Delhi District Court
Sh. K.L. Khurana vs Mr. Raj Kumar on 11 December, 2017
IN THE COURT OF SH. DHARMENDER RANA
ADDITIONAL DISTRICT JUDGE-12, CENTRAL,
TIS HAZARI COURTS, DELHI
Suit No. 426/2016
New CSDJ No.614280/16
1. Sh. K.L. Khurana
son of Sh. Maiya Dass
R/o RZ-17A Nand Ram Park,
Uttam Nagar,
New Delhi-59
....Plaintiff.
Vs.
1. Mr. Raj Kumar,
son of Sh. Shanti Swaroop Gupta
R/o 2442, Nalwa Street,
Pahar Ganj, New Delhi-110055.
Also at
R/o 70-E/2A
K.L. Khurana
V.
Raj Kumar & Ors 1 / 33 Dt. 11.12.2017
Amrit Puri, Garhi 'B', East of Kailash,
New Delhi
2. Mrs. Nirmal Devi
W/o Mr. Raj Kumar,
R/o 2442, Nalwa Street,
Pahar Ganj, New Delhi-11005.
also at :
R/o 70E/2A
Amrit Puri, Garhi, 'B', East of Kailash
New Delhi
3. Smt. Atri Devi
W/o Sh. Lala Ram
R/o 70E/2A
Amrit Puri, Garhi, 'B', East of Kailash
New Delhi
...Defendants.
Date of institution : 03.05.2007
Date of reserving order : 01.12.2017
Date of decision : 11.12.2017
K.L. Khurana
V.
Raj Kumar & Ors 2 / 33 Dt. 11.12.2017
SUIT FOR SPECIFIC PERFORMANCE AND
POSSESSION)
JUDGMENT
1. By way of present judgment, I propose to decide the present suit for specific performance and possession.
2. Briefly stated the case of the plaintiff is that Mr. Ram Kumar and Mrs. Nirmal Devi (hereafter referred to as defendant No.1 and 2 respectively) were absolute owner of a free hold property bearing No.70E/2A area measuring 50 sq. yards, out of khasra No.142 situated at Amrit Puri, B, Garhi, East of Kailash, New Delhi (hereinafter referred to as the suit property). The chain of documents bestowing title upon defendant No.1 and 2 through the initial owners Sh. Mawasi Gujjar has also been placed on record by K.L. Khurana V. Raj Kumar & Ors 3 / 33 Dt. 11.12.2017 the plaintiff. After verifying the possession of defendant No.1 and 2 in the suit property and their ownership credentials, the plaintiff agreed to purchase the suit property from defendant No.1 and 2 for a total sum of Rs.14 lacs. Accordingly, an agreement to sell dated 31.7.2006 (Ex.PW1/8) was executed between the plaintiff and defendants for purchase of the suit property and a sum of Rs.11 lacs was also paid in cash by plaintiff to defendant No.1 and 2. Plaintiff agreed to pay the balance amount of Rs.3 lacs within 60 days from the date of aforesaid agreement to sell on or before 30.9.2006. It was further stipulated in the Agreement to Sell dated 31.7.2006 (Ex. PW1/8) that upon payment of the balance amount of Rs.3 lacs, defendant No.1 and 2 shall handover the physical possession of the suit property and execute the necessary sale documents in favour of the plaintiff. It K.L. Khurana V. Raj Kumar & Ors 4 / 33 Dt. 11.12.2017 is averred that the plaintiff was ready and willing to perform his part of the agreement prior to the expiry of 60 days and he accordingly contacted defendant No.1 and 2 for payment of the balance consideration. However defendant No.1 and 2 expressed their inability to handover the vacant and physical possession of the suit property to the plaintiff and sought sometime for handing over the vacant possession and execution of the sale documents. Consequently plaintiff and defendant No.1 and 2 executed another agreement dated 23.9.2006 (Ex.PW1/10) whereby it was agreed between them that the sale documents shall be executed on or before 31.12.2006. The plaintiff remained in constant touch with defendant No.1 and 2 to ensure that the sale deed is executed. On 13.11.2006 defendant No.1 and 2, assured the plaintiff that necessary document K.L. Khurana V. Raj Kumar & Ors 5 / 33 Dt. 11.12.2017 shall be executed on 15.11.2006. It is averred that in the evening of 24.12.2006, when the plaintiff visited the suit property, he was shocked to see that there were numerous locks lying upon the suit property. The plaintiff could not ascertain despite efforts as to who had put these locks upon the suit property. The plaintiff subsequently came to know that defendant No.1 has fled from the suit property alongwith his family leaving the suit property opened. In order to protect his interest, the plaintiff filed a civil suit for Perpetual and Mandatory Injunction against defendant No.1 and 2 vide suit No.1331/2006 alongwith an application U/o 39 R 1 & 2 CPC before the Ld. Civil Judge. It is averred that an application U/o 39 R 1 & 2 CPC restraining defendant No.1 and 2 from creating any third party interest in the suit property was also allowed by the Ld. Civil Judge vide order dated K.L. Khurana V. Raj Kumar & Ors 6 / 33 Dt. 11.12.2017 28.11.2006. It is averred that defendant No.1 and 2 were avoiding to perform their obligation under the contract and were avoiding to execute the sale documents. It is averred that Smt. Atri Devi (hereinafter referred to as defendant No.3) filed an impleadment application in the above suit bearing No.1331/06 claiming herself to be the owner of the suit property. The said suit was withdrawn by plaintiff with liberty to file appropriate suit.
3. Having failed in his effort to ensure the execution of the sale deed by defendant No.1 and 2, plaintiff has now approached this court praying for a decree of specific performance of Agreement to Sell dated 31.7.2006 alongwith vacant and peaceful possession of the suit property and a sum of Rs.14 lacs as damages in the alternative alongwith pendente-lite and future interest @ 24% per annum. K.L. Khurana V. Raj Kumar & Ors 7 / 33 Dt. 11.12.2017
4. Summons of the suit were served upon the defendants. Defendants No.1 and 2 were served by way of publication in newspaper 'Statesman' dated 4.4.2008. However, despite service defendant No.1 and 2 have not turned up before the court and they were proceeded exparte vide order dated 9.4.2008.
5. Defendant No.3 filed a written statement and has contested the claim of the plaintiff inter alia on the ground that suit of the plaintiff is without any cause of action and has been filed with a malafide intention to harass the defendant. Defendant No.3 claims herself to be the owner of the suit property ever since 17.3.2006, it is averred that plaintiff was well aware of the fact that defendant No.3 is in possession of the suit property since 17.3.2006. It is claimed that defendant No.3 purchased the suit property from defendant No.2 on 17.3.2006 vide registered GPA for K.L. Khurana V. Raj Kumar & Ors 8 / 33 Dt. 11.12.2017 a consideration amount of Rs.2 lacs. Upon merits the contents of the plaint are denied and refuted. It is specifically claimed that the suit property was initially purchased by defendant No.2 and defendant No.2 sold the suit property bearing No. 70E/2A, Gali No.2, measuring 43 sq. meters part of khasra No.185/150 to defendant No.3 for a consideration amount of Rs.2 lacs on 17.3.2006 by way of an irrevocable GPA. It is averred that on 17.3.2006 the physical possession of the suit property was handed over by defendant No.2 to the defendant No.3 in the presence of defendant No.1. It is averred that defendant No.2 purchased the suit property from defendant NO.1 on 18.11.2005 vide registered sale deed dated 18.11.2005. Defendant No.2 subsequently sold the suit property to defendant No.3 by way of registered irrevocable GPA for a sale consideration of Rs.2 lacs. Defendant No.3 has K.L. Khurana V. Raj Kumar & Ors 9 / 33 Dt. 11.12.2017 denied the claim of the plaintiff in toto and has prayed for rejection of the suit. It is claimed that on 31.7.2006 defendant No.1 and 2 were not owner of the suit property nor in possession of the suit property. It is claimed that plaintiff has no right, title or interest in the suit property. It is specifically claimed that defendant No.3 was in possession of the suit property on 17.3.2006. It is claimed that Agreement to Sell dated 31.7.2006 (Ex.PW1/8) is void-ab-initio and suit of the plaintiff is based upon forged and fabricated documents. Defendant No.3 has accordingly, prayed for dismissal of the suit.
6. In response to the written statement the plaintiff has filed his replication reiterating his claim and refuting the assertions of the defendant No.3. The plaintiff has refuting the assertion that defendant No.3 is the owner of the suit property since 17.3.2006 and it K.L. Khurana V. Raj Kumar & Ors 10 / 33 Dt. 11.12.2017 is specifically averred that the defednant No.3 has tresspassed into the suit property prior to the institution of the suit. It is averred that in the above stated suit bearing No.1331/06 Ld. Civil Judge vide order dated 25.11.2006 directed the parties to maintain status-quo and issued summons to defendant No.1 and 2. At the time of effecting of the service of the summons in suit bearing No.1331/06, photographs were obtained and it was clearly indicated that the suit property was lying vacant having numerous locks upon the same. It is averred that the documents filed by defendant No.3 are forged and fabricated documents. It is specifically claimed that the documents filed by defendant No.3 pertained to property bearing No. 70E/2A, Gali No.2, measuring 43 Sq. meter, part of khasra No.185/150, Amrit Puri, East of Kailash, Garhi, New Delhi. The remaining K.L. Khurana V. Raj Kumar & Ors 11 / 33 Dt. 11.12.2017 contents of the written statement have been claimed to be false and frivolous and the plaintiff has once again reiterated his claim.
7. Upon pleadings of the parties, the issues were framed initially in the matter on 23.9.2009, however they were subsequently reframed here as under on 15.7.2007 :-
(I) Whether there is no cause of action for filing the suit as against the defendant No.3?OPD3
(ii) Whether the defendant No.3 is the lawful owner of the suit property and is in possession of the same since 17.3.2006?OPD3
(iii) Whether the plaintiff is entitled for decree of specific performance of the agreement to sell dated 31.7.2006 against the defendant NO.1 and 2 and decree of possession of the suit premises as against the defendants ?OPP K.L. Khurana V. Raj Kumar & Ors 12 / 33 Dt. 11.12.2017
(iv) Whether the plaintiff in alternate is entitled for a decree of damages for Rs.14 lacs as against defendant No.1 ,2 and 3 ?OPP
(v) To what interest, if any, the plaintiff is entitled and if so, at what rate and for what period against the defendants? OPP
(vi) Relief.
8. In support of his case, the plaintiff examined himself as PW1 and has proved documents i.e. photocopy of the sale deed dated 11.11.1970 Ex. PW1/1, photocopy of the registered sale deed dated 21.04.1971. Ex. PW1/2 photocopy of registered Will dated 30.3.1993, Ex. PW1/3 is the photocopy of Agreement to sell dated 30.3.1993. Ex. PW1/4 photocopy of Special Power of attorney. Ex. PW1/5, photocopy of GPA. Ex. PW1/6 receipt dated 30.3.1993. Ex. PW1/7, photocopy of Agreement to sell K.L. Khurana V. Raj Kumar & Ors 13 / 33 Dt. 11.12.2017 dated 31.7.2006. Ex. PW1/8 photocopy of cash receipt dated 31.7.2007. Ex. PW1/9, agreement dated 23.9.2006, Ex. PW1/10 certified copy of order dated 28.11.2006 of Ld. Civil Judge and mark A are the photocopies of photographs. The witness was cross examined at length by the Ld. Counsel for the defendant No.3.
9. The plaintiff has examined another witness PW2 Sh. Kuldeep Kumar, LDC Record Room, Tis Hazari, who had brought the summoned record of case file of suit No.289/10 titled as K.L. Khurana vs. Raj Kumar and proved the photographs as Ex. PW2/1 to Ex. PW2/5.
10. Another witness examined by the plaintiff is Sh. Navrattan Singh from the office of Town Planning Department of MCD, who had proved the copy of lay out plan of village Garhi, Mohalla Amritpuri B, as Ex. K.L. Khurana V. Raj Kumar & Ors 14 / 33 Dt. 11.12.2017 PW3/1.
11. PW4 Sh. Ram Tirath , Patwari from the office of Dy. Commissioner , M.B. Road, Saket, has proved the copy of the khasra girdawri in respect of khasra No.142, as Ex. PW4/1. Thereafter the plaintiff closed evidence vide order dated 26.5.2015.
12. Defendant No.3 examined herself as DW3 and proved her affidavit Ex. DW3/1. She has also relied upon GPA Ex. DW3/A. The witness was cross examined at length by the counsel for the plaintiff. Thereafter the defendant closed his evidence.
13. I have heard the Ld. Counsel for the parties and have perused the record carefully. My issue-wise findgins are as under:-
14. ISSUE No.1.
Whether there is no cause of action for filing the suit as against the defendant No.3?OPD3 K.L. Khurana V. Raj Kumar & Ors 15 / 33 Dt. 11.12.2017 It is claimed by defendant NO.3 that she is in possession of the suit property. The plaintiff herein is claiming possession of the same, therefore, it cannot be argued that plaintiff has no cause of action for filing of the instant suit against defendant No.3 and she has been unnecessarily impleaded. The issue is accordingly decided in favour of the plaintiff and against the defendants.
15. ISSUE NO.2 Whether the defendant No.3 is the lawful owner of the suit property and is in possession of the same since 17.3.2006?OPD3 Issue No.2 comprises of two components i.e.(i) whether the defendant No. 3 is lawful owner of the suit property. (ii) whether she is in possession of the suit property since 17.3.2006.
K.L. Khurana V. Raj Kumar & Ors 16 / 33 Dt. 11.12.2017 For the sake of convenience, I first propose to take up the 2nd component regarding the date since when defendant No.3 is in possession of the suit property. The plaintiff himself in his plaint has admitted that defendant No.3 is in possession of the property. In his para No.1 of the replication to the written statement, plaintiff has claimed that defendant No.3 has tress-passed into the suit property at some point of time prior to the institution of the present suit. However, he remained silent about the exact date as to when defendant No.3 came into possession of the suit property. Rather to the contrary defendant No.3 has placed on record the copy of the registered GPA Ex. DW3/A, wherein the admitted predecessor in title i.e. defendant No.1 and 2, have agreed to handover the physical possession of the impugned property to defendant No.3. The continuous state of affairs, K.L. Khurana V. Raj Kumar & Ors 17 / 33 Dt. 11.12.2017 pursuant to execution of the GPA Ex. DW3/A can be validly presumed by resorting to section 114 of the Indian Evidence Act unless there is something contrary on record. The plaintiff has attempted to rely upon photographs Ex.PW2/1 to Ex. PW2/5. However photographs by itself are not sufficient to repel the presumption in favour of the defendant as the said photographs can at best prove that there was no one to accept the summons at the relevant point of time. Further, that by itself cannot dispel the constructive possession of defendant No.3 in the suit property. Defendant No.1 and 2 have transferred the possession of the suit property in favour of defendant No.3 vide GPA Ex.DW3/A and the possession of the suit property continues to remain with its owner/their agent. Therefore, I have no hesitation in holding that the suit property was in possession of defendant No.3 K.L. Khurana V. Raj Kumar & Ors 18 / 33 Dt. 11.12.2017 ever since 17.3.2006.
Now I move on to the second component of the issue No.3 i.e. whether the defendant is lawful owner of the suit property.
In order to substantiate her ownership credentials, defendant No.3 heavily relies upon GPA Ex. DW3/A. Admittedly general power of attorney Ex. DW3/A merely empowers defendant No.3 to act on behalf of predecessor in title i.e. defendant No.1 and 2 and it does not confer any ownership upon the defendant No.3.
It has been recently observed by the Hon'ble Apex Court in Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr (on 11 October, 2011 SPECIAL LEAVE PETITION (C) NO.13917 OF 2009) that:-
"A power of attorney is not an instrument of transfer in K.L. Khurana V. Raj Kumar & Ors 19 / 33 Dt. 11.12.2017 regard to any right, title or interest in an immovable property. The power of attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of K.L. Khurana V. Raj Kumar & Ors 20 / 33 Dt. 11.12.2017 power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers- of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
K.L. Khurana V. Raj Kumar & Ors 21 / 33 Dt. 11.12.2017 An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
In the absence of any registered sale deed transferring ownership from defendant No.1 and 2 to defendant No.3, as required U/s 54 of the Transfer of Property Act 1882, defendant No.3 would not become owner of the property simply on the strength of a general power of attorney. Consequently, the issue No.2 is accordingly disposed off in favour of the plaintiff and against the defendants.
16. ISSUE NO.3.
Whether the plaintiff is entitled for decree of specific performance of the agreement to sell dated 31.7.2006 and decree of possession of the suit premises as against the defendant K.L. Khurana V. Raj Kumar & Ors 22 / 33 Dt. 11.12.2017 No.1 and 2?OPP In order to succeed, in a suit for specific performance, the essential requirements have been laid down in M.Johnson Vs. E.Pushpavalli reported in 2016-3 LW 527; 2016 SCC Online Mad 9713, wherein Honble Chennai High Court has observed here as under:-
?8. In a suit for specific performance of an agreement of sale, the following are the necessary factors to be pleaded and proved by the plaintiff: (a) that there is a valid agreement entered into between the parties in respect of the suit property;
(b) that the plaintiff is always ready and willing to perform his part of the contract, whereas the defendant is not doing so within the time prescribed for completion of the transaction; (c) that the suit is filed within the period of limitation; and (d) that there is no inordinate or unexplained delay in filing the suit from the date of expiry of the time prescribed under the agreement for the purpose of completion of contract, even though, the suit is filed within the period of limitation.
K.L. Khurana V. Raj Kumar & Ors 23 / 33 Dt. 11.12.2017 In the case at hand, the validity of the agreement between plaintiff and defendant No.1 and 2, qua which the specific performance is sought is not controverted by the contesting defendant No.3. It is specifically averred and has remained uncontroverted and unchallenged on record that the plaintiff was always ready and willing to perform his part of the contract and defendants are not doing so within the time prescribed for completion of the transaction. The plaintiff herein is seeking specific performance of contract dated 31.7.2006 and the suit was filed on 5.5.2007 i.e. well within the period of limitation and admittedly there is no inordinate or unexplained delay in filing of the suit. Consequently, I find no legal impediment in granting the relief of specific performance of the agreement to sell dated 31.7.2006. In my considered opinion, the sanctity of contracts K.L. Khurana V. Raj Kumar & Ors 24 / 33 Dt. 11.12.2017 enshrined in the legal maxim pacta sunt servanda requires the parties to discharge their mutual obligations undertaken by them under a valid contract.
Defendant No.3 has attempted to resist the claim of the plaintiff simply on the ground that agreement to sell dated 31.7.2006(Ex.PW1/8) executed in favour of the plaintiff is an unregistered document and registered GPA Ex.DW3/1 has been executed in favour of defendant No.3 by defendant No.1 and 2.
The defendant has relied upon Vipin & Another Vs. Smt. Roshni Devi & Ors in RSA No.4602 of 2011 (O&M), decided on 1.7.2014, Gurcharan Singh Vs. Hazura Singh LRs & Ors in RSA No.1800 of 1986 (O&M) decided on 1.4.2014, D. Balachandran Prop. Of Balu Tex. Vs. T. C. Shanmugam in C.R.P. (PD) No.3309 of 2012 and M.P. No.1 of 2012 decided on K.L. Khurana V. Raj Kumar & Ors 25 / 33 Dt. 11.12.2017 6.3.2013, Rama Tube Company and Sanjay Stell Vs. Jay Rapid Roller Ltd. In DLT 672, 2003 44 SCL 555 Delhi, Sukhbir Singh & Ors. Vs. Brijpal Singh & Ors in SLP No. 11140 of 1996 decided on 10.5.1996, Alka Bose Vs. Parmatma Devi & Ors in civil Appeal No.6197 of 2000 decided on 17.12.2008 and Yellapu Uma Maheshwari & Anr. Vs. Buddha Jagadheeswararao & Ors. In 2015(4) CLJ 358 S.C. As per section 54 of the Transfer of Property Act 1882, contract for sale of immovable property does not create any interest on the immovable property. Thus, the mere agreement to sell is not required to be compulsorily registered. It has already been observed that GPA Ex. DW3/1 does not confer any ownership rights upon the defendant No.3.
It has been observed by Honble Delhi High K.L. Khurana V. Raj Kumar & Ors 26 / 33 Dt. 11.12.2017 Court in the matter of Vinod Kumar & Anr. vs Ajit Singh I.A. NO.20617/2012 IN CS(OS) 2661/2012 Date of Decision: 01.10.2013 " In the instant case, the plaintiff has not sought relief based on part performance under Section 53A of the Transfer of Property Act and that being so, Section 17(1A) of the Registration Act, which was only meant for the provisions of Section 53A of the Transfer of Property Act, was not attracted and thus, the agreement did not require registration. Such an agreement falls under the mischief of Section 17(2) (v) of the Registration Act, and it itself does not create, declare, assign, limit or extinguish any right, title or interest in the property. Rather as held in Sukhwinder Kaur (supra) it creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish right, title or interest in the property. Not only this, provisions of Section 49 of the Registration Act make the position more clear. It envisages that an unregistered document affecting immovable property and required by this Act K.L. Khurana V. Raj Kumar & Ors 27 / 33 Dt. 11.12.2017 and the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter -II of Specific Relief Act, 1877. As further held in Sukhwinder Kaur (supra), a conjoint reading of Section 17(2)(v) and proviso of Section 49 of the Act leaves no room for doubt that agreement to sell property itself does not create any right or title over the property. It is the sale deed, which when executed will create such right in the property. Hence, an agreement to sell is not required to be registered and the same is receivable in evidence in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877."
None of the judgments relied upon by defendant No.3 requires that the agreement to sell is required to be compulsorily registered. Even the judgment of Gurcharan Singh Vs. Hazura Singh LRs & Ors in RSA No.1800 of 1986 (O&M) decided on 1.4.2014, would not help the cause of the defendant. In the said case K.L. Khurana V. Raj Kumar & Ors 28 / 33 Dt. 11.12.2017 the vendors on the date of execution of the sale deed, did not had any right, title or interest in the suit property as the same was relinquished in favour of the plaintiff therein. However, in the case at hand, defendant No.1 and 2 would not cease to be the owner of the property simply because they have opted to appoint an agent to act on their behalf.
As per section 182 of the Indian Contract Act, an agent is a person employed to do any act for another or to represent another in dealing with third person. Defendant No.3 was well conscious of the fact that she was merely appointed as an agent by the owners of the suit property and she entered into the transaction fully conscious of her limited rights. Now she cannot claim or exercise any right better than what she procured in the bargain. The authority of attorney/agent flows from the principal and would not K.L. Khurana V. Raj Kumar & Ors 29 / 33 Dt. 11.12.2017 act to the exclusion of the authority of the principal himself. In the case at hand, defendant No.3 is merely an agent and thus the ratio of judgment is not applicable to her case.
Defendant No.3 has further attempted to defend the suit by arguing that the plaintiff has not shown any source for payment of Rs.14 lacs. The receipt of Rs.11 lacs is not disputed by defendant No.1 and 2 as they have opted to remain exparte. Once the execution of the agreement to sell and receipt of Rs.11 lacs remains unchallenged, it cannot be argued by defendant No.3 that the execution of the agreement to sell dated 31.7.2006 or the receipt of consideration amount of Rs.11 lacs deserves to be disbelieved.
Consequently, the issue No.3 is decided in favour of the plaintiff and against the defendants. K.L. Khurana V. Raj Kumar & Ors 30 / 33 Dt. 11.12.2017
17. ISSUE NO.4.
Whether the plaintiff in alternate is entitled for a decree of damages for Rs.14 lacs as against defendant No.1 and 2 ?OPP The plaintiff has claimed damages to the tune of Rs.14 lacs in the alternative. However the plaintiff has miserably failed to lead any evidence to prove that he sustained any damages, leave aside, the quantum of damages.
Further, the plaintiff is seeking damages in the alternative and the issue for specific performance has already been decided in his favour. Therefore, I am of the considered opinion, that he is not entitled for any relief regarding damages. The issue is accordingly decided in favour of the defendants and against the defendants.
K.L. Khurana V. Raj Kumar & Ors 31 / 33 Dt. 11.12.2017
18. ISSUE NO.5 To what interest, if any, the plaintiff is entitled and if so, at what rate and for what period against the defendants? OPP In light of my findings upon issue No.4, I am of the opinion that once the plaintiff is not entitled for any damages, he cannot claim any interest upon the same. This issue is also accordingly decided in favour of the defendants and against the defendants.
19. ISSUE NO.6 RELIEF As a cumulative effect of my discussion above, I am of the opinion that the suit of the plaintiff deserves to be decreed.
Defendant No.1 and 2 are hereby directed to execute the sale deed in favour of the plaintiff in terms of agreement to sell dated 31.7.2006 with respect to K.L. Khurana V. Raj Kumar & Ors 32 / 33 Dt. 11.12.2017 the property bearing No.70E/2A area measuring 50 sq. yds. out of khasra No.142 situated at Amrit Puri B, Garhi, East of Kailash, New Delhi. Upon execution of the sale deed, defendants are accordingly directed to hand over vacant and peaceful possession of the said property to the plaintiff.
Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
(DHARMENDER RANA) Additional District Judge-12, (Central), Tis Hazari Courts, Delhi. Announced in the open Court on 11.12.2017.
K.L. Khurana V. Raj Kumar & Ors 33 / 33 Dt. 11.12.2017