Delhi District Court
Harvinder Vashist vs Sushil Kumar Mehra on 20 April, 2012
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL. DISTRICT
JUDGEIII, ROHINI: DELHI
Suit No. 23/10
Harvinder Vashist
S/o Sh. Dalal Singh Vashist
R/o 286, Village Prahlad Pur Bangar,
Delhi. ............Plaintiff
Versus
1. Sushil Kumar Mehra
S/o Sh. Suraj Bhan Mehra,
R/o House No. 204, PocketI2, Sector16
Rohini, Delhi110085
Also at:
Dr. Sushil Kumar Mehra (Physiotherapist)
Sanjay Gandhi Memorial Hospital,
Mangolpuri, Delhi.
2. Smt. Bindu
W/o Sh. Sushil Kumar Mehra
R/o House No. 204, PocketI2, Sector16
Rohini, Delhi110085 .......Defendants
Suit No. 23/2010 Page 1 of 21
Suit filed on : 24.12.2008
Judgment on : 20.04.2012
JUDGMENT
1. Plaintiff has filed the present suit for possession praying for a decree of possession in her favour and against the defendant in respect of property bearing No. 204, PocketI2, Sector16, Rohini, Delhi (hereinafter referred to as suit property). Suit of the plaintiff is that in the month of June 2008 defendant no.1 approached him through a property dealer namely Shri Parminder Singh Rana to sell the suit property and after verifying the ownership documents of the defendant no.1 with respect to the suit property, the plaintiff agreed to purchase the same for a total consideration of Rs. 8,50,150/. The defendant also assured that suit property is free from all encumbrances, lien, charges or any dispute and further assured that he will hand over the peaceful vacant possession of the suit property at the time of execution of sale deed. Believing defendant no.1 the plaintiff purchased the suit property from defendant no.1. As Suit No. 23/2010 Page 2 of 21 agreed on 03.07.2008, defendant no.1 executed a sale deed in favour of the plaintiff, duly registered with the office of Sub Registrar, Sector16, Rohini Delhi and the plaintiff paid the entire sale consideration amount of Rs. 8,50,150/ to defendant no.1 at the time of execution of the sale deed. On the date of execution of sale deed, defendant no.1 requested the plaintiff that he will remove all his articles and belongings from the suit property and hand over peaceful, vacant and physical possession to the plaintiff within one week and Shri Parminder Singh Rana also requested the plaintiff to consider the request made by defendant no.1 but the symbolic possession of the suit property was handed over to the plaintiff. Plaintiff after considering the request agreed to give a one week time to the defendants. After one week when plaintiff asked the defendants to hand over the peaceful vacant possession of the suit property to the plaintiff as agreed, the defendants requested for two weeks more time on the ground that they could not arrange the accomodation. After expiry of further period of two weeks when the plaintiff asked the defendants to hand over peaceful vacant Suit No. 23/2010 Page 3 of 21 possession of the suit property to him as agreed, the defendants did not give any satisfactory reply. Now it has been learnt by the plaintiff that some matrimonial disputes are going on between the defendants and they are in collusion with each other and with malafide intention refused to hand over the physical possession of the suit property to him. The defendants after having sold the suit property to the plaintiff against sale consideration and execution of sale deed have no legal right to remain in possession of the suit property and are unauthorised occupants in the suit property. Hence the present suit.
2. Suit of the plaintiff has been contested by both the defendants. Defendant no.1 in his WS has not disputed the sale of the suit property by him to the plaintiff but has emphasized that at the time of sale of the suit property, he had informed the plaintiff that he was having matrimonial dispute with defendant no.2. It is denied that he is in collusion with defendant no.2, his wife and pleaded that defendant no.2 is having an evil eye on the self acquired property of defendant no.1 and wants to grab the suit property along with her father. Defendant no.2 has Suit No. 23/2010 Page 4 of 21 mainly contested the claim of the plaintiff on the ground that the plaintiff has filed the present suit in active connivance and conspiracy with defendant no.1 with a view to defraud and play mischief with her, who admittedly is in possession of the suit property being her matrimonial home. She had already filed the petition under the provisions of protection of woman from Domestic Violance Act 2005 which is pending in the court of Ms. Kiran Gupta, ld MM, Rohini Delhi and the said petition was filed much prior to the alleged sale by defendant no.1 in favour of the plaintiff and in view of the said facts, she is in lawful occupation and possession of the suit property and is also entitled to protection of the said property under the provisions of Section 19 of Protection from Domestic Violence Act, 2005. it is pleaded that doctrine of lis pendence applies to the present proceedings and as such the present suit being a collusive action of the plaintiff and defendant no. 1 and being an attempt to play fraud upon the court as well as on defendant no. 2 is required to be dismissed with compensatory cost. Objection has also been taken that the alleged sale deed is a fabricated, Suit No. 23/2010 Page 5 of 21 manipulated and a fraudulent document on the face of it as it mentions of facts of defendant no. 1 having handed over the physical vacant possession of the suit property to the plaintiff which is blatant lie as neither defendant no. 1 nor plaintiff could have the possession of said suit property which was in actual possession and occupation of defendant no. 2 and her minor daughter only. Even otherwise the market value of the property is around Rs. 35 to Rs. 40 lacs and thus value of the suit is beyond the pecuniary jurisdiction of this court. On merits also it is stated that the plaintiff has filed the present suit in connivance and conspiracy with defendant no. 1 who is also under litigation with defendant no. 2. The sale transactions between the plaintiff and defendant no. 1 has also been denied and it is averred that no person would ever enter into any deal without verifying the status of property subject to transaction . Defendant no. 1 was not even the possession of suit property or having any possibility of delivery of vacant and peaceful possession to plaintiff which was in occupation and possession of defendant no. 2 being her matrimonial home. Even otherwise Suit No. 23/2010 Page 6 of 21 the suit property was earlier belonging to her father who had only allowed the alleged transfer in the name of defendant no.1 so as to enable him to procure the loan etc. , for setting up his clinic when the defendants were living together as husband and wife . Thereafter defendant no. 1 tried to play all types of mischiefs and fraud upon defendant no. 2 and deserted her and her minor daughter who had been living in the said property ever since then being the matrimonial home of defendant no. 2 the other averments made in the plaint have also been denied. In the replication to the w/s filed separately by defendant no. 1 &
2. The plaintiff has controverted the averment made in the written statement and reiterated and reasserted the contents of plaint.
3. On the pleadings of the parties following issues were framed for consideration on 27.9.2010:
i)Whether the defendant no. 1 sold the property to the plaintiff by assuring that it was free from all encumbrances, lien, charges or any dispute as alleged in para 2 of the plaint ?OPP
ii)Whether the suit is collusive between defendant no. 1 and Suit No. 23/2010 Page 7 of 21 plaintiff and doctrine of lispendence applies as alleged in preliminary objection no. 1 in the written statement of defendant no. 2?OPD2
iii)Whether the sale of the property by defendant no. 1 to plaintiff is in violation of provisions of Protection of Womens from Domestic Violence Act, 2005 as alleged in preliminary objection no. 1 in the written statement of defendant no. 2?OPD2
iv)Whether the suit is valued properly for the purpose of court fees and jurisdiction ?OPP
v)Whether the defendant no. 2 was in possession of the suit property as her matrimonial home which belongs to father of defendant and had only allowed the alleged transfer in the name of defendant no. 1, as alleged in para 2 of the written statement of defendant no.2 ? If so, its effect ?OPD2
vi)Whether the plaintiff to entitled to decree of possession as prayed?OPP
vii) Relief.
4. In order to establish his claim the plaintiff has filed his affidavit in evidence which is Ex. PW1/1. He also tendered the Suit No. 23/2010 Page 8 of 21 documents relied in his affidavit as Ex. PW1/A (colly.). Plaintiff also examined Sh. Parvinder Rana who has been examined as PW2 . On the other hand defendant no. 1 has filed his affidavit in evidence which is Ex. DW1/A. Defendant no. 2 also filed her affidavit in evidence which is Ex. DW2/A.
5. I have thoroughly gone through the testimony of witnesses, perused the record and given thoughtful consideration to the arguments. My findings on various issues are as under: Finding on issue no.4
6. The plaintiff has valued the suit for the purpose of court fees and jurisdiction, for the relief of possession at Rs. 8,50,150/.The plaintiff has prayed the relief of possession on the basis of sale deed executed by defendant no. 1 in his favour. As per sale deed Ex. PW1/A the sale consideration is Rs. 8,50,150/. The sale deed Ex. PW1/A has been executed on 8.7.2008. The present suit has been filed in December 2008 i.e. after about five months of the execution of sale deed. For the relief of possession the suit is to be valued according to the value of subject matter. Further, as per proviso III of Section Suit No. 23/2010 Page 9 of 21 7(V) of the Court Fees Act 1870, such value in case where the subject matter is a house or garden is the market value of the house or garden. Considering that value of the property as per the sale deed was Rs. 8,50,150/ only about 5 months before the filing of the present suit, in the absence of any evidence to the contrary, it cannot be said that the sale deed was undervalued as the value had increased during the said period of five months. The plaintiff has thus been able to sufficiently establish that the value of the suit property at the time of filing the present suit was Rs. 8,50,150/ and the defendant though averred that the actual value of the property was around Rs. 35 to Rs. 40 lacs, he however failed to establish the same. In view of the said discussion issue no. 4 is decided in favour of plaintiff and against the defendant.
Finding on Issue No. 2 & 3
7. Since issue no. 2 & 3 relate to the pendency of earlier suit filed by defendant no. 2 against defendant no. 1, the same are disposed off together for the sake of convenience. The onus to prove the said issues had been placed on defendant no. 2. Suit No. 23/2010 Page 10 of 21 DW2 mainly reiterated the contents of her written statement in her affidavit regarding the filing of the suit by plaintiff in connivance and conspiracy with defendant no. 1 and protection of the said property to her under provisions of Section 19 of the Protection from Women from Domestic Violence Act 2005. Though defendant no. 2 in her affidavit has made a mention about certified copy of the petition filed by her under Domestic Violence Act pending before the court of Ms. Sonali Gupta, as Ex. DW1/1 and copy of summons as Ex. DW1/2, she has however has not tendered any document in her testimony to establish that the petition filed by her under Domestic Violence Act was filed prior to the execution of the sale deed and the prayer made by her in the said petition. PW1 in his cross examination categorically stated that he did not know if there was any litigation between the defendants with regard to divorce, maintenance and proceedings under the Protection of women from Domestic Violence Act. He was not aware that defendant no. 2 was living in the suit property as a wife of defendant no. 1 as a shared household. He also categorically Suit No. 23/2010 Page 11 of 21 denied that after receipt of the summons of the case defendant no. 1 had approached him and colluded with him to play fraud upon defendant no. 2 to usurp the right of defendant no. 2. He further testified that he made inquiry with regard to market rate of the similar property in the area and denied the suggestion that market rate of the property was Rs. 35 to Rs. 40 lacs at that time. He also testified that he got verified the documents of property from the concerned Registrar office. DW1 also in his crossexamination has testified that there was no case of domestic violence pending at the time of transaction of the suit property and admitted that one case U/s 498A and one case under the provisions of Domestic Violence Act was pending on the day when he was examined. He also admitted that in the said domestic violence Act case, defendant no.2 sought the relief of maintenance and residence and stay of sale of the suit property. He has also not been at all suggested that the case Under Domestic Violence Act was filed before the sale transaction. On the contrary, the suggestion given to him that in the case under Domestic Violence Act, defendant no.2 has Suit No. 23/2010 Page 12 of 21 sought the relief of stay of the sale of suit property also leads to an inference that the said case was filed after the sale transaction. Defendant no.2 has thus failed to establish that the suit property was sold during the pendency of case under Domestic Violence Act and that in the said case, defendant no.2 had also prayed for any restrain order or shared household. Defendant no.2 has thus failed to establish that the suit is collusive between defendant no.1 and plaintiff and doctrine of lispendense applies and further that the sale of property by defendant no.1 to plaintiff is in violation of provisions of protection of Women from Domestic Violence Act 2005. Issues no. 2 & 3 are decided against defendant no.2 and in favour of the plaintiff.
Finding on Issue No.1
8. PW1testified that the defendant assured him that suit property was free from all encumbrances, lien, charges or any disputes. In the sale deed Ex. PW1/A in para8 the vendor has assured that he is the sole absolute, exclusive and rightful owner of the suit property and is fully competent and has full Suit No. 23/2010 Page 13 of 21 power, absolute authority and undisputed right to sell and transfer the same and the said property is free from all sort of encumbrances such as sale, mortgage, gift, lease, lien, surety, security, disputes, notices, notifications, acquisition, burden, litigation etc. on the date of execution of sale deed and there is no legal defect in the title of vendor. Thus there is sufficient evidence on record to establish that defendant no.1 has sold the property to plaintiff by assuring that it was free from all encumbrances, lien, charge or any disputes. Issue no.1 is decided in favour of plaintiff and against the defendant. Finding on Issue No.5
9. Burden to prove the said issue had also been placed on defendant no.2. In order to establish the same, DW2 testified that the suit property was in her actual possession and occupation on the date of sale transaction. Neither defendant no.1 nor the plaintiff could have got the possession of the suit property which was in actual possession and occupation of her minor daughter and herself. She also exhibited the certified copy of crossexamination of defendant no.1 in the court of Ms. Suit No. 23/2010 Page 14 of 21 Rekha, the then MM, Rohini Delhi recorded in petition U/s 125 CPC which is Ex. DW1/3. She further testified that defendants no.1 & 2 were not in speaking terms and defendant no.2 was fighting for her right for protecting her matrimonial home. Plaintiff and defendant no.1 never came to suit property for any purpose since 18.09.2005 and defendant no.2 had never seen the plaintiff before the litigation. She further testified that the suit property was in her possession as her matrimonial home and the said property even otherwise earlier belonged to her father who had only allowed the alleged transfer in the name of defendant no.1 so as to enable him to procure loan etc. for setting up his clinic when they were living together as husband and wife. From the certified copy of crossexamination of defendant no.1 recorded in the petition U/s 125 Cr.P.C. titled Bindu Mehra Vs Sushil Kumar Mehra recorded on 30.06.2008, it is revealed that defendant no.1 has admitted that he had left the matrimonial home on 18.09.2005. Ld counsel for defendant no.2 has argued that since as per the own admission of defendant no.1, he left the matrimonial home on 18.09.2005, he could not Suit No. 23/2010 Page 15 of 21 have been in possession of the suit property in the month of June 2008 when he had entered into transaction with the plaintiff and on 03.07.2008 when the sale deed was executed. On the other hand, PW1 testified that he had seen the property prior to purchase. He had also gone inside the house with Shri Parminder Rana. His testimony in this regard has also been corroborated by PW3 Shri Parvinder Rana. DW1 in his cross examination by ld counsel for plaintiff also admitted that he had shown the property to plaintiff before selling the same to him. He also admitted that when he had shown the property to plaintiffs, he was in possession of the property and had also handed over the keys of the suit property to the plaintiff after execution of the sale deed. He further admitted that at the time of execution of sale deed, articles belonging to him were kept inside the suit premises. PW2 also in his crossexamination admitted that defendant no.1 had sold the suit property to plaintiff and plaintiff had visited the suit property. He also denied the suggestion that defendant no.1 was never in possession since September 2005 and had not shown the property either to Suit No. 23/2010 Page 16 of 21 him or the plaintiff. Even if the crossexamination of DW1 recorded in the petition U/s 125 Cr.P.C. wherein defendant no.1 admitted that he had left the matrimonial home on 18.09.2005 is considered, DW1 in his crossexamination has not at all stated that after 18.09.2005, he never entered again in the house. Thus it can not be inferred that defendant no.1 was not in possession of the suit property on the day of sale transaction between plaintiff and defendant no.1. Defendant no.2 also has failed to produce any documentary evidence on record to establish that she was in possession of the suit property on the day of sale transaction. DW1 in his crossexamination testified that his wife was not residing in the suit property on the date of execution of the sale deed and had taken away all her goods. Even otherwise the issue involved is whether defendant no.2 was in possession of suit property as her matrimonial home which belonged to father of defendant who had only allowed the alleged transfer in the name of defendant no.1 and not merely if defendant no.2 was in possession of suit property. DW2 in her crossexamination admitted that the suit property was Suit No. 23/2010 Page 17 of 21 transferred by her father in the name of defendant no.1 through a sale deed, she also gave an evasive reply by stating that she did not remember whether they had filed a suit for declaration for getting the sale deed declared null and void against defendant no.1 and the said suit was dismissed against her father. Even if it is assumed that no such suit for declaration was dismissed against the father of defendant no.2, since the alleged sale transaction has not been declared as null and void by any court of law, the same is deemed to be a genuine one and executed against consideration. Thus the defendant no.2 failed to establish that the property in question belonged to her father which was transferred in the name of defendant no.1 only for the purpose of getting loan by defendant no.1 from the banks for establishing his clinic. Thus even if the oral testimony of DW2 that she was in possession of suit property on the day of execution of sale deed is believed, since she failed to establish her right and tile in the property, she has no claim against the rightful owner who has purchased the property from registered owners against lawful consideration. Issue No. 5 is also thus Suit No. 23/2010 Page 18 of 21 decided in favour of plaintiff and against defendant no.2. Finding on Issue No.6
10. There is no dispute that the suit property has been sold by defendant no.1 to plaintiff by registered sale deed. As per Section 54 of the Transfer of Property Act, 1882, "sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised. Such transfer in the case of tangible immovable property of the value of Rs.100/ and upward or in case of reversion or other intangible thing, can be made only by a registered instrument. In case of tangible immovable property of value less then one hundred rupees, such transfer may be made either by a registered instrument or by delivery of property." Section 55 (2) of Transfer of Property Act 1882 lays down "The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that seller has done no act whereby the property is Suit No. 23/2010 Page 19 of 21 encumbered or whereby he is hindered from transferring it." In sale deed Ex. PW1/A, the defendant no.1/vendor has assured that he is absolute, rightful owner and in possession of the suit property with free hold rights of the land under the said property. It is also mentioned in para2 of the sale deed Ex. PW1/A that the vendor has handed over the physical vacant possession of the aforesaid property under sale to the vendee on the spot at the time of registration/execution of the sale deed. PW1, PW2 & DW2 also testified that the keys of the property were handed over to the plaintiff at the time of execution of the documents meaning thereby that the symbolic possession was handed over to the plaintiff at the time of execution of the sale deed. In view of the provisions of Section 55 (2) of the Transfer of Property Act and considering that the elements of the 'sale' as per Section 54 of Transfer of Property Act are complete, the plaintiff is entitled to possession of the suit property as prayed. Issue no. 6 is decided in favour of plaintiff and against the defendant. Relief
11. In view of my finding on aforesaid issues, suit of the plaintiff Suit No. 23/2010 Page 20 of 21 is decreed and the defendants are directed to handover actual, vacant and physical possession of the suit premises bearing No. 204, Pocket I2, Sector16, Rohini to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 20.04.2012 ADDL. DISTRICT JUDGEIII
ROHINI COURTS: DELHI
Suit No. 23/2010 Page 21 of 21
Suit No. 23/2010
16.04.2012
Present: None.
Judgment partly dictated.
Put up pronouncing judgment on 20.04.2012.
(SUKHVINDER KAUR)
ADDL. DISTRICT JUDGEIII
ROHINI COURTS: DELHI
20.04.2012
Present: None.
Vide separate judgment, suit of the plaintiff is decreed and the defendants are directed to handover actual, vacant and physical possession of the suit premises bearing No. 204, Pocket I2, Sector16, Rohini to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGEIII ROHINI COURTS: DELHI Suit No. 23/2010 Page 22 of 21