Delhi District Court
Sagar vs Deshraj on 6 June, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-0005591-2016
Civil DJ No. 613264/2016
SH. SAGAR
S/o Sh. Raja Ram,
R/o C-446, J.J. Colony,
Madipur, New Delhi ...Plaintiff.
Versus
Sh. Deshraj
S/o Late Sh. Narain,
R/o B-245, J.J. Colony,
Madipur, New Delhi. ...Defendant
SUIT FOR POSSESSION OF SUIT
PROPERTY, PERMANENT INJUNCTION
AND MESNE PROFITS.
DATE OF INSTITUTION : 11.08.2016
JUDGMENT RESERVED ON : 05.06.2024
JUDGMENT PRONOUNCED ON : 06.06.2024
Ld. Counsel for the Plaintiff :Mr. K. B. Shankar , Adv.
Ld. Counsel for the Defendant :Mr. Yogesh Kumar Chandna,Adv.
JUDGMENT
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 1 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:07:06 +0530
1. The Plaintiff has filed the present suit, against the Defendant, for possession, injunction and mesne profits.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief hereinbelow:
i. The Plaintiff is the owner of property bearing no. B-
245, J.J. Colony, Madipur, New Delhi (hereinafter referred to as the 'suit property'). The Defendant is an unscrupulous person, who is in illegal possession of the suit property, and who despite notice, has refused the vacate the suit property.
ii. The mother of the Defendant, Smt. Shanti Devi, wife of Sh. Narain, was the absolute owner of the suit property having purchased it from it her husband, for valuable consideration through various documents, such as General Power of Attorney, Agreement to Sell, Affidavit etc. iii. The said Smt. Shanti Devi, for the bonafide needs sold the suit property to the Plaintiff for a valuable consideration of Rs.4,95,000/-, which amount stands paid by the Plaintiff and acknowledge by the mother of the Defendant, through an Agreement to Sell dated 06.02.2015, along with an affidavit, receipts, registered will etc, all of the same date.
Digitally signed by ANIL ANIL CHANDHEL Sagar Vs. Deshraj Page No. 2 of 32 CHANDHEL Date:
2024.06.06 Civil DJ No. 613264/2016 17:07:13 +0530 iv. At the time of the said transfer, it was represented to the Plaintiff, by the said Smt. Shanti Devi that the Defendant is in permissive possession of the 1st 2nd, 3rd and the 4th floor of the suit property, and his sister Smt. Gomti, W/o Sh. Bhaget Singh is in permissive possession of the ground floor of the suit property.
v. It was specifically represented to the Plaintiff by the mother of the Defendant that both Defendant and his said sister are in mere permissive possession as licensee and have no independent rights in the suit property whatsoever.
vi. The Plaintiff after purchasing the said property had asked both the Defendant and his sister somewhere in April 2015 to vacate. The sister of the Defendant had requested the Plaintiff that she be allowed to continue in the property and was ready to pay rent therefore.
vii. Accordingly, a rent agreement / lease deed was executed between the two, and as of today, the sister of the Defendant, Smt. Gomti, continues to be a lessee of the Plaintiff, residing on the ground floor of the suit property.
viii. When the Plaintiff had asked the Defendant to vacate the suit property, he had requested some more time, Sagar Vs. Deshraj Page No. 3 of 32 ANIL Civil DJ No. 613264/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:07:20 +0530 and had represented that since he was short on financial resources he be allowed to continue as a licensee being in permissive possession.
ix. Since the Defendant had requested only for a few months time, and considering the fact that his mother was very old, coupled with the fact that the Plaintiff at that stage was not in any particular need of the place, allowed the Defendant to continue as a licensee, being in permissive possession for a few months. The Defendant had promised the Plaintiff that he will vacate all floors by the end of August, 2015.
x. When the Plaintiff had asked the Defendant to vacate the suit property in the month of September, he had requested few more days, as his mother was very ill and the process would require some time, as clearing out would require some effort, and the Defendant was at that time concentrating his energies on his mother. Considering the health of the mother of the Defendant the Plaintiff had acceded to the said request, at this stage.
xi. Unfortunately in the month of October 2015, the mother of the Defendant passed away, and due to the said death the Plaintiff did not trouble the Defendant in his time of grief.
Sagar Vs. Deshraj Page No. 4 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date: 2024.06.06 17:07:26 +0530 xii. The Plaintiff is the owner of the suit property in view
of the aforesaid documents, such as Agreement to Sell, Affidavit etc. and particularly in view of the registered Will, which became operational in October, 2015, in view of the death of Smt. Shanti Devi.
xiii. Due to the fact that since the death of Defendants mother, the Defendant had blocked all the attempts of the Plaintiff to communicate with him, the Plaintiff had visited the suit property in January, 2016. To the utter shock and dismay of the Plaintiff, it was found that the Defendant had illegally and without any authority let out the 2nd, 3rd and fourth floor of the suit property. The Plaintiff had immediately met the Defendant and told him that he would be initiating legal action. However, even at that stage, the Defendant had represented to the Plaintiff that all the aforesaid floors were in occupation of some relatives, who would soon be vacating them, and the entire vacant peaceful possession of the said floors, including his would be handed over to the Plaintiff by the end of March, 2016.
xiv. The Plaintiff had contacted the Defendant in the month of April 2016, however, the Defendant had given an evasive reply. Since then the Plaintiff has Sagar Vs. Deshraj Page No. 5 of 32 Digitally Civil DJ No. 613264/2016 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.06.06 17:07:32 +0530 regularly tried to contact the Defendant, however, the Defendant has been avoiding all such contacts.
xv. In these facts, the Plaintiff was constrained to send a legal notice dated 11.07.2016 to the Defendant through his counsel, wherein the vacant peaceful possession of the suit property was demanded, along with damages. However, the Defendant has through his counsel sent a reply to the said legal notice dated 15.07.2016, whereby the contentions of the Plaintiff have been evasively denied. The Defendant herein is in illegal and unauthorized possession of the suit property, and therefore is liable to vacate the same and pay mesne profits.
xvi. Accordingly, the Plaintiff has filed the present suit for the prayers of possession, permanent injunction and mesne profits, with regard to the suit property.
3. The facts stated in the Written Statement:
The Defendant was duly served with the summons of the suit and entered appearance. The Defendant has filed written statement, wherein the averments of the plaint were denied. The averments, made in the written statement, are summed up in brief, in paras hereinbelow:
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 6 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:07:38 +0530 i. The Plaintiff forged signatures of Late Sh. Narain on some false documents and on basis of those false documents further created ownership documents and has filed the present suit on the basis of the aforesaid forged, false and fabricated documents.
ii. The Plaintiff has filed the present suit on the basis of registered ownership documents, which do not bear the signature of executants and are forged. The same are made in a manner to resemble with the true signatures but lacked resemblance. The documents are created on false stamp papers having improper value and are unregistered and in no manner transfer ownership.
iii. The alleged documents attached with the plaint bears allegedly thumb impressions of Late Smt. Shanti Devi who was not in a fit state of mental and physical health on the alleged date of execution of documents as she was neither capable of hearing nor able to properly see nor have understanding of the documents being illiterate. Therefore, she was incapable of executing the documents. So, either the documents do not bear the thumb impression or the same were obtained by committing fraud, coercion, undue influence and misrepresentation. As such the documents have no applicability in respect of the suit ANIL Sagar Vs. Deshraj Page No. 7 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:07:44 +0530 property and are liable to be declared as null and void ab-initio.
iv. The suit property was allotted to Late Sh. Narain who died intestate and never transferred the documents to Late Smt. Shanti Devi. It is further impossible that the transfer documents be executed for consideration mentioned in the documents in favour of Late Smt. Shanti Devi, who was wife of Late Sh. Narain. It is further submitted that the suit property devolved upon all the Legal Heirs of Late Sh. Narain and as such Late Smt. Shanti Devi had no power to execute the alleged transfer documents attached with the plaint purported to be in favour of Plaintiff.
v. The Plaintiff alleged that he is in possession of Agreement to Sell, Receipt, an Affidavit and a registered Will. Out of these documents, only Will is capable of transferring the title only if it is probated as the Will in question is not a family Will and contains no clear indication as to why the property was not given to any family member. The Plaintiff firstly needs to get the Will probated and then only on successful probate he is entitled to as for operation of the Will in his favour. It is further submitted that the thumb impression were obtained on alleged Will by means of misrepresentation, Digitally signed by Sagar Vs. Deshraj Page No. 8 of 32 ANIL ANIL CHANDHEL Civil DJ No. 613264/2016 CHANDHEL Date:
2024.06.06 17:07:51 +0530 concealment of true facts, fraud, coercion and undue influence and therefore, the Will is not a valid Will.
vi. The suit is not properly valued for the purpose of relief of possession as the value of property is presently above Rs. 35,00,000/-.
vii. The Plaintiff is not in possession of Ground floor of the suit premises and this fact has been concealed by him and therefore, the present suit deserves to be dismissed in view of concealed of true facts. It is submitted that on ground floor, brother of Defendant Sh. Mool Chand is residing and no tenant as alleged through the false rent agreement executed between Plaintiff and Ms. Gomti is residing on Ground floor of the suit property.
viii. It is submitted that the suit property was allotted to father of Defendant namely Sh. Narain and he died intestate on 24.03.2000 and after his death, the legal heirs of Late Sh. Narain became joint owners of the suit property. It is further submitted that the Plaintiff forged signatures of Late Sh. Narain and created false documents and on basis of those false documents has further created false ownership documents, which are not valid in view of the fact that the documents are in continuation of false ANIL CHANDHEL Sagar Vs. Deshraj Page No. 9 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:07:57 +0530 documents and false documents do not create ownership or transfer owner ship in any manner.
ix. It is submitted that the Defendant is residing in suit property since allotment of suit property to his father and he became joint owner of property after death of his father being one of the legal heir of Late Sh. Narain.
x. It is submitted that the mother of Defendant was of advance age of about 70 years and she was incapable of hearing and her eye sight was also not proper and therefore she was incapable of understanding the effect of these documents and as such the documents are without her consent to the effect of these documents. It is submitted that the amount of Rs.4,95,000/- was not deposited in any of her accounts. It is submitted that the daughter of Smt. Shanti Devi, with some malafide motive in connivance with Plaintiff, has created the false documents in respect of his father and accompanies Smt. Shanti Devi in order to convince her to sign the alleged documents though she could not understand the effect of the documents, but being with her daughter and believing her to be good and being having faith on her daughter Late Smt. Shanti Devi signed these documents. It is further submitted that as these documents are made without telling truth to ANIL Sagar Vs. Deshraj Page No. 10 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:02 +0530 Late Smt. Shanti Devi and without making her understand the effect of her signing these documents and by way of concealing the truth and by way of fraud and coercion on part of Ms. Gomti, who was witness in all the documents, so these documents have no effect and have no value being obtained by fraud upon Late Smt. Shanti Devi. It is submitted that even after execution of these documents the Plaintiff allowed Late Smt. Shanti Devi to keep on enjoying the suit property which also show malafide of the intentions of Plaintiff and sister of Defendant Ms. Gomti. It is submitted that in order to further take possession of the property easily the Plaintiff executed one rent agreement wih the daughter of Late Smt. Shanti Devi in June 2016 and thereafter, sent Legal Notice to Defendant in July 2016 and thereafter sent Ms. Gomti to occupy the Ground floor of the suit property unlawfully by quarreling with her own brothers. All These facts show connivance on part of the Plaintiff and Ms. Gomti, sister of the Defendant, Ms. Gomti shows herself to be resident of E-526, JJ Colony, Madipur while signing as witness in the Will executed by her mother. It is submitted that sister of Defendant was residing at E-526 JJ Colony Madipur, Delhi as mentioned in place of witness in the alleged documents filed by Plaintiff himself.
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 11 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:08 +0530 xi. It is submitted that Defendant is in use and occupying first floor of the suit property and in joint co-owner of the suit property along with his brother Mool Chand, who is required to be made a party in the present suit as he is occupying Ground floor portion whereas 2nd and 3rd floor is given by us in tenants.
xii. On the ground floor, the brother of the Defendant, Sh. Mool Chand, has been residing since date of allotment. It is submitted that there is connivance between Smt. Gomti and Plaintiff and with malafide intentions the rent agreement was created by them and Smt. Gomti Tried to quarrel with Defendant and his brother in order occupy the ground floor of the suit property but as the Defendant has already received the legal notice on behalf of the Plaintiff, therefore, she could not succeed.
4. The facts stated in the Replication:
4.1 The Plaintiff has filed the replication, wherein the Plaintiff has traversed the contents of the written statement of the Defendant and has made the necessary denials, reiterating the contents of the plaint.
5. Issues:
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 12 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date:
2024.06.06 17:08:14 +0530
5.1 On the basis of the pleadings of the parties, the following issues were framed on 21.03.2017: -
i. Whether documents executed in favour of the Plaintiff are forged and fabricated? OPD.
ii. Whether thumb impression of Smt. Shanti Devi was received on the Will executed in favour of Plaintiff by committing fraud and undue influence? OPD iii. Whether Smt. Shanti Devi had no right to execute the documents in favour of the Plaintiff as Late Sh. Narain has died intestate and never transferred the suit property in favour of Late Smt. Shanti Devi? OPD.
iv. Whether the suit is not properly valued for the purpose of relief of possession? OPP.
v. Whether the Plaintiff is entitled for decree of possession of first, second third floor and fourth floor of the suit property i.e. B-245, J.J. Colony, Madipur, New Delhi? OPP.
vi. Whether the Plaintiff is entitled for decree of permanent injunction thereby restraining Defendant from creating third party interest in any ANIL CHANDHEL Sagar Vs. Deshraj Page No. 13 of 32 Digitally signed by Civil DJ No. 613264/2016 ANIL CHANDHEL Date: 2024.06.06 17:08:19 +0530 manner in the suit property? OPP.
vii. Whether Plaintiff is entitled for mesne profit @ Rs.12,000/- per month from the date of institution of suit till handling over of the possession? OPP.
viii. Relief. 6. The Plaintiff's Evidence: 6.1 The Plaintiff has led his evidence and has examined one
witness in support of his case. The Plaintiff has appeared as PW-1. The Plaintiff has reiterated the contents of the plaint, in her examination in chief. He has exhibited and relied upon the following documents in his examination-in-chief:
i. Mark A: Copy of Voter I.D. Card.
ii. Exhibit PW-1/2(OSR): Copy of GPA.
iii. Exhibit PW-1/3(OSR): Copy of GPA.
iv. Exhibit PW-1/4: Rent Agreement.
v. Exhibit PW-1/5: Legal Notice.
vi. Exhibit PW-1/6: Copy of reply to Legal Notice.
vii. Exhibit PW-1/7(Colly): Original courier /postal
receipts.
viii. Exhibit PW-1/8: Site Plan.
The PW-1 was cross-examined by Ld. Counsel for the Defendant and was discharged upon conclusion of his cross examination.
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 14 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:25 +0530
7. The Defendant's evidence:
7.1. The Defendant has led his evidence and has examined only him in support of her case. The Defendant has appeared as DW-1. The Defendant has reiterated the contents of the written statement in his examination in chief. He has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit DW-1/1: Copy of the OPD Slips ii. Exhibit DW-1/2: Copy of death certificate dated 04.10.2015.
iii. Exhibit DW-1/3: Copy of Will dated 12.06.2014. iv. Exhibit DW-1/4: Copy of NOC by Ms. Natho Devi. v. Exhibit DW-1/5: Copy of Aadhar Card of Defendant and his family members.
vi. Mark-X: Copy of photograph of Plaintiff and the Defendant's sister.
vii. Mark-Y: Copy of gas connection.
8. Submissions of the Counsels.
8.1. After the conclusion of evidence, Ld. Counsels for the parties have addressed their arguments. Ld. Counsel for the Plaintiff has submitted that the Plaintiff has proved the documents executed by the mother of the Defendant. It is submitted that mother of the Defendant has executed a ANIL Sagar Vs. Deshraj Page No. 15 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:30 +0530 registered Will and therefore, the Defendant does not have any right in the suit property. Ld. Counsel for the Plaintiff has relied upon the following judgments.
i. Kanta Yadav vs. Omparkash Yadav: AIR 2019 SC 5556 ii. Rajinder Singh Chowdhary vs. Sardar Manjit Singh Chowdhary: AIR 2002 Delhi 135.
iii. Pramod Kumar vs. Amar Krishan Babu (Patna High Court dated 09.11.2015).
8.2. Ld. Counsel for the Defendant has submitted that the Plaintiff has failed to prove the ownership in the suit property. It is submitted that the Plaintiff has neither proven the transactions between late Mr. Narain and Ms. Shanti Devi nor between him and late Ms. Shanti Devi. It is submitted that the Defendant is a co-owner in the suit property and the unregistered documents, relied upon by the Plaintiff cannot be made basis for filing the suit for possession. Ld. Counsel for the Defendant has relied upon the judgment passed by the Hon'ble Supreme Court in "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023):
2023 INSC 1016."
9. Conclusions on Issues and Reasons for such conclusions:
9.1. Issue No. 1: Whether documents executed in favour of the Plaintiff are forged and fabricated? OPD.
ANIL CHANDHEL Sagar Vs. Deshraj Page No. 16 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:36 +0530 9.1.1. The onus to prove this issue is upon the Defendant. The Defendant has stated in the written statement that the documents in favour of the Plaintiff are forged and fabricated. It is stated in para no. 2 of the written statement and the para no. 3 of affidavit of evidence that the unregistered document, relied upon by the Plaintiff do not bear the signatures of the executant and the same are forged in a manner, which bears resemblance to the signatures of the executant. However, the Defendant has not specifically stated, either in the pleadings or in the evidence as to which signature has been forged, in reference to the each document relied upon by the Plaintiff.
9.1.2. The Defendant has also stated that the signatures of the mother of the Defendant and her thumb impressions are either forged or the same are obtained by committing fraud, coercion, undue influence and misrepresentation. The Plaintiff has not produced the admitted signatures of the executants, and has not led any evidence for comparison of the admitted signatures of the executant with the signatures alleged to be forged. The Plaintiff has been relying upon the two sets of documents. First set of documents were executed by the father of the Defendant, in favour of the mother of the Defendant. Second set of documents were executed by the mother of the Defendant, in favour of the Plaintiff. It is stated by the Plaintiff in the cross-examination that he cannot identify the signatures on Ex.PW-1/2, which is GPA Sagar Vs. Deshraj Page No. 17 of 32 ANIL CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:41 +0530 executed by the father of the Defendant, in favour of the mother of the Defendant. However, the Plaintiff has denied the suggestion that signatures of Shanti Devi on the Exhibit PW-1/3 were obtained fraudulently. The Defendant has not produced any other material, which may be made basis of declaring the signatures on the documents as forged and fabricated. Therefore, the Defendant has failed to prove the Issue No.1 and the same is decided against the Defendant and in favour of the Plaintiff.
9.2. Issue No.2: Whether thumb impression of Smt.
Shanti Devi was received on the Will
executed in favour of Plaintiff by
committing fraud and undue influence?
OPD.
9.2.1. The onus to prove this issue is upon the Defendant. The Plaintiff has relied upon the Will dated 06.02.2015, which is stated to be registered on 10.02.2015 in the office of Sub- Registrar-I, Delhi. The Defendant has stated that the signatures and thumb impressions of Ms. Shanti Devi were obtained by the Plaintiff, by playing a fraud and exercising undue influence. The Defendant has stated that his mother was of 70 years of age and was incapable of hearing and her eye sight was also not proper. It is stated that she was incapable of understanding the effect of the documents and Sagar Vs. Deshraj Page No. 18 of 32 ANIL CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:51 +0530 therefore, the documents are executed without her consent. The Defendant has not produced any effective evidence in terms of medical record with regard to physical or mental disability of his mother, during the relevant time. The copies of the prescriptions filed by the Defendant do not establish the nature of ailment or the status of the physical or mental disability with any clarity.
9.2.2. Interestingly, the Defendant has also filed one Will dated 12.06.2014, whereby the suit property is stated to be bequeathed in favour of the Defendant. The aforesaid Will is also stated to be registered and is Ex.DW-1/3 (OSR). Therefore the capacity of Ms. Shanti Devi, to execute a Will at a relevant date cannot be stated to be associated with any disability. If the mother of the Defendant could execute a registered Will in favour of the Defendant in the year 2014, she was equally capable of executing another registered Will in the year 2013, unless the contrary is proved by the Defendant. Except oral averments, nothing has been brought in evidence by the Defendant to prove that the signatures of the mother were obtained by fraud or under undue influence. Therefore, the Defendant has failed to prove the Issue No.2 and the same is decided against the Defendant and in favour of the Plaintiff.
9.3. Issue No.3: Whether Smt. Shanti Devi had no right to execute the documents in favour of the Plaintiff as Late Sh. Narain has died ANIL Sagar Vs. Deshraj Page No. 19 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:08:57 +0530 intestate and never transferred the suit property in favour of Late Smt. Shanti Devi? OPD.
9.3.1. The onus to prove this issue is upon the Defendant. The question to be adjudicated within the scope of this Issue is whether Late Mr. Narain has executed the GPA, agreement to sell and Will in favour of his wife, i.e., Late Shanti Devi. However this Court is of the view that before the Defendant could disprove the aforementioned documents, stated to be executed by Late Mr. Narain in favour of his wife, the Plaintiff has to prove the factum of execution of the afore- mentioned documents. It has been stated by the Defendant in written statement as well as in the examination in chief that his father Mr. Narayan was the original allottee/owner of the property and he has never transferred the suit property in favour of his mother.
9.3.2. It is the case of the Plaintiff that Mr. Narain has transferred the property in favour of Ms. Shanti Devi by executing GPA, Agreement to Sell, Affidavit and Will. The aforementioned documents are unregistered. The Plaintiff has not examined anyone except himself to prove the aforesaid documents. The Plaintiff has stated in the cross-examination that he did not know, when the aforesaid documents were prepared. He has further expressed his inability to say, whether the Exhibit PW-1/2 was registered or unregistered. The Plaintiff has further stated in the cross-examination that he cannot Digitally signed by Sagar Vs. Deshraj Page No. 20 of 32 ANIL ANIL CHANDHEL Civil DJ No. 613264/2016 CHANDHEL Date:
2024.06.06 17:09:02 +0530 confirm or deny, whether the signatures of late Mr. Narain on the Exhibit PW-1/2 were genuine or not. The Defendant has denied the execution of the afore-mentioned documents, therefore, it was incumbent on the Plaintiff to prove the afore-mentioned documents, as the title set up by the Plaintiff comes to his predecessor-in-interest through the aforementioned documents. The aforementioned documents were collectively exhibited as Exhibit PW-1/2 in the Plaintiff's evidence. Merely marking the afore-mentioned documents as an exhibit by the Plaintiff will not amount to the proof of the documents. The Plaintiff is neither an executant nor a witness to the aforementioned documents and therefore, was not an appropriate witness, who could have prove the factum of execution of the documents Exhibit PW-1/2. The Plaintiff has not examined any attesting witness to prove the Will of late Mr. Narain, in favour of Ms. Shanti Devi and the aforesaid Will has not been proven in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Interestingly, the Plaintiff himself does not guard the authenticity or the factum of due execution of the Exhibit PW-1/2 and expresses his complete lack of knowledge about the due execution of the same in the cross examination.
9.3.3. Therefore, the Plaintiff has failed to prove the Exhibit PW-
1/2, the documents executed by late Mr. Narain in favour of Ms. Shanti Devi and it has to be concluded that Late Mr. Narain died intestate. Thus, the absolute ownership of the Sagar Vs. Deshraj Page No. 21 of 32 ANIL Civil DJ No. 613264/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:07 +0530 predecessor in interest of the Plaintiff, i.e., Late Shanti Devi has not been established on record. The Defendant has thus succeeded in proving the Issue No.3.
9.3.4. However, it emerges from the cross-examination of the PW-1 that Late Mr. Narain has passed away prior to the transaction between the Plaintiff and Late Shanti Devi. In the event of her husband dying intestate, Late Shanti Devi became a co-owner of the suit property, by virtue of succession, being the wife and a first line legal heir. Therefore, even if the documents executed in favour of Late Shanti Devi executed by her husband are not proved, still Late Shanti Devi was entitled to deal with and execute documents with regard to her undivided share in the suit property.
9.4. Issue No. 4: Whether the suit is not properly valued for the purpose of relief of possession? OPD.
9.4.1. The onus to prove this issue is upon the Defendant. The Plaintiff has stated in the plaint that the value of the suit property is Rs.5,10,000/- and has accordingly, paid the court fees for the prayers of possession. It is stated in the written statement the market value of the suit property is more than Rs.35,00,000/-. The DW-1 has reiterated the aforesaid contention in the examination in chief. However no documentary corroboration has been provided for ANIL Sagar Vs. Deshraj Page No. 22 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:13 +0530 substantiating the aforesaid contentions. The Defendant has neither shown it from the comparison of circle rates or from the document of the properties in the vicinity about similarly situated properties, which can be made basis for inferring the market value of the suit property. Since the Defendant has not produced any credible evidence about the market value of the suit property, the Defendant has failed to prove that suit is appropriately valued for the prayer of possession. The Issue No.4 is accordingly decided against the Defendant and in favour of the Plaintiff.
9.5 Issue No. 5 Whether the Plaintiff is entitled for decree of possession of first, second third floor and fourth floor of the suit property, i.e., B-245, J.J. Colony, Madipur, New Delhi? OPP.
9.5.1. The Onus to prove this Issue is upon the Plaintiff. The Plaintiff has stated in the plaint that he is owner of the suit property. It is stated that the Plaintiff has purchased the suit property from the Ms. Shanti Devi, the mother of the Defendant. The Plaintiff has purchased the suit property in terms of the following unregistered documents:
i. General Power of Attorney dated 06.02.2015. ii. The Agreement to Sell dated 06.02.2015.
iii. Affidavit dated 06.02.2015.
ANIL
CHANDHEL
Sagar Vs. Deshraj Page No. 23 of 32
Civil DJ No. 613264/2016 Digitally signed by
ANIL CHANDHEL
Date: 2024.06.06
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iv. Receipt of payment dated 06.02.2015.
v. Possession letter dated 06.02.2015.
vi. Registered Will dated 10.02.2015.
It is further the case of the Plaintiff that Late Ms. Shanti Devi purchased the suit property from late Shri Narain, by way of unregistered General Power of Attorney, affidavit, Agreement to Sell and Will. It has been held in the discussion under Issue No. 3 that the Plaintiff has not proved the Exhibit PW-1/2, which are the documents executed by late Mr. Narain, in favour of Ms. Shanti Devi. It has been held that late Mr. Narain has died intestate. Thus in the absence of the proof of the afore-mentioned Exhibit PW-1/2, the transactions between the Plaintiff and Ms. Shanti Devi can be enforced only to extent of right of Ms. Shanti Devi in the suit property. Since the Defendant is a co-owner in the suit property, therefore, the Plaintiff cannot institute a suit for possession against him, on the strength of the documents executed by late Shanti Devi.
9.5.2. There is one more disqualification associated with the documents, relied upon by the Plaintiff. The documents, relied upon by the Plaintiff, i.e., GPA, agreement to sell, Affidavit, Possession letter and receipt of payment are unregistered and do not convey any legal title to the Plaintiff. The Plaintiff has also relied upon the registered Will dated 10.02.2015. The Plaintiff has stated in the cross-examination that the aforesaid documents were registered, however, except the Will dated Sagar Vs. Deshraj Page No. 24 of 32 ANIL CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:23 +0530 10.02.2015, all other documents are unregistered. The Plaintiff has not examined any attesting witness to prove the aforesaid Will. Ld. Counsel for the Plaintiff has submitted that the aforesaid Will is a registered document and therefore, the Plaintiff was not required to examine any attesting witness to prove the same. The aforesaid contention is not legally tenable. The judgments relied upon by the Ld. Counsel for the Plaintiff, as mentioned in para 8.1 also do not support the afore-mentioned contentions and are not relevant to the discussion at hand. Even a registered Will is required to be proved in terms of Section 68 of the Indian evidence Act, 1872, read with 63 of Indian Succession Act, 1925. Section 68 of the Indian Evidence Act is reproduced hereinbelow:
"68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Thus it is evident from Section 68 of the Act that even a registered Will is required to be proved, by summoning the attesting witness. Moreover, the Plaintiff was also required to ANIL Sagar Vs. Deshraj Page No. 25 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:28 +0530 prove the factum of registration of the aforesaid Will. The Plaintiff did not summon the records from the office of Sub- Registrar to prove the factum of registration. Though the factum of registration alone would not amount to proof of the Will, if the attesting witness has not been examined. Therefore, the Plaintiff has failed to prove the Will dated 10.02.2015. In so far as the remaining documents, relied upon by the Plaintiff are concerned, all of them are unregistered and therefore do not confer any ownership on the Plaintiff.
9.5.3. Ld. Counsel for the Defendant has relied upon the judgment passed by Hon'ble Supreme Court in, "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016." In the aforesaid case, the Plaintiff has filed a suit for possession on the basis of unregistered documents. The Hon'ble High Court has decreed the suit on the ground that the Defendant has failed to prove his defence, the Plaintiff had a better title and further the Plaintiff could be construed as attorney of previous owner. The relevant observations of the Hon'ble High Court of Delhi in "Shakeel Ahmed Vs. Syed Akhlaq Hussain:2018:DHC:5311", are being reproduced hereinbelow:
"6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed. I completely agree with the reasoning and conclusions of the trial court because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only ANIL Sagar Vs. Deshraj Page No. 26 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:33 +0530 in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff. I also agree with the trial court that the issue of Gift Deed could not be believed because in the written statement filed by the appellant/defendant there were no names which were given as to who were the relatives and the other persons present when the alleged oral gift had taken place by Laiq Ahmed to his brother/appellant/defendant. Even in his affidavit by way of evidence filed by the appellant/defendant there was complete silence as regards the persons/their names who were present at the time of the alleged oral gift of the suit property made by Laiq Ahmed to his brother/appellant/defendant. I therefore agree with the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother.
7. Though not argued on behalf of the appellant/defendant one other issue which requires consideration is as to whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr.: 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing ANIL Sagar Vs. Deshraj Page No. 27 of 32 CHANDHEL Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:39 +0530 as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. This additional reasoning I am giving under Order XLI Rule 24 CPC. Trial court therefore, in my opinion, was justified in decreeing the suit for possession and mesne profits."
However the Hon'ble Supreme Court has disagreed with the aforesaid reasoning, as highlighted above. The relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
ANIL
CHANDHEL
Sagar Vs. Deshraj Page No. 28 of 32 Digitally signed
by ANIL
Civil DJ No. 613264/2016 CHANDHEL
Date: 2024.06.06
17:09:44 +0530
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i) Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors. : 2018:INSC:578.
(ii) Balram Singh v. Kelo Devi : 2022:INSC:10111.
(iii) M/S Paul Rubber Industries Private Limited v.
Amit Chand Mitra: 2023:INSC:8542.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the Respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.
14. In case the Respondent wanted to evict the Appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the Appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in ANIL CHANDHEL Sagar Vs. Deshraj Page No. 29 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:49 +0530 the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
9.5.4. Therefore the Hon'ble Supreme Court has laid down that the unregistered documents cannot be made basis of filing the suit for possession. The Plaintiff does not state expressly in the plaint or evidence that he has filed the suit as an attorney of the previous owner, with her permission to evict the Defendant. Moreover in the present case, the Plaintiff has failed to prove the title of the predecessor in interest and his predecessor in interest is at best a co-owner of the suit property, alongwith the Defendant. The Plaintiff has admitted in the cross-examination that he has never been in possession of the suit property. Therefore, the case as set up in the pleadings, about the Defendant, being a licencee and his sister being a tenant in the ground floor is under shadow of doubt.
9.5.5. Even assuming that the documents have been executed by the Defendant's mother in favour of the Plaintiff, the same are unregistered and thus, do no confer/convey any legal title in favour of the Plaintiff. Therefore, in terms of the law laid down by the Hon'ble Supreme Court of India in Shakeel Ahmed (Supra), the suit for possession, solely on the basis of aforesaid unregistered documents, on the facts stated in the plaint, would not be maintainable, irrespective of the nature of ANIL CHANDHEL Sagar Vs. Deshraj Page No. 30 of 32 Civil DJ No. 613264/2016 Digitally signed by ANIL CHANDHEL Date: 2024.06.06 17:09:55 +0530 possession of the Defendant. Moreover, the Defendant in the present case is a co-owner of the suit property and therefore, cannot be evicted, by filing a suit for possession. Thus, the suit for possession, filed by the Plaintiff is not maintainable. The Issue No.5 is accordingly decided against the Plaintiff and in favour of the Defendant.
9.5 Issue No. 6 Whether the Plaintiff is entitled for decree of permanent injunction thereby restraining Defendant from creating third party interest in any manner in the suit property? OPP.
9.5.1 Since the Plaintiff is not entitled to any decree for possession, therefore, the Plaintiff is not entitled to any decree for permanent injunction. The Issue No.6 is decided against the Plaintiff and in favour of the Defendant.
9.6 Issue No. 7 Whether Plaintiff is entitled for mesne
profit @ Rs. 12,000/- per month from
the date of institution of suit till
handling over of the possession? OPP.
9.6.1. Since the Plaintiff is not entitled to any decree for possession, therefore, the Plaintiff is not entitled to any decree for mesne profits. The Issue No.7 is decided against the Plaintiff and in favour of the Defendant.
ANIL
CHANDHEL
Sagar Vs. Deshraj Page No. 31 of 32
Digitally signed
Civil DJ No. 613264/2016 by ANIL
CHANDHEL
Date: 2024.06.06
17:10:00 +0530
10. Relief:
Since the Issue No.5 ,6 and 7 have decided against the Plaintiff, therefore, the Plaintiff is not entitled to the prayers in the suit. The suit of the Plaintiff is dismissed. The Decree sheet be drawn accordingly.
Digitally signed by ANIL CHANDHEL ANIL Date:
CHANDHEL 2024.06.06 17:10:11 +0530 Announced in the open Court (ANIL CHANDHEL) today on 6th of June, 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/06.06.2024 Sagar Vs. Deshraj Page No. 32 of 32 Civil DJ No. 613264/2016