Delhi District Court
All Permanent Residents Of vs Smt. Sulakshana(Since Deceased) on 31 October, 2019
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/607859/2016
SHRI BALRAJ SOOD(SINCE DECEASED)
through His Legal Representatives
(A) SMT. SANTOSH SOOD
W/o Late Shri Balraj Sood
(B) SHRI ANIL KUMAR SOOD,
S/o late Shri Balraj Sood
(C) SHRI ARUN KUMAR SOOD
S/o Late Shri Balraj Sood
All permanent residents of
45, Babar Road,
Bengali Market,
New Delhi-110001. .......Plaintiffs
Vs.
1. SMT. SULAKSHANA(Since deceased)
W/o Late Shri Kundan Lal
(Deleted vide order dated 10.01.1995)
2. SHRI SURINDER KUMAR,
Son of Late Shri Kundan Lal,
3. MRS. SAROJ,
D/o Late Shri Kundan Lal,
4. MRS. SUDESH,
D/o Late Shri Kundan Lal,
All residents of 19, Shivaji
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 1/44
Park, Road No.-2, Mumbai.
5. UNION OF INDIA,
Through Secretary,
Land and Development Office,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
6. SMT PRAKASH KAUR(SINCE DECEASED)
through her legal heirs:-
(I)SHRI BALWANT SINGH
S/o Late Shri Fauza Singh
(husband of late Smt Prakash Kaur)
R/o 305/2, Farm House,
Chatterpur, Tehsil Mehrauli,
New Delhi.
(II) SMT KAMALJIT KAUR
W/o Sh. Sukhminder Singh
(daughter of late Smt Prakash Kaur)
C/o Shri Balwant Singh,
R/o 305/2, Farm House,
Chatterpur, Tehsil Mehrauli,
New Delhi.
(III) SMT KARINDEEP KAUR
(daughter of late Smt Prakash Kaur)
R/o 305/2, Farm House,
Chatterpur, Tehsil Mehrauli,
New Delhi.
(IV) SHRI KARANDHIR SINGH
S/o Shri Balwant Singh
(Son of late Smt Prakash Kaur)
R/o 305/2, Farm House,
Chatterpur, Tehsil Mehrauli,
New Delhi. ...........Defendants
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 2/44
Date of institution :- 18.01.1993
Order Reserved On :- 19.10.2019
Date of Decision :- 31.10.2019
For Plaintiffs:- Mr. H.L. Tikku, Senior Advocate.
For Defendant no.-1 to 4:- None.
For defendant no.-5:- Mr. R.S. Dhaka, Advocate.
For defendant no.-6:- Mr. B.D. Kaushik & Mr. Vishal Singh,
Advocate(s).
SUIT FOR DECLARATION, MANDATORY INJUNCTION
AND PERPETUAL INJUNCTION
JUDGMENT
Vide this judgment, I shall decide the present suit filed by plaintiff against defendants seeking declaration, mandatory injunction and perpetual injunction qua immovable property i.e. property bearing no. 45, Babar Road, built on lease hold plot no.-88, Block No. 205-C, measuring 287.5 sq. yds., Bengali Market, New Delhi-110001.
A. CASE OF PLAINTIFF IN BRIEF:-
1. According to plaintiff, lease of said plot was granted by The Governor General in Council (now President of India) through office of L&DO vide deed dated 18.10.1941 supplemented by Deed dated 07.10.1942. The said property was mutated in the name of Lala Nand Lal and Lala Hira Lal. According to plaintiff, he is sole successor to estate possessed by Lala Nand Lal in said property.Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 3/44
2. According to plaintiff, Lala Hira Lal co-lessee of said property expired on 26.11.1964 demising his estate in said property in favour of his brother namely Sh. Kundan Lal Sood. Sh. Kundan Lal Sood succeeded to interests of Lala Hira Lal in said property.
3. Plaintiff has further claimed that he is residing in said property since birth. Sh. Kundan Lal Sood who always stayed at Bombay entered into an agreement of sale dated 08.02.1979 with plaintiff. Under said agreement, all rights, title, interest acquired by Sh. Kundan Lal Sood in said property were agreed to be transferred absolutely to plaintiff for a settled consideration of Rs.60,000/- only. On execution of the agreement, a sum of Rs.30,000/- was received by Sh. Kundan Lal Sood from plaintiff i.e. Rs.10,000/- on account of earnest money and Rs.20,000/- on account of part payment. Balance amount was receivable in installments commencing from 01.08.1979, 01.11.1979, 01.02.1980 and 01.05.1980. Last installment of Rs.6000/- receivable by Sh. Kundan Lal Sood consisted of Rs.5000/- on account of stamp duty charges and Rs.1000/- as balance consideration receivable on execution and registration of deed in favour of plaintiff. Physical possession was already with plaintiff and only symbolic possession of property with reference to title possessed by Kundan Lal Sood in the said property was taken over by plaintiff with execution of such agreement.
4. According to plaintiff, ever since entering into the above mentioned agreement plaintiff is in exclusive use, possession and enjoyment of the above mentioned property as an owner. Plaintiff has Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 4/44 attended to all improvements, caused and carried in the property at his expense. Whole of property tax, lease money for the property althroughout has been paid by plaintiff. Electricity and water connection installed in the property are in the name of plaintiff. Ration card issued in respect of said property is held in the name of family members of plaintiff.
5. According to plaintiff, Sh. Kundan Lal Sood filed one suit bearing no.692/1980 impleading plaintiff as the sole defendant. Through said suit, Sh. Kundan Lal Sood alleged cancellation of agreement to sell dated 07.02.1979 and prayed for partition of the said property by metes and bounds and also for recovery of possession of share held by him in said property as successor in interest of Lala Hira Lal. No steps in terms of the agreement were taken for alleged cancellation. The said suit was contested by plaintiff on various grounds including Section 53A of The Transfer of Property Act 1882. The said suit was dismissed by Ld. ADJ vide order dated 17.09.1985 under Order 9 Rule 7 CPC. Even application for restoration of said suit filed under Order 9 Rule 4 CPC was also dismissed on 05.12.1985. The said proceedings have attained finality.
6. According to plaintiff, Sh. Kundan Lal expired on 09.11.1985. Plaintiff continued to exercise control and possession over said property thereafter as well without any obstruction from defendants. By virtue of doctrine of part performance under Section 53A of Transfer of Property Act, rights acquired by plaintiff though beneficial and equitable are Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 5/44 lawfully exercisable as ownership rights.
7. According to plaintiff, in April 1992, the Central Government published and brought out scheme of conversion of lease hold rights into freehold rights on charging stated sum by way of premium. Scheme covered the abovementioned property as well. Plaintiff approached defendants and requested them to join in submitting conversion papers. Plaintiff even sent such papers to defendants for signing the same alongwith affidavits and declarations required to be submitted under the scheme with appropriate authority. Defendants no.-1 and 2 received the papers on behalf of other defendants and assured to send the papers duly filled in and accompanied by requisite documents.
8. According to plaintiff, he again approached defendants no.-1 & 2 on 20.12.1992 as scheme was to close by 31.03.1993. Plaintiff had requested defendants for the same as the office of 'Lessor' (President of India) insisted for their consent since lease rights continued to be reflected in the name of Sh. Kundan Lal Sood as successor-in-interest of Sh. Hira Lal i.e. the recorded co-lessee of the property.
9. According to plaintiff, defendants no.-1 & 2 for themselves and also on behalf of defendants no.-3 & 4 for the first time threatened to deny plaintiff's abovementioned legal rights in the property by alleging their interest in said property as legal heirs/successors- in-interest of deceased Sh. Kundan Lal Sood on the plea that no deed of conveyance was executed by late Sh. Kundan Lal Sood and registration thereof is yet Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 6/44 to take place. The defendants also threatened to interfere with plaintiff's use, possession and enjoyment of said property.
10. According to plaintiff, mutation of 2/3rd share in said property was carried out by defendant no.-5 in favour of defendant no.-6. However, the same is bad in law and facts and is liable to be declared null and void on following grounds:-
(A) Because Sh. Kundan Lal Sood was not the owner of 2/3rd undivided share in the suit property and had no right or authority to execute the alleged Will.
(B) Because Sh. Kundan Lal Sood had entered into an agreement to sell dated 08.02.1979 with plaintiff and had put plaintiff in possession of said property as part performance of the agreement and after receiving the sale consideration, he had no right to deal with or to make any Will in respect to said property.
(C)Because the Will dated 28.06.1980 allegedly executed by Sh. Kundan Lal Sood is forged and fabricated and not genuine. (D) Because defendant no.-5 acted arbitrarily, illegally and in collusion with defendant no.-6 in mutating the 2/3rd share in the suit property in favour of defendant no.-6 without following the principles of natural justice.
11. According to plaintiff, the rights possessed by him in said property are beneficial, equitable ownership rights and defendants have threatened to deny said rights. Defendants actions and inactions are wholly untenable and illegal. Plaintiff is entitled to relief of declaration as Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 7/44 prayed for and also for consequential relief i.e. defendants be restrained from disputing plaintiff's aforesaid rights and claims.
12. Alternatively, defendants no.-1 to 4 are now obligated to execute the deed of conveyance in pursuance to agreement to sell, for effecting absolute transfer of the rights left in the office of lessor in the name of Sh. Kundan Lal Sood in the property in question, in favour of plaintiff by conveying them under a registered instrument. Plaintiff has always been ready and willing to perform his part of the obligation though the plaintiff is not to perform any further obligation under the agreement to sell. The balance amount of installment under the agreement to sell was paid by plaintiff to Sh. Kundan Lal Sood(now deceased) vide DD no.117674 dated 07.07.1980. If such DD is not encashed by Late Sh. Kundan Lal Sood then plaintiff is ready and willing to pay the same. Under the doctrine of part performance it is defendant's obligation to join in execution of deed of conveyance. However, the defendants have denied to perform their part of the obligation.
13. According to plaintiff, the conversion policy of Central Government allowing conversion of lease hold rights into free hold rights covers the said property and defendants are obligated to join plaintiff in their capacity as successor-in-interest of the recorded co- lessee. Defendants' such obligation arises out of contract as well as law. By refusing to join plaintiff in seeking conversion of lease hold rights in the property, defendants are committing breach of obligation on their part and their contumacious action in not joining plaintiff, entitles Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 8/44 plaintiff to have commissioning of breach on their part prevented, by issue of injunction to have the same performed.
14. According to plaintiff, defendants are estopped from interfering in plaintiff's use, possession and enjoyment of property as owner. Defendants' obligation to enable plaintiff exercise such right in the property arise out of contract performed by defendants predecessor. Defendants have threatened to invade upon plaintiffs such rights. Defendants with intent to invade upon plaintiffs legal rights have threatened to approach the office of lessor for mutation of lease rights in the property by framing themselves or a third person as successor of late Sh. Kundan Lal and by suppressing abovestated transaction with plaintiff. There exists no standard for ascertaining the damage likely to be caused by defendants threatened action. Compensation in money does not afford adequate relief to plaintiff. Obtaining of injunction as prayed is necessary to avoid multiplicity of litigation. According to plaintiff, in view of defendants' acts, action and inactions, he is left with no alternative but to seek indulgence of the Court by way of present suit for following reliefs:-
(A) A decree of declaration in favour of plaintiff and against defendants thereby declaring that all beneficial, equitable and enforceable rights over said property including the ones recorded in the office of lessor in the name of Hira Lal, Kundan Lal, vest in the plaintiff absolutely as owner thereof. By way of consequential relief, plaintiff has also prayed for decree of injunction thereby restraining defendants from interfering or disputing plaintiff's above said title and claims in said property.Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 9/44
(B) Alternatively, for directions to defendants to execute deed of conveyance and to admit the execution of executed deed of conveyance, in respect to obligation remaining unexecuted/unperformed by Sh.
Kundan Lal Sood by way of specific performance to agreement to sell dated 08.02.1979 already performed under Section 53A of The Transfer of Property Act.
(C ) For a decree of declaration declaring that the mutation carried out by defendant no.-5 in favour of defendant no.-6 with respect to 2/3rd share of the suit property vide letter dated 13.04.1993 is null, void and non-est. (D) For a decree of mandatory injunction directing the defendants to join/associate in the seeking of conversion of lease rights in respect of said property and to do all attending acts until obtaining conversion of lease rights into freehold rights under the policy of Central Government. (E) For a decree of perpetual injunction in favour of plaintiff and against defendants thereby restraining them from interfering in plaintiff's use, possession and enjoyment of said property and from obtaining mutation of rights in the property in their name or the name of third person.
B. CASE OF DEFENDANT NO.-1 TO 4:-
1. Defendant no.-1 i.e. Ms Sulakshna Sood expired in the year 1994.
Vide Order dated 10.01.1995, name of defendant no.-1 was ordered to be deleted from array of parties as her legal heirs i.e. defendants no.-2 to 4 were already on record. It is pertinent to mention that no written statement was filed by defendant no.-1.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 10/442. Defendant no.-2 to 4 were proceeded exparte vide order dated 02.05.1996. It is also pertinent to mention that even defendant no.-2 to 4 failed to file written statement inspite of service.
C. CASE OF DEFENDANT NO. 5:-
1. Defendant no.-5 i.e. L&DO in its written statement stated that file of said property is missing. It is further stated that vide office letter no.-
L-I-9/205-C(88)/78 dated 21.08.1978, said property stood jointly and severally in the name of (1). Balraj Sood and (2). Sh. Kundan Lal. In its written statement, defendant no.-5 admitted that co-lessee i.e. Sh. Kundan Lal expired on 09.11.1985. It is further admitted that Central Government brought out a scheme for conversion of lease hold rights into freehold charging conversion fee.
2. According to defendant no.-5, Sh. Balraj Sood(plaintiff) furnished a photocopy of the registered agreement to sell executed on 08.02.1979 by Sh. Kundan Lal in his favour. The said agreement to sell was furnished alongwith letter dated 10.07.1992 wherein it is also mentioned that Sh. Kundan Lal, before his death executed one Will in favour of Smt. Prakash Kaur (defendant no.-6). In said letter, it is further stated by Sh. Balraj Sood that the property in question is a disputed property and without an order of the Court, the property may not be substituted in the name of Smt. Prakash Kaur (beneficiary of the Will) or in the name of legal heirs of Sh. Kundan Lal.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 11/443. According to defendant no.-5, Smt Prakash Kaur(defendant no.-6) requested for substitution vide her letter dated 29.10.1991. She also furnished the required documents and complied with all the formalities prescribed for carrying out substitution. The terms for carrying out the substitution alongwith ground rent etc. were communicated to the beneficiary and after receipt of full payment, share of Sh. Kundan Lal was transferred in favour of Smt Prakash Kaur vide office letter dated 13.04.1993 and copy thereof was also sent to Balraj Sood. Hence, the share of Sh. Kundan Lal stands substituted in the name of Smt. Prakash Kaur.
D. CASE OF DEFENDANT NO.-6:-
1. Defendant no.-6 i.e. Smt Prakash Kaur was added/impleaded as defendant in present suit vide order dated 10.01.1995. Defendant no.-6 in her written statement has taken some preliminary objections i.e. plaintiff has no locus standi to file present suit. Plaintiff has not come to court with clean hands and has deliberately concealed material as well as true facts and the suit is barred under Section 41 (h) of The Specific Relief Act. The property in dispute has already been transferred in her name and therefore, the present suit is not maintainable. The suit has not been properly valued for the purposes of Court Fee and jurisdiction.
2. On merits, defendant no.-6 in her written statement admitted that said property was originally owned by Lala Nand Lal and Lala Hira Lal.
Defendant no.-6 also admitted that Lala Hira Lal expired on 26.11.1964 and his estate devolved upon his brother i.e. Sh. Kundan Lal Sood. Sh.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 12/44Kundan Lal Sood was the owner of 2/3rd portion of said property and Sh. Balraj Sood was the owner of 1/3rd portion of said property.
3. According to defendant no.-6, plaintiff persuaded Sh. Kundan Lal Sood to sell his share/portion in said property to him. Consequently, an agreement to sell dated 08.02.1979 was entered into between plaintiff and Sh. Kundan Lal Sood whereby Sh. Kundan Lal Sood agreed to sell said property/his share for a total sale consideration of Rs. 60,000/- on the terms and conditions as mentioned in said agreement i.e. dated 08.02.1979. As Sh. Kundan Lal Sood was residing at Bombay, he executed one general power of attorney in favour of Sh. Anil Kumar Sood S/o Sh. Balraj Sood to take necessary steps for completion of sale transaction. Plaintiff intentionally and deliberately committed breach of the agreement and did not perform his part of the contract. Plaintiff did not pay the balance installments in terms of the said agreement and consequently vide notice dated 27.06.1980, Sh. Kundan Lal Sood revoked and cancelled the said sale agreement. The said notice was sent through Sh. C.P. Malik, Advocate and the same was duly received by plaintiff. Sh. Kundan Lal Sood further revoked and cancelled the power of attorney by virtue of notice dated 27.06.1980 addressed to Sh. Anil Kumar Sood. The agreement to sell was cancelled by Sh. Kundan Lal Sood and therefore the present suit is not maintainable. The plaintiff was required to pay installments towards the sale consideration in respect of 2/3rd Share of Sh. Kundan Lal Sood in said property but he failed to do so.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 13/444. Defendant no.-6 in her written statement has denied the other claims of plaintiff i.e. being in exclusive possession of said property as owner. Defendant no.-6 also denied that plaintiff made all the improvements and also carried out the repairs etc. According to defendant no.-6, Sh. Kundan Lal Sood was the owner of 2/3rd share/portion in said property. During his lifetime, Sh. Kundan Lal Sood executed a Will bequeathing his share in said property in favour of defendant no.-6. After death of Sh. Kundan Lal Sood on 18.11.1985, defendant no.-6 became the owner of 2/3rd portion of said property. Defendant no.-6 also moved an application seeking mutation of said property in her name in the record of L&DO. Legal heirs of late Sh. Kundan Lal had executed affidavit admitting that defendant no.-6 is the owner of 2/3rd share and they have no objection in mutation and substitution of name of defendant no.-6 in the record of L&DO. Consequently, mutation was effected in favour of defendant no.-6 on 13.04.1993 and as such the present suit is barred under Section 36 of The Displaced Persons Compensation and Rehabilitation Act because the order passed by L&DO regarding mutation and substitution of defendant no.-6 in place of Late Sh. Kundan Lal Sood is final and jurisdiction of Civil Court is barred.
5. According to defendant no.-6, the result of dismissal of earlier suit filed by Sh. Kundan Lal Sood is that the property in question remained joint. After death of Sh. Kundan Lal Sood, defendant no.-6 inherited his share to the extent of 2/3rd of the property in question on the basis of the Will which was duly executed and accepted by the Legal Heirs of Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 14/44 deceased Sh. Kundan Lal Sood.
6. According to defendant no.-6, after death of Sh. Kundan Lal Sood, she became the absolute owner of 2/3 rd portion of property in question and mutation was also affected in the record of L&DO on 13.04.1994. Vide letter dated 13.04.1994, name of defendant no.-6 has been substituted as co-lessee to the extent of 2/3rd undivided share and the name of plaintiff has been substituted as co-lessee to the extent of 1/3rd undivided share and the present suit is not maintainable. Defendant no.-6 has further claimed that plaintiff is trying to grab her share in the property in question.
7. According to defendant no.-6, mutation has been properly affected in her name and the order passed by competent authority is final and the same cannot be challenged in Civil Court. Defendant no.-6 has further claimed that the agreement to sell dated 08.02.1979 is a forged and fabricated document and plaintiff has failed to disclose the steps which he had taken for enforcement of said agreement.
8. According to defendant no.-6, Will dated 28.06.1980 was duly executed and legal heirs of late Sh. Kundan Lal had already filed affidavit (s) before the L&DO admitting the genuineness of the Will. Plaintiff is owner to the extent of 1/3rd share in said property and the remaining 2/3rd share in the said property is owned and possessed by defendant no.-6.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 15/449. Defendant no.-6 in her written statement has denied all the allegations leveled against her as well as other defendants, by plaintiff in his plaint and has prayed for dismissal of present suit.
E. REPLICATION Plaintiff has filed replication qua written statement filed by defendant no.-5 as well as defendant no.-6 reiterating therein contents of plaint and denying the version of defendant no.-5 as well as defendant no.-6.
F. ISSUES After completion of pleadings, the following issues were framed on 02.05.1996 :-
(1)Whether the plaintiff has no locus to institute the suit?OPD (2) Whether the plaint is not valued for purpose of Court fee and jurisdiction in accordance with law?OPD (3) Whether the plaintiff complied with the terms of the agreement dated 8-2-1979 and fulfilled his obligations thereunder? OPP (4) Whether the cancellation of agreement dated 8-2-1979 by notice dated 27-6-1980 sent on behalf of Late Sh. Kundan Lal Sood was valid and justified?OPD (5) Whether the suit by the plaintiff is barred the plaintiff having failed to seek specific performance of the agreement dated 8-2-1979 within time?OPP (6) Whether the present suit is barred under Section 36 of the Displaced Persons Compensation and Rehabilitation Act?OPD Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 16/44 (7) Whether the mutation of the property by the L&DO in favour of defendant no.-6 and the genuineness of the will as admitted by defendant no.-1 to 4, can be challenged in these proceedings?OPD (8) Relief On 10.04.2001, following additional issues were framed:-
(7)(a) Whether defendant no.-6 proves that he has 2/3rd share in the suit property? If yes, what is the effect?
(7)(b) Whether defendant no.-6 proves that deceased Kundan Lal Sood was co-lessee in respect of the suit property to the extent of 2/3rd share? If yes, what is the effect?
G. EVIDENCE LED BY PLAINTIFF:-
1. In support of their case, plaintiff have produced and examined following nine witnesses:-
(1) PW-1 i.e. Sh. Balraj Sood(Original plaintiff). (2) PW-2 i.e. Sh. Anil Sood S/o Balraj Sood.
(3) PW-3 i.e. Sh. Arun Sood S/o Balraj Sood.
(4) PW-4 i.e. Sh. Mohan Lal, Customer Care Officer, PNB Connaught Place, New Delhi.
(5) PW-5 i.e. Sh. Manoj Kumar Dahiya, LDC Record Room Sessions, Tis Hazari Court, Delhi.
(6) PW-6 i.e. Sh. Paramjeet Singh, Head Assistant, Tax Branch (Accounts) NDMC, Palika Kendra, Sansad Marg, New Delhi-110001. (7) PW-7 i.e. Constable Ajay Kumar, PS Mathura Gate, Bharatpur, Rajasthan(wrongly numbered as PW-4).
(8) PW-8 i.e. Mr. Satyapal, Record Attendant, Department of Delhi Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 17/44 Archives, New Delhi(wrongly numbered as PW-5). (9) PW-9 i.e. Sh. Gopal Krishan Sood S/o Sh. Shankar Das Sood.
2. PW-1 filed his evidence by way of affidavit reiterating therein his case. PW-1 also relied upon following documents:-
(1) Ex.PW-1/1 i.e. Original Perpetual Lease Deed dated 26.08.1939 executed between The Governor General in Council (Lessor) & Mr. B.N. Bhambri, Secretary, Oriental Government Security Life Assurance Company, New Delhi(Lessee) alongwith Site Plan.
(2) Ex.PW-1/2 i.e. Original Sale Deed dated 18.10.1941 executed by Sh.
B.N. Bhambri in favour of Lala Nand Lal and Lala Hira Lal (purchasers to the extent of 1/3rd and 2/3rd share respectively).
(3) Ex.PW-1/3 i.e. Original Supplemental Deed dated 07.10.1942 executed between Mr. B.N. Bhambri, Lala Nand Lal and Lala Hira Lal.
(4) Ex.PW-1/4 i.e. Letter dated 21.08.1978 written by Officer of L&DO to Sh. Balraj Sood and Sh. Kundan Lal.
(5) Ex.PW-1/5 i.e. Mutation Letter dated 20.07.1979 vide which property was mutated in the name of Balraj Sood and Kundan Lal.
(6) Ex.PW-1/6 i.e. Notice dated 25.03.1990 under Section 67-A of The Punjab Municipal Act of 1911 addressed to Balraj Sood.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 18/44(7) Ex.PW-1/7 i.e. Receipt vide which Tax was paid to NDMC by Balraj Sood qua property in question.
(8) Ex.PW-1/7A i.e. Receipt vide which Tax was paid to NDMC by Balraj Sood qua property in question.
(9) Ex.PW-1/8 i.e. Agreement to sell dated 08.02.1979 executed between Kundan Lal Sood and Balraj Sood.
(10) Ex.PW-1/9 i.e. Letter dated 21.07.1979 written by Balraj Sood.
(11) Ex.PW-1/10 i.e. Letter dated 28.07.1979 written by Balraj Sood.
(12) Ex.PW-1/11 i.e. Payment receipts issued by NDMC pertaining to Deposit of Property Tax.
(13) Ex.PW-1/12 i.e. Photocopy of Passbook of plaintiff pertaining to PNB Janpath.
(14) Ex.PW-1/13 i.e. Letter dated 13.02.1984 written by Balraj Sood regarding payment of ground rent in respect of property in question.
(15) Ex.PW-1/14 i.e. Certified copy of plaint filed by Kundan Lal Sood against Balraj Sood in High Court of Delhi seeking partition and possession of property in question.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 19/44(16) Ex.PW-1/15 i.e. Certified Copy of written statement filed by Balraj Sood in the aforesaid case.
(17) Ex.PW-1/16 i.e. Certified Copy of ordersheet dated 17.09.1985 vide which said suit was dismissed in default by Sh. G.S. Dhaka the then Ld. ADJ.
(18) Ex.PW-1/17 i.e. Certified copy of application filed by Kundan Lal Sood under Order 9 Rule 4 CPC in aforesaid suit.
(19) Ex.PW-1/18 (Colly) i.e. Copy of Ordersheets of aforesaid case.
(20) Ex.PW-1/19 i.e. Letter written by Sh. Balraj Sood to Manager, Punjab National Bank, Worli, Bombay.
(21) Ex.PW-1/20 i.e. reply received by Sh. Balraj Sood from Manager Punjab National Bank, Worli, Bombay.
(22) Mark X i.e. Copy of Bank Draft dated 07.07.1980 issued by Punjab National Bank, Bengali Market, New Delhi for a sum of Rs.24,000/- in favour of Kundan Lal(mentioned as Ex.PW-1/21 in evidence by way of affidavit of PW-1).
(23) Ex.PW-1/22 i.e. Copy of Police Report lodged at Police Station, Mathura Gate, District Bharatpur, Rajasthan.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 20/443. Evidence by way of affidavit of PW-1 was tendered in evidence on 21.10.2005. However, PW-1 was neither cross examined on behalf of defendant no.-5 i.e. L&DO nor on behalf of defendant no.-6 i.e. Smt Prakash Kaur inspite of being given an opportunity for the same. Thereafter, an application was filed on behalf of defendant no.-6 for recalling of PW-1 for his cross examination. However, PW-1 expired before disposal of said application and therefore, PW-1 could not be cross examined by/on behalf of defendant no.-5 as well as defendant no.-6.
4. PW-2 i.e. Sh. Anil Sood also filed his evidence by way of affidavit i.e. Ex.PW-2/A. PW-2 also relied upon documents already exhibited as Ex.PW-1/1 to Ex.PW-1/22. PW-2 was cross examined at length by Ld. Counsel for defendant no.-5 and also by Ld. Counsel for defendant no.-6.
5. PW-3 i.e. Sh. Arun Sood also filed his evidence by way of affidavit i.e. Ex.PW-3/A reiterating therein version of plaintiff. PW-3 also relied upon documents i.e. Ex.PW-1/1 to Ex.PW-1/22. PW-3 was also cross examined at length by Ld. Counsel for defendant no.-5 and also by Ld. Counsel for defendant no.-6.
6. PW-4 i.e. Sh. Mohan Lal, Customer Care Officer, Punjab National Bank, Connaught Place, Delhi stated that summoned record has been weeded out being more than eight years old and certificate in this regard is Ex.PW-4/1.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 21/447. PW-5 i.e. Sh. Manoj Kumar Dahiya, LDC, Record Room Sessions, Tis Hazari Courts, Delhi also stated that the summoned record has been weeded out on 16.06.2000 and photocopy of relevant register is Ex.PW- 5/2.
8. PW-6 i.e. Sh. Paramjeet Singh, Head Assistant, Tax Branch (Accounts) NDMC produced certified copy of relevant record, certified by him i.e. Ex.PW-6/1.
9. PW-7 i.e. Constable Ajay Kumar, PS Mathura Gate, Bharatpur, Rajasthan produced attested copy of FIR No.-420/98 PS Mathura Gate under Section 420/120B IPC dated 17.08.1998 i.e. Ex.PW-4/A. Attested copy of final report dated 17.01.1999 is Ex.PW-4/B.
10. PW-8 i.e. Mr. Satyapal, Record Attendant, Department of Delhi Archives produced the summoned record i.e. the agreement to sell dated 08.02.1979 executed between Sh. Kundan Lal Sood and Sh. Balraj Sood i.e. Ex.PW-1/8.
11. PW-9 i.e. Sh. Gopal Krishan Sood filed his evidence by way of affidavit i.e. Ex.PW-9/A. PW-9 was also cross examined by Ld. Counsel for defendant no.-5 and also by Ld. Counsel for defendant no.-6.
H. EVIDENCE LED BY DEFENDANT NO.-1 to 4:-
1. It is reiterated that defendant no.-1 expired in the year 1994 and her name was deleted from array of parties vide order dated 10.01.1995.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 22/44Defendant no.-2 to 4 were proceeded exparte vide order dated 02.05.1996 as they failed to appear in Court inspite of service.
2. In nutshell, no evidence has been led by defendants no.-1 to 4.
I. EVIDENCE LED BY DEFENDANT NO.-5:-
No witness has been produced/examined by defendant no.-5 in support of its case i.e. no evidence has been led by defendant no.-5 to prove its case.
J. EVIDENCE LED BY DEFENDANT NO.-6:-
1. Defendant no.-6 i.e. Smt Prakash Kaur produced and examined following three witnesses in support of her case:-
(1) D6W1 is Sh. Balwant Singh i.e. Husband of Smt Prakash Kaur. (2) D6W2 is Sh. Daljeet Singh i.e. Attesting witness of the Will dated 28.06.1980.
(3) D6W3 is Sh. Surender Singh i.e. Attesting witness of the Will dated 28.06.1980.
No other witness has been produced/examined by defendant no.-6 in support of her case.
2. D6W1 i.e. Sh. Balwant Singh filed his evidence by way of affidavit i.e. Ex.D6W1/A reiterating therein the case of defendant no.-6. D6W1 relied upon following documents:-
A. Ex.D6W1/1 i.e. Power of attorney executed by defendant no.-6 in his favour.Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 23/44
B. Ex.D6W1/2 i.e. Certified copy of Will dated 28.06.1980. C. Ex.D6W1/3 i.e. Mutation Letter dated 13.04.1993.
D6W1 was cross examined at length by Ld. Counsel for plaintiff.
3. D6W2 i.e. Sh. Daljeet Singh also filed his evidence by way of affidavit i.e. Ex.D6W2/1. D6W2 also relied upon said Will i.e. Ex.D6W1/2. D6W2 was also cross examined at length by Ld. Counsel for plaintiff.
4. D6W3 i.e. Sh. Surender Singh also filed his evidence by way of affidavit i.e. Ex.D6W3/1. D6W3 also relied upon said Will i.e. Ex.D6W1/2. D6W3 was also cross examined at length by ld. Counsel for plaintiff.
K. I had heard Ld. Counsel for the plaintiff as well as Ld. Counsel(s) for defendant no.- 6. I have perused the record carefully. I have also perused the written arguments/submissions filed on behalf of plaintiff as well as defendant no.-6. I have also gone through the judgments relied upon by Ld. Counsel(s) for the parties.
Ld. Counsel for plaintiff has relied upon following judgments:-
(1) Vidhyadhar Vs. Manikrao & Anr. 1999(3) SCC 573; (2) Soodershan Lal Maini Vs. Virender Kumar Maini:- 187(2012) DLT 414;
(3) Jaswant Singh Vs. Darshan Singh:- (1992) 102(2) PLR 29; (4) Vaneeta Khanna Vs. Rajiv Gupta & Ors.:- 2015(152) DRJ 684; (5) Vimla Devi Vs. Pushpa Devi & Anr.:- 241(2017) DLT 568;Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 24/44
(6) Kishan Chand Vs. Amar Singh:- RSA No.326 of 1988 decided by Hon'ble High Court of Punjab & Haryana.
(7) Dalmia Cement (Bharat) Ltd. Vs. Hansalaya Properties Ltd. & Ors.:- (2012)ILR4Delhi151;
(8) Shamrao Suryakavansi & Ors. Vs. Prahlad Bhairoba Suryavanshi by LRs & Ors.:- AIR 2002 SC 960 (9) Motor & General Finance Vs. Mahabir Prasad Chaudhary & Ors.:- 83(2000)DLT672 (10) Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. VII(2004) SLT 441 (11) Roop Kumar Vs. Mohan Thedani: (2003) 6 SCC 595; (12) Brahm Prakash Vs. Chando Devi & Ors.:- Manu/DE/4414/2010.
Ld. Counsel(s) for defendant no.-6 have relied upon following judgments:-
(1) Krishan Kumar Birla Vs. Rajinder Singh Lodha (2008) 4 SCC 300;
(2) Vasnanthi Vs. Venugopal (Dead) through Legal Representatives (2017) 4 SCC 723;
(3) Revanasiddayya Vs. Gangamma Alias Shashikala & Anr.: (2018) 1 SC 610;
(4) Chinnaraj Vs. Sheik Davood Nachiar & Ors. AIR 2003 Madras 89;
(5) Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha (2010) 10 SCC 512;
(6) Ahmadsahab Abdul Mulla (2) (Dead) Vs. Bibijan & Ors. (2009) 5 Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 25/44 SCC 462;
(7) Fatehji & Company & Anr. Vs. L.M.Nagpal & Ors. (2015) 8 SCC 390;
(8) N.P. Thirugnanam (Dead) by LRs Vs. Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115;
(9) Pushparani S. Sundaram & Ors. Vs. Pauline Manomani James (deceased) & Ors. (2002) 9 SCC 582;
(10) Rajni Tandon Vs. Dulal Ranjan Ghosh Dastidar & Anr. (2009) 14 SCC 782;
(11) Mohan Lal (Deceased) through His LRs. Kachru & Ors. Vs Mirza Abdul Gaffar & Anr. (1996) I SCC 639 (12) Sardar Govindrao Mahadik & Anr. Vs. Devi Sahai & Ors. (1982) 1 SCC 237.
L. My findings on the issues are as under:-
1. ISSUE NO.-(1):- Whether the plaintiff has no locus to institute the suit?OPD Onus of proving this issue is on defendant no.-6.
Defendant no.-6 in her written statement has taken a preliminary objection that plaintiff has no locus standi to institute the present suit.
Perusal of record and more particularly written statement filed by defendant no.-6 clearly shows that defendant no.-6 in her written statement has merely stated in one line that plaintiff has no locus standi to institute the present suit. Apart from stating so in one line, defendant no.-6 has neither elaborated nor specified as to how plaintiff has no locus standi to maintain the present suit.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 26/44Plaintiff has filed present suit on the basis of an agreement to sell dated 08.02.1979 executed between him and Sh. Kundan Lal Sood qua property in question. In his plaint, plaintiff has stated in detail the bundle of facts and circumstances on the basis of which he has filed the present suit and how cause of action arose in his favour and against defendants. Hence, I find no merits in the aforesaid contention of defendant no.-6 i.e. plaintiff has no locus standi to institute the present suit.
Hence, issue no.-1 is decided in favour of plaintiff and against defendant no.-6.
2. ISSUE NO.-(2):- Whether the plaint is not valued for purpose of Court fee and jurisdiction in accordance with law?OPD Onus of proving this issue is also on defendant no.-6. Defendant no.-6 in preliminary objection no.-4 of her written statement has stated that suit has not been properly valued for the purposes of Court Fees and jurisdiction.
Perusal of amended plaint filed by plaintiff shows that paragraph no.16 of amended plaint is pertaining to valuation of the suit for the purposes of Court Fees and jurisdiction. In para 16 of plaint, plaintiff has stated value for purpose of jurisdiction as well as value for purpose of Court Fees of each/every relief claimed by him separately.
Defendant no.-6 has failed to so as to how valuation made by plaintiff for purpose of Court Fee and jurisdiction is wrong/ incorrect/ improper.
After perusal of amended plaint as a whole and paragraph no.-16 Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 27/44 in particular, I am of the considered view that plaintiff has properly valued the present suit for the purposes of Court Fees as well as jurisdiction.
Hence, issue no.-2 is also decided in favour of plaintiff and against defendant no.-6.
3. ISSUE NO.-(3): Whether the plaintiff complied with the terms of the agreement dated 8-2-1979 and fulfilled his obligations thereunder? OPP Onus of proving this issue is on plaintiff.
In his plaint, plaintiff has stated that Sh. Kundan Lal Sood who always stayed at Bombay entered into an agreement of sell dated 08.02.1979 with him. Under the said agreement all rights, title and interest acquired by Sh. Kundan Lal Sood in place of Lala Hira Lal in said property were agreed to be transferred absolutely for a settled consideration of Rs.60,000/- only. On execution of the agreement a sum of Rs.30,000/- was received by Sh. Kundan Lal Sood from plaintiff i.e. Rs.10,000/- on account of earnest money and Rs.20,000/-on account of part payment. Balance amount was receivable in installments commencing from 01.08.1979, 01.11.1979, 01.02.1980 and 01.05.1980. Last installment of Rs.6000/- receivable by Sh. Kundan Lal Sood consisted of Rs.5000/- on account of stamp duty charges and Rs.1000/- as balance consideration receivable on execution and registration of deed of conveyance in favour of plaintiff. Physical possession was already with plaintiff and only symbolic possession of property with reference to title possessed by Kundan Lal Sood in said property was also taken over Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 28/44 by plaintiff with execution of such agreement. Plaintiff has further claimed that ever since entering into the above said agreement, he is in exclusive use, possession and enjoyment of said property as owner thereof. Plaintiff has attended all the improvements, caused and carried in the property at his expense.
Plaintiff has further claimed that he has always been willing and is still ready and willing to perform his part of the obligation though the plaintiff is not to perform any further obligation under the agreement to sell. The balance amount under the agreement to sell was paid by plaintiff to Sh. Kundan Lal Sood vide DD No.117674 dated 07.07.1980. Plaintiff has further claimed that if such DD is not encashed by Sh. Kundan Lal Sood he is ready and willing to pay the same.
In his evidence by way of affidavit, also plaintiff/PW-1 reiterated the aforesaid facts. Even PW-2 as well as PW-3 have stated so in their evidence by way of affidavit.
The agreement to sell dated 08.02.1979 is Ex.PW-1/8. Perusal of Ex.PW-1/8 shows that the total sale consideration was Rs.60,000/-. Rs.30,000/- was paid by plaintiff to Sh. Kundan Lal Sood at the time of execution of Ex.PW-1/8 vide bank draft no.-001945/10/42 dated 08.02.1979 drawn on Central Bank of India, Bengali Market, New Delhi. Out of said amount of Rs.30,000/- a sum of Rs.10,000/- was paid as earnest money and remaining amount of Rs.20,000/- was paid as part payment towards sale consideration. Vide Ex.PW-1/8, parties agreed that the balance sale consideration of Rs.30,000/- shall be paid in five installments as under:-
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 29/44(1) Rs.6000/- on or before 01.08.1979.
(2) Rs.6000/- on or before 01.11.1979.
(3) Rs.6000/- on or before 01.02.1980.
(4) Rs.6000/- on or before 01.05.1980.
(5) Last installment of Rs.6000/- is to paid in following manner:-
(a) Rs.5000/- to be incurred by Sh. Kundan Lal Sood as expenses for stamp duty, Municipal Tax on the sale deed and Registration Charges;
(b) Balance amount of Rs.1000/- shall be paid to Sh. Kundan Lal Sood at the time of the registration of the sale deed before the sub-registrar of the assurances, New Delhi.
According to Ex.PW-1/8, since Kundan Lal Sood is residing in Bombay, he agreed to execute a special power of attorney in favour of Sh. Anil Kumar Sood(son of Balraj Sood) in order that all steps for the permission under the Urban Land (Ceiling and Regulation) Act 1976 and also permission of the Land and Development Officer for sale of property in question may be taken and pursued properly. It was further agreed that Sh. Balraj Sood will aid and assist Sh. Kundan Lal Sood who is based at Bombay to obtain said permission from the authority concerned. Perusal of Ex.PW-1/8 clearly shows that plaintiff had to pay remaining amount in installments as mentioned above and Sh. Kundan Lal Sood had to take necessary permissions from aforesaid authorities, for obtaining which, plaintiff also undertook to help Kundan Lal Sood.
Plaintiff has claimed that he was always ready and willing to pay the balance amount and also to comply with the terms of the agreement dated 08.02.1979 and to fulfill his obligations thereunder.
However, it is a matter of record that plaintiff had not paid a sum Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 30/44 of Rs.6000/- i.e. first installment to Kundan Lal Sood on or before 01.08.1979. Even second installment of Rs.6000/- was not paid on or before 01.11.1979. Even 3rd installment of Rs.6000/- was not paid on or before 01.02.1980. Even 4th installment of Rs.6000/- was not paid on or before 01.05.1980.
Plaintiff has claimed that he had written two letters i.e. Ex.PW-1/9 and Ex.PW-1/10 dated 21.07.1979 and 28.07.1979 respectively to Kundan Lal Sood. However, no postal receipts or any other document has been filed either by plaintiff/PW-1 or by other witnesses to show/prove that the said letters were infact sent to Sh. Kundan Lal Sood. In absence of any such proof, the aforesaid contention of plaintiff cannot be believed. It is pertinent to mention that defendants have categorically denied of having received any such letters from plaintiff.
Section 16(c) of The Specific Relief Act, 1963 postulates that specific performance of a contract cannot be enforced in favour of person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation (ii) to Section 16(c) of said act lays down that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Section 20(1) of The Specific Relief Act, 1963 lays down that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so but the discretion of the Court is not arbitrary but sound and reasonable Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 31/44 guided by judicial principles.
Hon'ble Supreme Court of India in a case titled as "Vijay Kumar & Ors. Vs. Om Prakash 2018 SCC Online SC 1913" has held that in order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. It was further held that the relief for specific performance is purely discretionary.
In a case titled as "Farzana Ranjan Vs. Preeti Arora (2018) 251 DLT 709" it has been held that in every suit for specific performance, a plaintiff/buyer must prove his readiness and willingness and the same is sine qua non because of Section 16(c) of the Specific Relief Act 1963. It was further held that readiness and willingness has to be a continuous act from the date of entering into the agreement to sell till at least the leading of evidence by the plaintiff in the suit. Section 16(c) of The Specific Relief Act deliberately requires continuous readiness and willingness i.e. continuous financial ability to complete the transactions.
In Farzana's Case(Supra), it was further held that financial capacity has to be proved by means of evidence, especially the documentary evidence, which satisfies the judicial conscience with respect to financial capacity of the buyer. As per Section 16(c) of the Act, every plaintiff in a suit for specific performance must aver and prove that the plaintiff has always been and continues to be ready and willing to perform his part of the contract/agreement to sell. Readiness is financial capacity to go ahead with the agreement to sell and willingness is the intention. In a suit for specific performance, even if there is no defence Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 32/44 of the defendant yet the aspect of readiness and willingness has to be specifically proved by the plaintiff.
In present case, plaintiff has repeatedly stated that he had performed his part of the contract and if Kundan Lal Sood had not accepted the said draft, he is still ready and willing to pay balance sale consideration. It is reiterated that according to agreement to sell in question i.e. Ex.PW-1/8, a sum of Rs.30,000/- was paid by plaintiff to Sh. Kundan Lal Sood at the time of entering into the said agreement and remaining amount of Rs.30,000/- was to be paid in installments as mentioned above. It is also not in dispute that even a single installment was not paid by plaintiff to Sh. Kundan Lal Sood till 07.07.1980. Plaintiff has claimed that he had paid the entire remaining amount of Rs.30,000/- to Kundan Lal Sood vide draft dated 07.07.1980. However, it is also not in dispute that the said draft was not encashed by Sh. Kundan Lal Sood. According to defendant no.-6, said agreement to sell was cancelled by Sh. Kundan Lal Sood vide Notice dated 27.06.1980 sent by him to plaintiff through Sh. C.P. Malik, Advocate. The said notice was duly served upon plaintiff(admitted in para 11 of Ex.PW- 1/15).
In nutshell, according to Ex.PW-1/8 i.e. agreement to sell dated 08.02.1979, plaintiff had agreed to pay remaining amount of Rs.30,000/- in installments. First installment of Rs.6,000/- was to be paid on or before 01.08.1979. Second installment of Rs.6000/- was to be paid on or before 01.11.1979. 3rd installment of Rs.6000/- was to be paid on or before 01.02.1980. 4th installment of Rs.6000/- was to be paid on or before 01.05.1980. However, plaintiff failed to pay even a single Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 33/44 installment till 07.07.1980(date of draft of Rs.30,000/-). Perusal of Ex.PW-1/8 i.e. agreement to sell shows that payment of said installments by plaintiff to Sh. Kundan Lal Sood was not contingent upon performing of any condition by Sh. Kundan Lal Sood. No explanation has come from plaintiff as to why he had not paid the aforesaid four installments to Sh. Kundan Lal Sood. Since plaintiff failed to pay aforesaid installments to Sh. Kundan Lal Sood as per Ex.PW-1/8, plaintiff failed to comply with the terms of agreement dated 08.02.1979 and failed to fulfill his obligation thereunder.
Hence, issue no.-3 is decided against plaintiff and in favour of defendants.
4. ISSUE NO.(4):- Whether the cancellation of agreement dated 8-2-1979 by notice dated 27-6-1980 sent on behalf of Late Sh. Kundan Lal Sood was valid and justified?OPD Onus of proving this issue is also on defendant no.-6. Defendant no.-6 in her written statement has claimed that plaintiff intentionally and deliberately committed breach of the agreement and did not perform his part of the contract. Plaintiff failed to pay the balance installments in terms of the said agreement and consequently vide notice dated 27.06.1980, Sh. Kundan Lal Sood revoked and cancelled the said agreement to sell. The said notice was sent through Sh. C.P. Malik, Advocate and the same was duly received by plaintiff.
In his replication filed qua written statement of defendant no.-6, plaintiff has not specifically stated that he had not received notice dated 27.06.1980. In fact, in Ex.PW-1/15, plaintiff has admitted of having received notice dated 27.06.1980.
Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 34/44However, perusal of record shows that neither defendant no.-6 nor plaintiff has filed copy of said notice dated 27.06.1980 on record.
Section 61 of The Indian Evidence Act 1872 postulates that the contents of documents may be proved either by primary or secondary evidence. Section 62 of said Act lays down that primary evidence means the document itself is produced for the inspection of the Court. Section 63 deals with secondary evidence. Section 64 of said Act lays down that documents must be proved by primary evidence except in the cases mentioned in Section 65 of said Act.
At this stage, it is also pertinent to mention that Section 58 of The Indian Evidence Act, 1872 lays down that the facts admitted need not be proved.
It is reiterated that onus of proving this issue is on defendant no.-6. However, perusal of record clearly shows that defendant no.-6 has neither led primary evidence nor secondary evidence in this regard i.e. to prove notice dated 27.06.1980. Since defendant no.-6 has neither filed nor proved the said notice dated 27.06.1980 or its contents as per law, defendant no.-6 has failed to prove that the cancellation of agreement dated 08.02.1979 by notice dated 27.06.1980 sent on behalf of late Sh. Kundan Lal Sood was valid and justified. The mere fact that plaintiff has admitted of having received notice in question ipso facto does not mean that he has admitted that the agreement dated 08.02.1979 has been validly cancelled. Defendant no.-6 should have placed and proved said notice as per law in order to enable this Court to give any finding on the validity or otherwise of the same. However, defendant no.-6 failed to do so. Since neither the notice has been placed on record by defendant no.-6 Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 35/44 nor its contents have been proved as per law, this Court cannot give any finding as to whether agreement in question has been validly and justifiably cancelled.
Hence, issue no.-4 is also decided in favour of plaintiff and against defendant no.-6.
5. ISSUE NO.-(5):- Whether the suit by the plaintiff is barred the plaintiff having failed to seek specific performance of the agreement dated 8-2- 1979 within time?OPP It appears that due to typographical error, onus of proving this issue has been placed upon plaintiff. In fact, onus of proving this issue is on defendant no.-6 as defendant no.-6 in her written statement has stated that the agreement to sell was cancelled by Sh. Kundan Lal Sood and as such the present suit is wholly incompetent. According to defendant no.- 6, the remedy available with the plaintiff i.e. to file a suit for specific performance of the agreement is barred by time and therefore, the present suit is not maintainable.
Perusal of amended plaint filed by plaintiff shows that plaintiff has prayed for decree of declaration to the effect that all the rights qua property in question vest in him. Alternatively, plaintiff has prayed that defendants be directed to execute deed of conveyance in his favour and to admit the execution of executed deed of conveyance by way of specific performance of agreement to sell dated 08.02.1979 already performed under Section 53A of The Transfer of Property Act. Plaintiff has also prayed for a decree of declaration declaring that mutation carried out by defendant no.-5 in favour of defendant no.-6 qua 2/3rd Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 36/44 share of the suit property vide letter dated 13.04.1993 is null, void and non-est. Plaintiff has also prayed for mandatory injunction as well as perpetual injunction.
In para 15 of amended plaint, plaintiff has stated that cause of action specifically arose on 05.12.1985 when the challenges propounded to agreement to sell were finally terminated by dismissal of suit filed by Sh. Kundan Lal Sood. It further arose in April 1992 when Central Government published policy dispensing with lease system and allowing conversion of lease hold into free hold rights. According to plaintiff, cause of action further arose on 13.04.1993 when defendant no.-5 mutated 2/3rd share in said property in favour of defendant no.-6.
Perusal of plaint filed by plaintiff clearly shows that plaintiff has not filed the present suit merely for specific performance of agreement to sell dated 08.02.1979. The said relief has been claimed by plaintiff in alternate. No doubt the relief of specific performance of agreement to sell dated 08.02.1979 is hopelessly barred by time as plaintiff has filed present suit on 18.01.1993 i.e. after about 14 years of said agreement. As per Article 54 of Limitation Act the limitation period for specific performance of contract is three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused.
Plaintiff has relied upon Ex.PW-1/14 i.e. plaint of case titled as Kundan Lal Sood Vs. Balraj Sood. In para 11 of Ex.PW-1/14, Balraj Sood has stated that by means of letter dated 27.06.1980 addressed by Sh. C.P. Malik, Advocate, he terminated the agreement for sale and called upon defendant i.e. Sh. Balraj Sood to deliver back the vacant Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 37/44 possession of the property to him. In corresponding para of his written statement i.e. Ex.PW-1/15, Sh. Balraj Sood stated that no reply to the notice dated 27.06.1980 was sent as the notice itself is illegal, uncalled for and invalid. Hence, receipt of said notice i.e. dated 27.06.1980 is admitted by plaintiff. The limitation period for filing suit for specific performance of agreement to sell dated 08.02.1979 started w.e.f. 27.06.1980 as no date for completion of transaction is mentioned in agreement to sell dated 08.02.1979. The period of three years as envisaged by Article 54 of The Limitation Act 1963 expired on 27.06.1983. The present suit has been filed by plaintiff on 18.01.1993 i.e. about ten years after the expiry of limitation period for filing the same qua relief of specific performance of agreement to sell dated 08.02.1979.
It is reiterated that plaintiff has not filed the present suit merely for specific performance of agreement to sell dated 08.02.1979 and has prayed for other reliefs also and more particularly on the basis of Section 53A of Transfer of Property Act. Hence, the present suit in totality is not barred by limitation. The other reliefs, more particularly relief pertaining to declaration qua mutation in favour of defendant no.-6 carried out by defendant no.-5 qua 2/3rd portion of property in question vide letter dated 13.04.1993, are within limitation.
Hence, issue no.-5 is decided in favour of plaintiff and against defendant no.-6.
6. ISSUE NO.-(6):- Whether the present suit is barred under Section 36 of the Displaced Persons Compensation and Rehabilitation Act?OPD Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 38/44 Onus of proving this issue is on defendant no.-6.
In her written statement, defendant no.-6 has stated that mutation qua property in question was effected in her favour on 13.04.1993 and as such the present suit is barred under Section 36 of The Displaced Persons Compensation and Rehabilitation Act because the order passed by the L&DO regarding mutation and substitution of her name in place of deceased Sh. Kundal Lal Sood is final and the jurisdiction of Civil Court is barred.
Section 36 of The Displaced Persons (Compensation and Rehabilitation) Act, 1951 is being reproduced herein for the sake of convenience and ready reference:-
Section 36. Bar of Jurisdiction:- Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Though defendant no.-6 in her written statement has stated that present suit is barred under Section 36 of said Act however, defendant no.-6 has neither pleaded nor shown as to how said Act is applicable to the facts and circumstances of the present case. Perusal of said Act shows that it was enacted to provide for the payment of compensation and rehabilitation grants to displaced persons and for matters connected therewith. Section 2(b) of said Act defines "displaced person". Perusal of written statement filed by defendant no.-6 shows that defendant no.-6 Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 39/44 has nowhere stated/claimed that she is a displaced person.
Defendant no.-6 has miserably failed to show as to how said Act is applicable in the present matter. Since defendant no.-6 has failed to show that the said Act is applicable in the present matter, I find no merits in this contention of defendant no.-6.
Hence, issue no.-6 is also decided in favour of plaintiff and against defendant no.-6.
7. ISSUE NO.-(7):- Whether the mutation of the property by the L&DO in favour of defendant no.-6 and the genuineness of the will as admitted by defendant no.-1 to 4, can be challenged in these proceedings?OPD Onus of proving this issue is on defendant no.-6.
In her written statement, defendant no.-6 has stated that mutation of the property by the L&DO in her favour and the genuineness of the Will as admitted by defendant no.-1 to 4, cannot be challenged in these proceedings.
However, defendant no.-6 has not elaborated/specified as to how the same cannot be challenged in present suit. Defendant no.-6 has failed to specify whether this Court lacks territorial, pecuniary or subject matter jurisdiction to try the present suit. Defendant no.-6 even failed to point out any bar against the plaintiff for filing the present suit for aforesaid reliefs.
Since defendant no.-6 has neither elaborated nor specified as to how mutation of property by the L&DO in favour of defendant no.-6 and genuineness of the Will cannot be challenged by plaintiff in these Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 40/44 proceedings, defendant no.-6 has failed to prove said issue in her favour.
Hence, issue no.-7 is also decided in favour of plaintiff and against defendant no.-6.
8. ISSUE NO.-(7)(A):- Whether defendant no.-6 proves that he has 2/3rd share in the suit property? If yes, what is the effect?
And ISSUE NO.-(7)(B):- Whether defendant no.-6 proves that deceased Kundan Lal Sood was co-
lessee in respect of the suit property to the extent of 2/3rd share? If yes, what is the effect?
The onus of proving aforesaid two issues is upon defendant no.-6. The aforesaid two issues are taken up together as the same are connected/linked.
It is pertinent to mention that the present suit has been filed by Sh. Balraj Sood against six defendants including Smt. Prakash Kaur(defendant no.-6). It is also pertinent to mention that Smt Prakash Kaur i.e. defendant no.-6 herein has also filed one suit against Balraj Sood i.e. Plaintiff herein titled as Prakash Kaur Vs. Balraj Sood bearing no.-609238/2016 seeking relief of partition, possession and damages with respect to 2/3rd share in property in question. The said suit is also pending before this Court and is being tried together with the present suit. In said suit i.e. suit no.-609238/2016 issue no.-3 has been framed to the effect:- whether late Kundan Lal was co-lessee in respect of suit property to the extent of 2/3rd share as pleaded by the plaintiff?
Since issue no.-7(b) framed in present suit and issue no.-3 framed in said suit i.e. Suit no.-609238/2016 are identical, issue no.-7(a) and Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 41/44 7(b) will be dealt with and decided in the suit bearing no.609238/16.
9. ISSUE NO.:-(8):- RELIEF Plaintiff has prayed for directions to defendants to execute deed of conveyance in his favour by way of specific performance of agreement to sell dated 08.02.1979 already performed under Section 53A of The Transfer of Property Act. Section 53A of Transfer of Property Act is being reproduced herein for sake of convenience and ready reference:-
"53A. Part Performance- where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance or the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other then a right expressly provided by the terms of the contract:
Provided that nothing in this Section shall affect the rights of a Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 42/44 transferee for consideration has no notice of the contract or of the part performance thereof."
Hon'ble Supreme Court of India in Shamrao Suryavanshi's Case(Supra) has held that "The following conditions are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act:-
(1) there must be a contract to transfer for consideration any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must be in part performance of the contract take possession of the property or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; (6) the transferee must have performed or be willing to perform his part of the contract.
Hon'ble Supreme Court of India in Mohan Lal's Case(Supra) has held that "when the transferee seeks to avail of Section 53A to retain possession of the property which he had under the contract, it would be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. Under Section 16(c) of The Specific Relief Act also the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree."
In Mohan Lal's Case(Supra), Hon'ble Supreme Court further held Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 43/44 that plea based on Section 53A is available only by way of defence.
In view of aforesaid facts and circumstances, plaintiff is not entitled to any relief under Section 53A of The Transfer of Property Act as plaintiff has failed to prove his readiness & willingness to perform his part of the contract as he failed to pay four installments to Sh. Kundan Lal Sood as agreed between them by virtue of agreement to sell.
The other question which requires an answer is whether the plaintiff is entitled for refund of earnest money as well as part payment i.e. Rs.30,000/- paid by him to Sh. Kundan Lal Sood. It is not in dispute that plaintiff is in possession of the portion qua which agreement to sell was executed between him and Sh. Kundan Lal Sood from the date of said agreement itself and even prior to it. The property in question is centrally located and is situated in the heart of Delhi. Plaintiff has been enjoying the said property since 1979 and even prior to it without paying any rent/ user charges to Sh. Kundan Lal Sood. Hence, I am of the considered view that plaintiff is not entitled to refund of said amount of Rs.30,000/-.
In view of aforesaid facts, circumstances as well as my findings on the aforesaid issues, plaintiff is not entitled to any relief.
The suit filed by plaintiff is hereby dismissed.
No order as to costs. Digitally
signed by
Decree sheet be prepared accordingly. DEEPAK
DEEPAK DABAS
File be consigned to record room after completion DABAS of necessary Date:
2019.11.07 12:27:40 formalities. +0530 Announced in the open Court (DEEPAK DABAS) Dated : 31st October 2019 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Balraj Sood & Ors. Vs. Sulakshana & Ors. Page No. 44/44