the plaintiff. It has been further stated that the plaintiff along with her daughter Mrs. Neena Juneja approached the police of PS Gandhi Nagar, but of no use. It has been further stated that the actions of the defendant are illegal and unwarranted and hence the present suit.
3. On the basis of the above said allegations as contained in the plaint, the plaintiff has prayed for a decree of Permanent Injunction restraining the defendants and their agents, etc. from interfering into the peaceful enjoyment of the suit property more specifically shown in red colour in the site plan annexed with the plaint by the plaintiff and her tenants. The plaintiff has also prayed that the defendants and their agents etc. be also restrained from dispossessing the plaintiff and her tenants from their respective portions of the suit property as shown in red colour in the site plan annexed with the plaint without following the due process of law. The plaintiff has also prayed for the costs of the suit.
4. Written statement has been filed on record by defendant no. 1 i.e. Jai Prakash stating therein that the present suit is without any cause of action; the plaintiff has no locusstandi to file the present suit because the plaintiff is an unauthorised occupant in respect of one room in the suit property and the defendant no. 1 is the actual owner of the property in question. The defendant no. 1 has taken the stand that the suit property was purchased by him from its earlier owner Shri Amrit Lal by virtue of the registered sale deed dated 10.02.1998 which was duly registered in the office of Sub Registrar on 12.02.1998. It has been further stated that the plaintiff has got no right, title or interest in the suit property and the present suit has been filed by the plaintiff only with a view to grab the entire property of defendant no. 1. On merits, defendant no. 1 has denied that the plaintiff is the owner of the property in question. It has been further stated that Shri Amrit Lal, the previous owner of the suit property has clearly stated in the sale deed dated 10.02.1998 that the property in question was free from all sorts of encumbrances, burden, sale, decree, mortgage, Will, gift, etc. Defendant no. 1 has admitted that the property in question has been constructed on an area of 100 sq. yards but the defendant no. 1 has denied that the property in question was purchased by the plaintiff from Shri Krishan Lal on 01.10.1992. Defendant no. 1 has also denied that Shri Krishan Lal had purchased the said property from Shri Amrit Lal on 12.07.1978. It has been further stated that mere agreement to sell cannot confer the ownership of the suit property on the plaintiff. Defendant no. 1 has alleged that the plaintiff, after seeing the documents of defendant no. 1, has forged and fabricated the documents and filed the present suit on the basis of forged and fabricated documents. Defendant no. 1 has admitted that Late Shri Kishan Lal was husband of the plaintiff, who expired on 08.10.1992. It has been further stated by defendant no. 1 that by merely having the electricity meters in the name of the plaintiff or her husband the plaintiff cannot become the owner of the suit property. It has been further stated that there are several tenants in the suit property, who are liable to pay the rent to defendant no. 1, but the plaintiff malafidely has not been allowing the tenants to pay the rent to defendant no. 1. It has been further stated that there are five tenants in the suit property and the plaintiff is in illegal occupation of one room at the third floor, who is liable to vacate and handover the possession of the said room to defendant no. 1. It has been further stated that a separate suit for possession is being filed by defendant no. 1 against the plaintiff. It has been further stated that the plaintiff is residing at Pitampura, New Delhi and the room in the suit property has been unauthorisedly kept by the plaintiff under her lock as the plaintiff has come to know that the defendant no. 1 is the actual owner of the property in question. Defendant no. 1 has denied that the suit property was constructed by late Shri Krishan Lal. The execution of the Will dated 01.10.1992 by Late Shri Krishan Lal in favour of the plaintiff in respect of the suit property has also been denied by defendant no. 1. Defendant no. 1 has stated that in order to become the owner of an immovable property, a document must be registered. The defendant no. 1 has denied that on 24.02.1998, on 05.03.1998 and on 10.03.1998, the plaintiff was threatened of forcible dispossession by the defendants. Rest of the contents of the plaint have been denied and it has been prayed that the suit filed by the plaintiff be dismissed with exemplary costs.
5. Written statement has also been filed on record by the defendant no. 2 Shri Kaloo stating therein that the present suit is bad for misjoinder of defendant no. 2, the present suit is without any cause of action against him. It has been further stated that the defendant no. 2 is absolutely a stranger and he has no right, title or interest in the suit property. It has been further stated that defendant no. 2 is not interested in the suit property at all and he has never gone to the suit property. Rest of the contents of the plaint have been denied and it has been prayed that the suit filed by the plaintiff be dismissed with exemplary costs.
6. Replication to the written statement of the defendant no. 1 has been filed by the plaintiff denying the contents of the written statement filed by defendant no. 1 and reiterating and reaffirming the stand as taken by the plaintiff in the plaint. In the replication, the plaintiff has stated that defendant no. 1 cannot purchase the suit property from Shri Amrit Lal vide alleged sale deed dated 10.02.1998 because the said sale deed has been wrongly executed by the said Shri Amrit Lal in favour of defendant no. 1, which is liable to be cancelled. It has been further stated by the plaintiff that the said Shri Amrit Lal had already sold the suit property to Shri Krishan Lal on 12.07.1978 and as such Shri Amrit Lal has no right to executed the alleged sale deed dated 10.02.1998 in favour of defendant no. 1.
7. Now, coming to the narration of the facts as contained in suit no. 245/12, which is a suit for Declaration, Possession, Permanent Injunction and for recovery of damages filed by Shri Jai Prakash against Smt. Renu Vij and Shri Amrit Lal; Shri Jai Prakash, who is the defendant no. 1 in suit no. 246/12 has reiterated his stand in the plaint in the present suit as taken by him in the written statement filed in suit no. 246/12. In the present suit, the plaintiff Shri Jai Prakash has stated that defendant no. 2 Shri Amrit Lal was the owner of property no. 355, bearing plot no. 22 measuring 200 sq. yards situated in the abadi of Saraswati Bhandar, Gali No. 2, Gandhi Nagar in the area of village Seelampur Illaqa Shahadara, Delhi by virtue of the registered sale deed dated 25.07.1970. It has been further stated that Shri Amrit Lal sold 100 sq. yards out of the said property to the other person, which is adjacent to the property of the plaintiff and the plaintiff purchased 100 sq. yards out of the said land together with the super structure by virtue of the registered sale deed dated 10.02.1998 from said Shri Amrit Lal. The plaintiff has further stated that he has got the said property mutated in his name in the records of the MCD. The plaintiff has reiterated his stand that the defendant no. 1 Smt. Renu Vij is an unauthorised occupant in respect of the one room at the third floor portion of the said property. The plaintiff has further stated that the defendant no. 1, in order to harass the plaintiff has already instituted a suit for Permanent Injunction. It has been further stated that the defendant no. 1 i.e. Smt. Renu Vij has got no right, title or interest in the said property and the documents are the forged and fabricated documents. It has been further stated that Smt. Renu Vis, defendant no. 1, is liable to pay Rs. 3,000/ per month as damages to the plaintiff for illegal and unauthorised use and occupation. It has been further stated that defendant no. 2 Shri Amrit Lal, who is the original owner has never sold the property to Shri Krishan Lal, the husband of defendant no. 1 and as such, Shri Krishan Lal has no right to execute any document in favour of defendant no. 1 and as such the document dated 12.07.1978 and the documents dated 01.10.1992 are liable to be declared as null and void. The plaintiff has alleged that the defendant no. 1 is trying to sell the suit property illegally and unlawfully. The plaintiff, in the present suit, has claimed that the defendant no. 2 has been impleaded as a proforma defendant.
8. On the basis of the above said allegations as contained in the plaint in suit no. 245/12, the plaintiff Shri Jai Prakash has prayed for a decree of possession in respect of the property in possession of defendant no. 1 as shown in red colour in the site plan annexed with the plaint.
9. The plaintiff has also prayed for a decree for recovery of Rs. 6,000/ as damages for the month of March and April, 1998 and has also prayed for the future damages @ Rs.3,000/ per month so long as defendant no. 1 does not handover the peaceful and vacant possession of the property in question to the plaintiff. The plaintiff has also prayed that the documents dated 12.02.1978 and documents dated 01.10.1992 be declared as illegal, null,void and cancelled. The plaintiff has also prayed for a decree of Permanent Injunction restraining the defendants from receiving the rent from the tenants and from restraining the tenants from making any payment of rent directly to the plaintiff. The plaintiff has also prayed for a decree of Permanent Injunction restraining the defendants from entering into an agreement to sell, alienating, creating any third party interest or parting with the possession of the room in possession of defendant no. 1 to any other person except the plaintiff. The plaintiff has also prayed for costs of the suit.
10. Smt. Renu Vij, who is the defendant in the present suit bearing no. 245/12 has filed the written statement reiterating her stand as taken by her in the plaint in suit no. 246/12, in which she is the plaintiff. The defendant no. 1 in the present suit has stated that the present suit has been filed by the plaintiff as a counter blast to the suit bearing number 246/12. Defendant no. 1 has stated that she is the lawful owner of the suit property and has been in possession of the same since 12.07.1978. Defendant no. 1 has alleged that the plaintiff and defendant no. 2 have colluded with each other and in furtherance of their criminal conspiracy have created the sale deed dated 10.02.1998 illegally with a view to grab the property of defendant no. 1. Defendant no. 1 has further stated that the present suit has not been valued properly and the present suit is not maintainable for nonimpleadment of the tenants who are the necessary parties. Defendant no. 1 has alleged that the plaintiff has not disclosed the date of ownership of said Shri Amrit Lal intentionally and willfully. It has been further stated that the plaintiff has failed to specify the name of the other persons to whom the 100 sq. yards was sold by Shri Amrit Lal. Defendant no. 1 has denied that the plaintiff purchased 100 sq. yards by virtue of the sale deed dated 10.02.1998. Defendant no. 1 has reiterated her stand that the defendant no. 2 had no right to sell the property on 10.02.1998 after having sold the same to her husband Shri Krishan Lal on 12.07.1978. It has been further stated that the alleged mutation in the name of the plaintiff in the records of MCD is illegal and liable to be cancelled. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with heavy costs.
11. Shri Amrit Lal, defendant no. 2, in the present suit bearing no. 245/12 has also filed the written statement admitting therein that he was the owner of the plot bearing no. 22 measuring 200 sq. yards situated in the Abadi of Saraswati Bhandar, Gali No. 2, Gandhi Nagar, Delhi. Defendant no. 2 has admitted the purchasing of the said property by virtue of the sale deed dated 25.07.1970. The defendant no. 2 has admitted that he has sold the suit property to the plaintiff by virtue of the sale deed registered in the office of Sub Regisrar on 12.02.1998. Defendant no. 2 has stated that he had never sold any property to Shri Krishan Lal, the husband of defendant no. 1 or to the defendant no. 1 at any point of time. It has been further stated by defendant no. 2 that defendant no. 1 Smt. Renu Vij is an illegal occupant in the suit property without any right, title or interest therein. Defendant no. 2 has further stated that after selling the suit property to the plaintiff, he is left with no right, title or interest in the suit property. Defendant no. 2 has denied the execution of any document in favour of Shri Krishan Lal or in favour of Smt. Renu Vij. Defendant no. 2 has further stated that he has no objection if the suit of the plaintiff is decree in accordance with the prayer clause.
12. The plaintiff in the present suit bearing no. 245/12 has filed the replication to the written statement of defendant no. 1 denying the contents of the written statement of defendant no. 1, reiterating, reaffirming the stand as taken by the plaintiff in the plaint in the present suit bearing no. 245/12.
13. Now, coming to suit no. 244/12 titled as Smt. Renu Vij Versus Shri Jai Prakash and others, which is a suit for declaration settingaside the sale deed dated 10.02.1998 and for Permanent Injunction, the plaintiff Smt. Renu Vij in the plaint has reiterated her stand as taken by her in the plaint in suit no. 246/12. In the present suit, the plaintiff Smt. Renu Vij has also impleaded the tenants in the suit property as the defendants in the array of the defendants. The plaintiff in the present suit has stated that in the suit bearing no. 246/12 titled as Smt. Renu Vij Versus Shri Jai Prakash (old suit no. 106/1998), the court of Shri Rajender Kumar, the then Ld. Civil Judge, Delhi has allowed the injunction application under Order 39 Rules 1 & 2 of the CPC and the defendants in that suit have been restrained from dispossessing the plaintiff, the suit property till the disposal of that suit. It has been further stated that the plaintiffs also lodged a criminal complaint dated 11.06.1998 in PS Gandhi Nagar on the ground that the defendants no. 1 & 2 i.e. Shri Jai Prakash and Shri Amrit Lal committed criminal conspiracy with a intention to cheat and deprive the plaintiff from the said property and ultimately FIR no. 80/2000 under Sections 420/506/34 of the IPC with PS Gandhi Nagar was registered on 11.04.2000 against defendant no. 1 and defendant no. 2 in which defendant no. 1 & 2 are facing criminal trial for offence under Section 420/506 of the IPC. The plaintiff in the present suit has given the detailed references of the previous two suits i.e. suit bearing number 246/12 and suit bearing no. 245/12 (the details of which have been narrated herein above). The plaintiff further stated that the defendants no. 1 & 2 i.e. Shri Jai Prakash and Shri Amrit Lal have threatened the tenants who have been added as defendant no. 3 to 7 in the present suit and have tried to persuade them to pay the rent to the defendant no. 1 but defendants no. 3 to 7 refused. It has been further stated that the tenants i.e. defendant no. 3 to 7 never admitted the defendant no. 1 to be their landlord/owner of the said property. It has been further stated that the defendant no. 1 served legal notices of demand of rent upon defendants no. 3 to 7 on the basis of the alleged false sale deed dated 10.02.1998 and have also filed the eviction petitions against the tenants which are pending trial before the court of Ld. ARC, Karkardooma Courts, Delhi. The plaintiff has given the details of five eviction petitions in para no. 13 of the plaint. It has been further stated that the tenants i.e. the defendant in the present suit filed their written statements in the said eviction petitions categorically stating that there was no relationship of landlord and tenant in between the defendant no. 1 and them. It has been further stated that the tenants admitted the plaintiff Smt. Renu Vij, the plaintiff in the present suit to be the owner/landlady. It has been further stated that the plaintiff herein i.e. Smt. Renu Vij was permitted to be impleaded as necessary party in the eviction petition vide order dated 29.04.1999 on an application under Order 1 Rule 10 of the CPC by the Court of Ld. ARC. It has been further stated that Shri Jai Prakash i.e. defendant no. 1 herein by an appeal against the said order dated 29.04.1999 which was allowed vide orders dated 29.07.2000. It has been further stated that the plaintiff filed herein CM (Main) No. 538/2000 before the Hon'ble High Court of Delhi challenging the orders dated 19.07.2000 and the Hon'ble High Court of Delhi was pleased to stay the proceedings of the eviction petitions pending before the Court of the Ld. ARC. The plaintiff in the present suit has alleged that the act of the sale in respect of the suit property amounts to fraud played upon the plaintiff as the defendant no. 2 was not having any right to sell the said property to defendant no. 1 at the time of the execution of the sale deed dated 10.02.1998. It has been further alleged that the sale deed dated 10.02.1998 has been procured in an illegal manner and as such, the said sale deed is liable to be cancelled and declared as null and void.
14. On the basis of the above said allegations as contained in plaint in suit no. 244/12, the plaintiff Smt. Renu Vij has prayed for a decree of declaration to the effect that she be declared as the lawful owner, landlady and in possession of the property as shown in red colour in the site plan annexed with the plaint. The plaintiff has also prayed for a decree of declaration declaring that the alleged sale deed dated 10.02.1998 is illegal, null and void abinitio, cannot be acted upon the plaintiff, is not binding upon the plaintiff and her legal heirs included defendants no. 3 to 7 or the MCD. The plaintiff has further prayed that the defendant no. 1 is not entitled to claim any right in respect of the said property on the basis of the alleged false sale deed dated 10.02.1998 and all the actions taken by Shri Jai Prakash i.e. defendant no. 1 on the basis of the said sale deed cannot continue or proceed further and are liable to be declared as null and void. The plaintiff has further prayed for a decree of Permanent Injunction restraining defendant no. 1 and his agents etc. from transferring, alienating, creating any charge in the said property as shown in red colour in the site plan annexed with the plaint. The plaintiff has further prayed that the defendant no. 1 and his agents be also restrained from recovering the rent from the tenants i.e. from defendants no. 3 to 7 on the basis of said sale deed. The plaintiff has also prayed for the costs of the suit.
15. Shri Jai Prakash who is the defendant no. 1 in the present suit bearing no. 244/12 has filed a written statement reiterating his stand as taken by him in the previous two suits bearing no. 246/12 and 245/12. Shri Jai Prakash in the written statement in the present suit has stated that the present suit is liable to be stayed under Section 10 of the CPC. It has been further stated that the present suit has not been valued properly. Defendant no. 1 has denied that Shri Krishan Lal had delivered the possession of the suit property. Defendant no. 1 has reiterated his stand that he is the lawful owner of the suit property. The filing of the eviction petitions, passing of the various orders as stated in the plaint has not been denied by defendant no. 1. Defendant no. 1 has further stated that the plaintiff in order to harass him malafidely and in collusion with the local police has lodged the complaint against him. It has been further stated that the Hon'ble High Court after hearing the arguments has given the anticipatory bail to the defendant no. 1. It has been further stated that the said criminal case is false and frivolous and the plaintiff has got the same registered in collusion with the local police. Rest of the contents of the plaint have been denied and it has been prayed that suit of the plaintiff be dismissed with costs.
16. Defendant no. 2 i.e. Shri Amrit Lal has also filed the written statement in the present suit reiterating his stand as has been taken by him in suit bearing no. 245/12 in which he has been arrayed as defendant no. 2. Additionally, in the present written statement, the defendant no. 2 has stated that his father was having close relations with late Shri Krishan Lal. It has been further stated that late Shri Krishan Lal was not financially well of. It has been further stated that Shri Ram Lal the father of the defendant no. 2 was a rich person and late Shri Krishan Lal offered to work for him. It has been further stated that a partnership firm was started namely Dimple PVC Wire for manufacturing of PVC wires and a capital of Rs. 20,000/ was shown to be invested by Shri Ram Lal and a sum of Rs. 7,000/ was shown to be invested by Shri Krishan Lal. It has been further stated that with a capital of Rs. 27,000/ the business was started on 15.01.1976 on execution of a partnership deed. It has been further stated that Shri Ram Lal was semiliterate and late Shri Krishan Lal used to keep the accounts and he also used to bring the sale proceeds. It has been further stated that Shri Ram Lal again invested a sum of Rs. 25,000/ in the business with the assurance that Shri Krishan Lal would allow Shri Ram Lal to withdraw the surplus money invested by him in the firm. It has been further stated that because of sudden illness, Shri Ram Lal remained bed ridden and could not attend the working of the factory. It has been further stated that thereafter Shri Ram Lal became able to move out and when he went to the house of Shri Krishan Lal, he found the factory to be locked. It has been further stated that Shri Krishan Lal avoided to meet Shri Ram Lal. It has been further stated that later on when Shri Ram Lal confronted Shri Krishan Lal about the closure of the factory and about the accounts, no satisfactory reply was given. It has been further stated that all the documents, the accounts and the partnership deed were taken away by Late Shri Krishan Lal and he refused to handover the same. It has been further stated that the property in question was let out to Shri Krishan Lal and he had no accommodation at that time. It has been further stated that the said property was a two storey building when Shri Krishan Lal was allowed to run the wire factory. It has been further stated that thereafter taking advantage of the illness of Shri Ram Lal, Late Shri Krishan Lal fabricated the documents and obtained electricity connection in his name. It has been further stated that the defendant Shri Amrit Lal came to know in the year 1997 about the present property and he was astonished to see that the entire property was being occupied and the plaintiff was collecting the rent from the tenants. It has been further stated that the plaintiff represented himself to be the owner of the property. It has been further stated that the replying defendant was suffering from many diseases and he was also financially handicapped. It has been further stated that the defendant no. 1 approached the replying defendant to sell the said property for an amount of Rs. 1,20,000/ in these circumstances. It has been further stated that the defendant no. 2 had no option but to sell the property to defendant no. 1, in these circumstances. Defendant no. 2 has further stated that the plaintiff has managed to falsely implicated in the false FIR. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
17. Written statement has also been filed on record by defendant no. 3 to 6 stating therein that as per the information of the answering defendants, the plaintiff Smt. Renu Vij has expired on 06.11.2000 leaving behind the three daughters namely Ms. Neena, Ms. Seema and Ms. Dimple as her three legal heirs. It has been further stated that after the death of the plaintiff Ms. Neena is collecting the rent from the answering defendants on her behalf as well as on behalf of her two sisters. Defendants no. 3 to 6 have not denied the construction of the property by Late Shri Krishan Lal. Defendant no. 3 has stated that he was inducted as a tenant by late Shri Krishan Lal, who was receiving the rent from him and after the death of Shri Krishan Lal, the plaintiff started collecting the rent from defendant no. 3. Similarly, defendant no. 4 has stated that he was inducted as a tenant by Late Shri Krishan Lal who was receiving the rent from him and after his death, the plaintiff started collecting the rent from him. Defendant no. 5 has stated that he was inducted as a tenant in the premises in question by the plaintiff in the year 1997. Defendant no. 6 has stated that he was inducted as a tenant by Late Shri Krishan Lal in the property in question. Defendants no. 3 to 6 have admitted the case of the plaintiff in its entirety and have prayed that if the suit of the plaintiff is decreed, they have no objection.
18. Separate replications to the written statement of defendant no. 1 and defendant no. 2 have been filed on behalf of the plaintiff reaffirming the stand as taken by the plaintiff in the plaint and denying the contentions of the written statement.
19. Perusal of the order sheet dated 12.12.2005 reveals that all the above said three suits were consolidated by the Ld. Predecessor for the purposes of trial and suit no. 244/12 (old suit no. 155/04) was directed to be treated as the main suit. Vide orders dated 16.02.2009 my Ld. Predecessor observed that for the sake of convenience, the LRs of Late Smt. Renu Vij will be referred as plaintiff, Shri Jai Prakash will be referred as defendant no. 1, Shri Amrit Lal will be referred as defendant no. 2. Vide orders dated 16.02.2009, the following consolidated issues were framed by my Ld. Predecessor in suit no. 244/12 (old suit no. 155/04) :
1. Whether the suit no. 155/04 is not valued properly for the purposes of court fees and jurisdiction ? OPD1
2. Whether the plaintiff in suit no. 155/04 is entitled for the relief of declaration i.e. to declare the sale deed dated 10.02.1998 executed in favour of defendant no. 1 by defendant no. 2 as null and void? OPP
3. Whether the plaintiff in suit no. 155/04 and 19/04 is entitled for the relief of Permanent Injunction to restrain Shri Jai Prakash, Shri Kalu and their representatives/agents from interfering with the possession of the plaintiff and the tenants in respect of the suit property? OPP
4. Whether Shri Jai Prakash has not valued his suit ( i.e. Suit no. 20/04) properly for the purposes of court fees and jurisdiction? OPP
5. Whether the suit filed by Shri Jai Prakash i.e. Suit no. 20/04 is bad for nonjoinder of the tenants as defendants? If yes, its effect? OPP
6. Whether Shri Jai Prakash i.e. plaintiff in suit no. 20/04 is entitled to get declare the documents dated 12.07.1978 executed in favour of Late Shri Krishan Lal and the documents dated 01.10.1992 executed in favour of Smt. Renu Vij null and void? OPD1
7. Whether Shri Jai Prakash is entitled for the relief of possession as prayed by him in suit no. 20/04? OPD1
8. Whether Shri Jai Prakash is entitled for damages as claimed by him in Suit no.
20/04? If yes, at what rate, for which period and against which of the defendants? OPD1
9. Whether Shri Jai Prakash is entitled to restrain the LRs of Smt. Renu Vij from receiving the rent from the tenants and from creating any third party interest in respect of the suit property? OPD1
10.Relief.
EVIDENCE
20. In suit no. 244/12 (old suit no. 155/04), my Ld. Predecessor vide orders dated 02.09.2009 observed that the LRs of the deceased plaintiff were not appearing for their crossexamination and as such the affidavit filed by Smt. Neena Juneja was not to be read in evidence. Vide said orders dated 02.09.2009, my Ld. Predecessor closed the evidence on behalf of the plaintiff and the matter was fixed for evidence on behalf of defendant no. 1, thereafter.
21. The defendant no. 1 Shri Jai Prakash has examined his attorney Shri Lallu Gupta as DW1 and in his evidence by way of affidavit, DW1 has reiterated and reaffirmed the stand as taken by the defendant no. 1 in his respective pleadings. The original GPA executed by Shri Jai Prakash in favour of DW1 is Ex. DW1/1. Certified copy of the sale deed dated 10.02.1998 executed by Shri Amrit Lal in favour of Shri Jai Prakash is Ex. DW1/2. The site plan of the suit property is Ex. DW1/3. Certified copy of the sale deed dated 24.07.1970 executed by Shri Jeewan Singh and Shri Trilok Chand in favour of Shri Amrit Lal is Ex. DW1/4. Certified copies of the legal notice dated 14.05.1998 is Ex. DW1/5 (colly), certified copies of the AD card and the postal Receipt is Ex. DW1/6 (colly). Photocopy of the mutation letter issued by the MCD in favour of defendant no. 1, Shri Jai Prakash is Ex. DW1/7, photocopy of the house tax receipt in favour of defendant no. 1 issued by the MCD is Ex. DW1/8 (colly). Photocopy of the agreement to sell dated 12.07.1978 in favour of Shri Krishan Lal by Shri Amrit Lal filed by the plaintiff Smt. Renu Vij in suit no. 246/12 is Ex. DW1/9. Photocopy of the Receipt for an amount of Rs. 12,000/ dated 12.07.1978 in favour of Shri Krishan Lal by Shri Amrit Lal filed by the plaintiff Smt. Renu Vij in suit no. 246/12 is Ex. DW1/10. Photocopy of the GPA dated 12.07.1978 in favour of Shri Krishan Lal by Shri Amrit Lal filed by the plaintiff Smt. Renu Vij in suit no. 246/12 is Ex. DW1/11. Photocopy of the agreement to sell dated 01.10.1992 in favour of Smt. Renu Vij by her husband Shri Krishan Lal in suit no. 246/12 is Ex. DW1/12. Photocopy of the Receipt for an amount of Rs. 1,25,000/ dated 01.10.1992 in favour of Smt. Renu Vij by her husband Shri Krishan Lal in suit no. 246/12 is Ex. DW1/13. Photocopy of the Will dated 01.10.1992 in favour of Smt. Renu Vij by her husband Shri Krishan Lal in suit no. 246/12 is Ex. DW1/14. Copy of the original DD no. 44 B dated 03.11.2006 is Ex. DW1/15.
22. Perusal of the ordersheet dated 07.04.2010 passed by Ld. Predecessor reveals that the right to crossexamine DW1 was closed as none was present on behalf of the LRs of Smt. Renu Vij. As such, the testimony of DW1 remains uncrossexamined.
23. The defendant no. 1 Shri Jai Prakash has further examined Shri Mahesh Kumar, UDC from the office of Sub Registrar, Geeta Colony, Delhi as DW2 and this witness brought in the Court the sale deed dated 10.02.1998 executed by Shri Amrit Lal in favour of Shri Jai Prakash. Certified copy of the said sale deed was exhibited as Ex. DW2/1 (the said document was already Ex. DW1/2).
24. This witness i.e. DW2 was crossexamined by Shri Ashok Mahajan, Ld. Counsel for defendant no. 4 and 5 in suit no. 155/06 (suit no. 244/12). In the crossexamination, DW2 has stated that he cannot identify the signatures of the official who has certified the copy of the sale deed which is Ex. DW2/1. DW2 further states that he has no personal knowledge about the said document Ex. DW2/1.
25. This witness i.e. DW2 was also not crossexamined by the LRs of Smt. Renu Vij because none was present on their behalf on 07.04.2010 and the right to crossexamine the said witness was closed by Ld. Predecessor on 07.04.2010.
26. The defendant no. l has further examined Shri Parmod Kumar as DW4 and in his evidence by way of affidavit, this witness has stated that he is a property dealer and he has seen the suit property. DW4 has further stated that if one room at the third floor for the residential purposes is let out, the same can fetch Rs.5500/ per month as rent. DW4 has further stated that even in the year 1998, the rent of one room could have fetched Rs. 3000/ Rs.3050/ per month as rent.
27. This witness has also not been cross examined by the plaintiff.
28. Defendant no. 4 Shri Sunil Kumar in suit no. 244/12 (old suit no. 155/04) has examined himself as D4W1. This witness in his evidence by way of affidavit has reiterated and reaffirmed his stand as taken by the said witness in the written statement filed on record by defendant no. 3 to 6 jointly in suit no. 244/12. This witness has stated in his affidavit that he was inducted as a tenant in the tenanted premises by one Shri Krishan Lal somewhere in the year 1984 and the landlord Shri Krishan Lal used to receive the rent from him but after the death of Shri Krishan Lal in October, 1992, his widow namely Smt. Renu Vij started collecting the rent from him.
29. This witness was crossexamined by Shri Sanjeev Goel Ld. Counsel for the LRs of the plaintiff Smt. Renu Vij and in his crossexamination D4W1 admits it to be correct that a legal notice dated 16.06.1998 was sent by Smt. Renu Vij through her advocate which was received by her. D4W1 further states in the crossexamination that he had not replied the said legal notice. D4W1 admits it to be correct in the crossexamination that repairs of the tenanted premises was being done from time to time by the plaintiff Smt. Renu Vij and thereafter by her LRs. D4W1 further states in crossexamination that nobody else apart from Renu Vij and her LRs have carried out any repairs in the tenanted premises. D4W1 further states that he had taken the tenanted premises on rent from late Shri Krishan Lal, husband of Late Smt. Renu Vij. D4W1 admits it to be correct that presently he was paying rent to the daughter of Smt. Renu Vij and earlier he was paying rent to Smt. Renu Vij in respect of the tenanted premises.
30. Defendant no. 5 Shri Vinod Bedi in suit no. 244/12 has examined himself as D5W1 and in his evidence by way of affidavit, this witness has also reiterated and reaffirmed his stand as taken by the defendants no. 3 to 6 in the written statement filed on record in suit no. 244/12. This witness in his affidavit has stated that he was inducted as a tenant in the tenanted premises by the original plaintiff Smt. Renu Vij in the year 1997 and he had been paying the rent to Smt. Renu Vij during her life time. This witness further states in his affidavit that after the death of Smt. Renu Vij, her daughter Ms. Neena has been collecting the rent from him.
31. D5W1 has been crossexamined by Shri Sanjeev Goel, Ld. Counsel for all the LRs of deceased plaintiff Smt. Renu Vij and in his crossexamination, this witness states that he had taken the suit premises on rent from Smt. Renu Vij approximately in the year 1997. D5W1 further states that in the crossexamination that he has been paying the rent to Smt. Renu Vij and after her death he has been paying the rent to her daughters namely Ms. Neena, Ms. Seema and Ms. Dimple. D5W1 further states in the cross examination that earlier the suit property was maintained by Smt. Renu Vij and by her LRs after her death. D5W1 further states in the crossexamination that he had received the legal notice dated 16.06.1998 from Smt. Renu Vij through her advocate. D5W1 further states that he can produce the rent receipts.
32. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff i.e. the LRs of the deceased Smt. Renu Vij and the defendant no.1 Shri Jai Prakash have filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
33. Shri Ashok Mahajan, Ld. Counsel for defendants no. 4 and 5 in suit no. 244/12 has addressed the arguments orally. I have given my thoughtful consideration to the submissions advanced by Shri Ashok Mahajan Ld. Counsel for the defendants no. 4 and 5 as well.
34. It is pertinent to mention here that vide orders dated 16.02.2009, whereby the consolidated issues were framed by my Ld. Predecessor had specifically directed that the legal heirs of the deceased Smt. Renu Vij will be referred to as the plaintiffs, Shri Jai Prakash will be referred to as defendant no.1 and Shri Amrit Lal will be referred to as defendant no.2 for the sake of convenience.
35. My issuewise findings on the abovesaid issues are as under:
Issues No. 2, 3, 6, 7, 8 and 9.
36. All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the suits filed on record either by Smt. Renu Vij or by Shri Jai Prakash. Issue no. 2 and 3 relate to the prayer clause of suit no. 244/12 (old suit no. 155/04) and issues no. 6, 7, 8 and 9 relate to the prayer clause of the suit bearing no. 245/12 (old suit no. 20/04) instituted by Shri Jai Prakash. As stated by me herein above that all the abovesaid three suits have consolidated by my Ld. Predecessor vide orders dated 12.12.2005 and suit no. 244/12 (old suit no. 155/04) was directed to be pleaded as the main case.
37. The factual controversy and the evidence led by the parties, has already been narrated herein above.
38. Before discussing the matter on merits and before giving any findings, I deem it appropriate to discuss in brief the written final arguments filed on record by both the main contesting parties i.e. by Smt. Renu Vij and by Shri Jai Prakash.
39. In the written final arguments filed on record by the plaintiff i.e. the LRs of the deceased Smt. Renu Vij, it has been argued that Shri Krishan Lal, the deceased husband of the deceased plaintiff Smt. Renu Vij took over the possession of the suit property constructed upto four storeys and inducted various tenants from time to time. It has been further argued that Shri Amrit Lal, the original owner in the written statement filed on record has concocted a false story of the partnership which was allegedly executed in between Shri Krishan Lal and the father of Shri Amrit Lal. It has been further argued that nothing has been placed on record by Shri Amrit Lal to prove the existence of the said partnership but the defendants have categorically admitted the taking over of the possession by late Shri Krishan Lal. On the abovesaid premise, it has been argued that the plaintiff has become the owner of the suit property by way of adverse possession. The plaintiff has further argued that after having executed the title documents dated 12.07.1978, in favour of Shri Krishan Lal, Shri Amrit Lal i.e. the defendant no.2 was left with no right, title or interest in the suit property and he was not competent to execute the sale deed dated 10.02.1998 in favour of defendant no.1. It has been further argued that the sale deed in favour of defendant no.1 was executed by Shri Amrit Lal at a throwaway price in order to grab the suit property. It has been further argued by the plaintiff that the deceased plaintiff Renu Vij left behind only three daughters as her LRs and as the suit property was not fetching a good income, the LRs of Smt. Renu Vij found themselves unable to fight against the mischievous plan of Shri Jai Prakash. It has been further argued that defendant no.1 i.e. Shri Jai Prakash is having ample money but he has no time to come to the court to depose in this matter. It has been further argued that Shri Jai Prakash engaged a person namely Shri Lallu Gupta to lookafter the litigations initiated by him. It has been further argued that Shri Jai Prakash may be successful in his attempt to grab the suit property but this court will look into the matter carefully and the attempt of Shri Jai Prakash fail, as truth always prevails. It has been further argued that no oral evidence could be produced on behalf of LRs of Smt. Renu Vij but that does not mean that they will loose the suit property and Shri Jai Prakash will gain it. It has been further argued that the power of attorney holder Shri Lallu Gupta was not aware of the matter and he was not competent to depose and as such, this is a case of no evidence on behalf of both the parties. It has been further argued that the sale deed dated 10.02.1998, does not mention the proper description of the suit property and the boundaries are also not fully described. It has been further argued that a vague description has been mentioned in the sale deed which goes to show that the parties to the sale deed had no knowledge of the property in question. It has been further argued that even the description of the tenants has not been given in the sale deed. It has been further argued that Shri Amrit Lal i.e. defendant no.2 has put forward a story that Shri Krishan Lal had taken the property in question on rent but even the rent for the premises on 15.01.1976 has not been mentioned. It has been further argued that it has also not been mentioned as to whether any lease deed was executed or not. It has been further argued that the proper boundaries of the suit property have been disclosed in the agreement to sell executed on 12.07.1978 but the same have not been properly described in the sale deed dated 10.02.1998. It has been further argued that in the written statement filed on record by defendant no.2, it has been admitted that Smt. Renu Vij inducted the tenants in the property and collected the rent from these tenants. It has been further argued that the admissions by Shri Amrit Lal i.e. defendant no.2 clearly shows that late Shri Krishan Lal and Smt. Renu Vij were in actual physical possession of the suit property and there were certain documents in their favour. It has been further argued that it was Smt. Renu Vij who got lodged FIR bearing no. 80/2000 u/s 420/506/34 IPC P.S. Gandhi Nagar, against Shri Jai Prakash and Shri Amrit Lal. It has been further argued that the averments made in the sale deed are false and fabricated.
40. Whereas in the written final arguments filed on record by the Ld. Counsel for the defendant no.1, it has been argued that despite grant of repeated opportunities, Smt. Renu Vij or his legal heirs failed to lead any evidence and thats why it was ordered by Ld. Predecessor of this court vide orders 02.09.2009 that the earlier affidavit filed by Smt. Renu Vij was taken off the record. It has been further argued that the evidence of the plaintiff Smt. Renu Vij was closed vide orders dated 02.09.2009. It has been further argued by the defendant no.1 that defendant no.1 led his evidence and examined Shri Lallu Gupta who is the duly constituted attorney of Shri Jai Prakash. It has been further argued that the aforesaid DW1 i.e. Lallu Gupta filed on record his attorney as DW1/1, certified copy of the sale dated 10.02.1998 as Ex. DW1/2, and the certified copy of the sale deed a 24.07.1970 in favour of Shri Amrit Lal as Ex. DW1/4 coupled with other documents. It has been further argued that the defendant no.1 has further examined Shri Mahesh Kumar UDC from the office of the Sub Registrar to prove on record certified copy of the sale deed dated 10.02.1998. It has been further argued that Shri Jai Prakash personally appeared before the court on 12.05.2005 and he confirmed that he had executed a GPA dated 09.10.2000 in favour of Shri Lallu Gupta. It has been further argued that after the closer of the evidence of the plaintiff, after about two years, legal heirs of Smt. Renu Vij moved an application for leading evidence and for cross examination of the witnesses of the defendant but the said application was dismissed vide orders dated 08.11.2011 and as such, the said orders have become final. It has been further argued that Smt. Renu Vij has not filed on record any original of the documents and as such, adverse inference has to be drawn against her. It has been further argued that there is no registered document in favour of the plaintiff and on the basis of the mere Agreement to Sell, the plaintiff cannot become the owner of the suit property. It has been further argued that the defendant no.1 has been able to prove his case by way of cogent and reliable testimony. Ld. Counsel for the defendant no.1 has relied upon the authority titled Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. wherein it has been held as under: "Transfer of Property Act, 1882, S. 54, Registration Act, 1908, S. 17 Transfer of immovable property Sale agreement, general power of attorney and Will do not convey any title nor create any interest in an immovable property Immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance."
41. The abovesaid factual narration of the facts and the evidence led by the parties, reveals in crystal clear and unequivocal terms that the claim of the plaintiff is based upon the documents dated 12.07.1978 which were allegedly executed by Shri Amrit Lal in favour of Shri Krishan Lal and the documents dated 01.10.1992 which were executed by Shri Krishan Lal i.e. the husband of the deceased plaintiff Smt. Renu Vij in her favour. Needless to mention that the said documents are the Agreement to sell, Receipt, Will etc. The claim of the defendant no.1 Shri Jai Prakash is based upon the Sale deed dated 10.02.1998. The vital question to be considered by this court is as to whether the plaintiff i.e. Smt. Renu Vij has been able to prove on record the document dated 01.10.1992 or the documents dated 12.07.1978 or as to whether defendant no.1 has been able to prove the Sale Deed dated 10.02.1998.
42. As stated by me herein above that the case of the plaintiff is a case of no evidence. Vide orders dated 02.09.2009, the evidence of the plaintiff was closed by my Ld. Predecessor and it was also directed that the affidavit of Smt. Neena Juneja (daughter of the deceased plaintiff Renu Vij), filed by the plaintiff shall not be read into evidence. Thereafter, the subsequent application filed by the plaintiff for leading the evidence and for cross examination of witnesses of the defendant was also dismissed by my Ld. Predecessor vide orders dated 08.11.2011. The said orders were not challenged and were not set aside leading to the finality of those orders. DW1 i.e. defendant no.1 in his evidence by way of affidavit has filed on record the photocopies of the said documents dated 01.10.1992 and 12.07.1978 as Ex. DW1/9 to Ex. DW1/14. Even the original documents have not been brought on record by the plaintiff. Whereas on the other hand, the defendant no.1 Shri Jai Prakash examined his attorney Shri Lallu Gupta as DW1 and he placed on record the certified copy of the Sale deed dated 10.02.1998 executed by Shri Amrit Lal in favour of defendant no.1 as Ex. DW1/2, the original GPA executed by Shri Jai Prakash in his favour as Ex. DW1/1, the site plan of the suit property as Ex. DW1/3, the certified copy of the Sale deed dated 24.07.1970 executed by Shri Jeewan Sign and Trilok Chand in favour of Shri Amrit Lal as Ex. DW1/4 coupled with other documents such as the mutation letter issued by the MCD, the house tax receipt in favour of defendant no.1 issued by the MCD etc. The plaintiff has argued that the evidence of the attorney cannot be relied upon. It is true that in the authority cited as Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd., the Hon'ble Supreme Court of India has observed as under: "Civil P.C. (5 of 1908) O. 3, Rr. 1, 2 Power of attorney holder Cannot depose in place and instead of principal."
43. But it has to be seen that in the case in hand, defendant no.1 appeared in the court on 12.05.2005 and he confirmed that he has executed the GPA dated 02.10.2000 in favour of Shri Lalu Gupta. Furthermore, it has to be seen that none of the DWs including DW1, has been cross examined by the plaintiff to show that the facts stated in the affidavit of DW1 were not in his personal knowledge and thats why he was not competent to depose on behalf of the principal i.e. on behalf of Shri Jai Prakash. As such, I do not find any force in the submission of the Ld. Counsel for the plaintiff that the testimony of DW1 cannot be relied upon by this court. Furthermore, it has to be seen that the Sale deed dated 10.02.1998 is a registered document. The defendant no.1 has examined DW2 i.e. Shri Mahesh Kumar, UDC from the office of Sub Registrar, Geeta Colony, Delhi and he also testified that the registered Sale deed dated 10.02.1998 was executed by Shri Amrit Lal in favour of Shri Jai Prakash and certified copy of the said Sale deed was already exhibited as Ex. DW1/2. Certified copy of the said Sale deed was again exhibited as Ex. DW2/1. DW2 was also not cross examined by the plaintiff. As such, the testimonies of both i.e. DW1 and DW2, remained unchallenged and unrebutted. I do not find any reason to disbelieve the same. Moreover, there is a presumption in favour of a registered document which is there on record in the present suit, in the shape of the sale deed Ex. DW1/2.
44. Even the other witness Shri Parmod who has been examined by the defendant no.1 as DW4 has not been cross examined by the plaintiff.
45. The plaintiff in the written final arguments has further argued that the boundaries have not been disclosed in the sale deed Ex. DW1/2 and it appears that the parties to the said sale deed were not even aware about the exact position of the suit property. A perusal of the said sale deed reveals that the boundaries have been well described in the said sale deed. Ld. Counsel for the plaintiff has further argued that possession de facto of late Shri krishan Lal and Smt. Renu Vij has been admitted by the defendants and that late Shri Krishan Lal had become the owner by virtue of adverse possession. I am of the considered opinion that the said submission of Ld. Counsel for the plaintiff is not tenable. Needless to mention that the case of the plaintiff is that of no evidence at all and nothing has been brought on record by the plaintiff to prove the documents relied upon by her to show that Shri Krishan Lal had become the owner of the suit property by way of adverse possession. Ld. Counsel for the plaintiff has further argued that Shri Amrit Lal has failed to produce on record anything to show the existence of the partnership. It is true that Shri Amrit Lal has not led any evidence and he has not brought on record any such document but I am of the opinion that the non leading of the evidence by Shri Amrit Lal i.e. defendant no.2, is not going to have any impact upon the case of defendant no.1 who has led the evidence in his favour to prove his case. It is not in dispute that Shri Amrit Lal was the owner of the suit property and in fact, in the written final arguments filed on record by the plaintiff as well, it has been admitted that Shri Amrit Lal was the owner of the property in question after having purchased the same from Shri Jeevan Singh and Shri Trilok Chand. Defendant no.1 has placed on record the certified copy of the sale deed dated 24.07.1970 executed by Shri Jeevan Singh and Trilok Chand in favour of Shri Amrit Lal as Ex. DW1/4.
46. The abovesaid chronology of the discussion, held herein above, leads to the irresistible conclusion that the plaintiff has not only failed to lead any evidence but the plaintiff also failed to cross examine any of the witnesses examined by the defendant no.
1. As such, I am of the opinion that nothing has been brought on record by the plaintiff so as to prove her case or so as to discredit the testimony of the DWs examined by defendant no.1.
47. Furthermore, it has to be seen that the Hon'ble Supreme Court of India in the authority titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. has held that immovable property can be sold only by way of registered document. The defendant no.1 has the registered sale deed Ex. DW1/2 in his favour whereas the plaintiff has merely the Agreement to sell, Affidavit and Will etc. in her favour. There is no registered sale deed in favour of the plaintiff. The plaintiff has failed to file on record the original documents. The alleged Will in favour of the plaintiff executed by her husband has also not been proved.
48. Now coming to the testimony of the tenants Shri Sunil Kumar and Shri Vinod Berry who are defendants no. 4 and 5 in suit no. 244/12 (old suit no. 155/04), it is true that the said witnesses have stated that they were inducted as tenants in the suit property either by Shri Krishan Lal or by Smt. Renu Vij and that they were paying the rent to them. But the question is as to whether the abovesaid stand of the tenants is going to have any impact on the case of the plaintiff or upon the case of defendant no.1. As stated by me herein above the plaintiff has utterly failed to prove her case, the question is as to whether the above testimony of the tenants can prove the case of the plaintiff. To my mind, the answer is in the negative. Long possession of late Shri Krishan or that of the plaintiff over the suit property is not in dispute. In the pleadings of the parties, it has already come on record that the tenants were paying the rent to the plaintiff. Accordingly, I am of the opinion that the induction of the tenants by the plaintiff or the payment of the rent by the tenants to the plaintiff is not going to alter the case of the parties.
49. In the light of the above discussion, I have no hesitation to hold that the plaintiff in suit no. 244/12 i.e. old suit no. 155/04 has utterly failed to prove issues no.2 and 3 in her favour and accordingly both the abovesaid issues no. 2 and 3 in suit no. 155/04 are decided against the plaintiff in that suit. Defendant no.1 Shri Jai Prakash who is the plaintiff in suit no. 20/04 i.e. suit no. 245/12 has been able to prove that the documents dated 12.07.1978 and the document 01.10.1992 are liable to be declared as null and void. The plaintiff Jai Prakash has also been able to prove that he is entitled for the relief of possession. I am also of the opinion that the plaintiff Shri Jai Prakash has also been able to prove on record that the LRs of Smt. Renu Vij are not entitled for the rent which is being received from the tenants. Accordingly, I hereby decide issue no. 6, 7 and 9 in suit no. 20/04 in favour of the plaintiff Shri Jai Prakash.
50. Now coming to issue no. 8 which relates to the damages, it is true that the DW4 Shri Parmod has not been cross examined by the plaintiff. But it has to be seen that the matter is an old one and the plaintiff is claiming the damages from March 1998. The original plaintiff Smt. Renu Vij has already expired leaving behind only three daughter as her legal heirs who have already been brought on record in the present suit. There is only one room in possession of the deceased plaintiff at the third floor of the premises in question and as such I deem it appropriate to grant the damages @ Rs.500/ per month w.e.f. March 1998 till the date of handing over of the possession of the portion as shown in red colour in the site plan Ex. DW1/3. Issue no. 8 stand decided accordingly in favour of defendant no.1.
Issue no.1.
51. The onus to prove issue no.1 has been placed upon defendant no.1 i.e. Shri Jai Prakash. Suit no. 155/04 i.e. suit no. 244/12 is a suit for declaration, setting aside the sale deed dated 10.02.1998 and for permanent injunction. The plaintiff i.e. late Smt. Renu Vij valued the suit for the purposes of the relief of Declaration and setting aside the sale deed dated 10.02.1998 at Rs.1.2 lakhs on which the court fees of Rs.3570/ was paid. The sale deed Ex. DW1/2 has been executed for an amount of Rs. 1.2 lakhs and as such, I am of the opinion that the defendant no.1 has failed to prove this issue in his favour. Accordingly, issue no.1 is hereby decided against the defendant no.1 Shri Jai Prakash and in favour of the plaintiff i.e. Smt. Renu Vij.
Issue no. 4.
52. Issue No.4 is pertaining to suit no. 20/04 i.e. suit no. 245/12 which is a suit for declaration, possession, permanent injunction and for recovery of damages instituted by Shri Jai Prakash. Suit no. 245/12 has been instituted by Shri Jai Prakash. Shri Jai Prakash has valued the suit at Rs.45,000/ for the relief of possession being the market value of one room in the suit property occupied by Smt. Renu Vij. No evidence has been brought on record by Smt. Renu Vij to prove her own case. Even the witnesses examined by Shri Jai Prakash have not been cross examined by Smt. Renu Vij. As such, I am of the opinion that Shri Jai Prakash in suit no. 20/04 has been able to prove this issue in his favour. Accordingly, issue no. 4 is decided in favour of Shri Jai Prakash. Issue no.5.
53. Admittedly, there are tenants in the suit property. The onus to prove this issue has been placed upon the plaintiff Smt. Renu Vij. The suit filed by the plaintiff Smt. Renu Vij and the suit filed by the defendant no.1 Shri Jai Prakash are the suits based upon the title and for cancellation of the documents which are there in favour of each other. As stated by me herein above, no evidence has been led by the plaintiff Smt. Renu Vij in order to prove her case and even the witnesses examined by Shri Jai Prakash have not been cross examined. Accordingly, I have no hesitation to hold that Smt. Renu Vij has not been able to prove this issue in her favour. As such, issue no.5 is decided in favour of Shri Jai Prakash and against Smt. Renu Vij.
Relief.
In the light of my findings upon the foregoing issues, the suit bearing no. 246/12 (old suit no. 19/04) titled as Renu Vij Vs. Jai Prakash and Anr. which is a suit for permanent injunction is hereby dismissed. The other suit no. 245/12 (old suit no. 20/04) titled as Shri Jai Prakash Vs. Renu Vij and Anr. which is a suit for Declaration, Possession, Permanent injunction and for recovery of damages is decreed. A decree of declaration is hereby passed in favour of the Shri Jai Prakash and against Smt. Renu Vij that the documents dated 12.07.1978 and the documents date 01.10.1992 are null and void. A decree of Possession is also passed in favour of Shri Jai Prakash and against Smt. Renu Vij with respect to the suit property as shown in red colour in the site plan Ex. DW1/3. A decree of permanent injunction is also passed in favour of Shri Jai Prakash and against the LRs of Smt. Renu Vij restraining them from receiving any rent from the tenants in property no. 355, gali no.2 Saraswati Bhandar, Gandhi Nagar, Delhi and the tenants are also restrained from making any payment of rent to the LRs of Smt. Renu Vij. A decree of damages is also passed in favour of Shri Jai Prakash @ Rs.500/ per month w.e.f. March 1998 till the date of delivery of the possession of the suit property as shown in red colour in the site plan Ex. DW1/3. The other suit bearing no. 244/12 (old suit no 155/04) titled as Smt. Renu Vij Vs. Jai Prakash and others which is a suit for declaration, setting aside the sale deed dated 10.02.1998 and for permanent injunction is hereby dismissed. No orders as to costs in any of the suits. Decree sheet in suit no. 245/12 be prepared by the Reader after payment of the additional court fees if any. A copy of this judgment be placed separately in each of the three suits. After preparation of the decree sheets, in each of the three suits, by the Reader, files be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 11th day of July 2013 SCJ/RC (East)
Karkardooma Courts, Delhi.