Delhi District Court
Sh. Darshan Kumar vs Sh. Manoj Kumar on 28 February, 2023
DLST010001712010
In the Court of Ms. Gurmohina Kaur: Additional
District Judge
(South District) Saket Courts Complex, New Delhi
CS No.: 6514/16
In the matter of :-
Sh. Darshan Kumar
S/o Late Sh. Ram Kishore
R/o G-1, 321, Madngir
Dr. Amedkar Nagar
New Delhi-110062 .......Plaintiff
Versus
1. Sh. Manoj Kumar
S/o Sh. Om Prakash
R/o 448, Village Mundaka
Delhi- 110041
2. Smt. Jasbir Kaur
W/o Sh. Lakhbir Singh
3. Sh. Lakhbir Singh
Both Resident of
14, Tigri Village
New Delhi- 110062 ......Defendants
Date of institution : 19.03.2010
Arguments heard on : 11.01.2023
Date of decision : 28.02.2023
CS/6514/2016 Page 1 of 41
JUDGMENT
1. Facts as epitomized in the plaint are that Plaintiff has entered into an agreement with Late Smt. Gomati Devi for purchase or property bearing no. D-21/21 A, Chhattarpur Extension, New Delhi, having area 260 sq. feet on 05.11.2005 (hereinafter referred to as the suit property) and pursuant to the said agreement, the Plaintiff duly deposited the earnest money with said Gomati Devi. It is stated that thereafter, Defendant no. 1 misguided the said Smt. Gomati Devi and said agreement could not materialize. It is stated that under misguidance of Defendant no. 1, Smt. Gomati Devi filed a complaint case against the Plaintiff and per the directions of Court, FIR no. 846/2006 in PS Mehrauli was lodged against the Plaintiff. It is stated that Plaintiff had also filed a civil suit for specific performance of agreement on 05.11.2005 against Smt. Gomti Devi and her children and during the pendency of said suit, the Plaintiff moved an application for impleading Defendant no. 1 as party to said suit. It is stated that in the said suit, the Defendant no. 1 herein filed reply to application stating that the property had been sold by Smt. Gomti Devi to him, however, no documents in support of his contentions were filed. It is further stated that Smt. Gomti Devi had appeared before the Court and stated that she had never transferred any title in the aforesaid property in favour of Sh. Manoj Kumar (Defendant no. 1 herein) and she also got a public notice issued in the newspaper Rashtriya Sahara, dated 25.11.2007 wherein it was stated that possession of aforesaid property was still with her. It is further pleaded that the aforesaid suit was amicably settled between CS/6514/2016 Page 2 of 41 Smt. Gomti Devi and Plaintiff through Mediation and as per the settlement, the Plaintiff had paid the entire remaining amount to Smt. Gomti Devi and she had also delivered the possession of plot to the Plaintiff and Plaintiff had also put his lock in the premises. It is further stated that before passing the order on settlement, Ld. ADJ, Delhi issued directions to Manoj Kumar (Defendant no. 1 herein) to state if he had any objection to the settlement, however, despite directions, Manoj Kumar did not appear before the Court and the Hon'ble Court accordingly allowed the Plaintiff to withdraw the suit in terms of settlement. It is further stated that Smt. Gomti Devi filed an affidavit before the IO of the case FIR 846/06 qua the settlement and accordingly, FIR no. 846/06, PS Mehrauli, under Section 406/420 IPC was canceled and Final Report was prepared by ACP, Division Hauz Khas, Delhi on 14.07.2008.
1.1. It is further stated in the plaint that after taking over the possession of suit property, the Plaintiff was told by Smt. Gomti Devi that in the year 2004 she was ill and was suffering from various illnesses of old age and was not in a position to look after the suit property, therefore, she had executed GPA in favour of Defendant no. 1 in year 2004. Smt. Gomti Devi further told the Plaintiff that when she came to know that Defendant no. 1 had taken her signatures on some blank papers under the garb of taking electricity and water connection in her name and was having apprehension that the said documents might have been misused by the Defendant no. 1 and so Gomti Devi had executed Cancellation of GPA. It is further stated that when the fact of possession of suit property by the Plaintiff came to knowledge of CS/6514/2016 Page 3 of 41 Defendant no. 1, he threatened the Plaintiff. Thereafter, the Plaintiff reported the matter to police and deposited title documents with police but the police did not take any action. It is stated that on 08.10.2008, the Plaintiff visited the suit property and saw that locks put by him were broken and some persons were standing outside the suit property who informed that they had purchased the suit property from Defendant no. 1 long back, however, they failed to show any title documents in their favour. The Plaintiff reported the matter to police and gave a written complaint on 09.10.2008 and police assured to take care of the property from Defendant. It is stated that thereafter when the Plaintiff visited the suit property, he found that some persons were trying to raise construction and reported the matter to police but police did not take any action. It is stated that Defendant no. 1 in collusion with Defendant no. 2 and 3 has prepared false and frivolous papers by forging/ misusing the signatures of Smt. Gomti Devi and the Defendant no. 1 has represented himself to be the owner of the suit property. It is stated that Defendants are claiming right and title over the suit property on the basis of said documents such as Agreement to sell, GPA, Will, Sale Deed, Possession Letter, Receipt etc. It is stated that Defendant no. 2 and 3 are illegally residing in the suit property in the capacity of trespasser as Smt. Gomti Devi never authorized Defendant no. 1 to sell the suit property and GPA was given to Defendant no.1 just to look after the suit property. It is stated that Defendant no. 2 and 3 have also obtained electricity connection in collusion with officials of BSES without any consent of Plaintiff. It is stated that the Plaintiff sent a letter to BSES for disconnection of electricity, however, they have CS/6514/2016 Page 4 of 41 neither replied nor complied with said letter. It is further stated that the Plaintiff has also filed criminal complaint against the Defendants which was pending before the Court of Ld. MM, Delhi.
On these grounds, the Plaintiff filed the present suit seeking declaration in favour of Plaintiff and against the Defendants thereby seeking declaration that the Plaintiff was the exclusive and absolute owner of suit property bearing no. D- 21/21A, Chhattarpur Extension, New Delhi as shown in red color in site plan. The Plaintiff is also seeking declaration of documents in favour of Defendant no. 2 and 3 allegedly executed by Defendant no. 1 to be null and void. The Plaintiff is also seeking possession of suit property. The Plaintiff is also seeking permanent injunction against the Defendants thereby restraining the Defendants from selling, alienating or creating any third party right or interest in the suit property.
2. Summons of suit were issued to the Defendants. Upon issuance of summons, the Defendants appeared and Defendant no. 1 filed his written statement and Defendant no. 2 and 3 filed a joint written statement.
2.1. It is stated by Defendant no.1 in his written statement that Defendant no. 1 had purchased property no. D21/21A, Chattarpur Extension, New Delhi-110030 from Smt. Gomti Devi against consideration on 08.12.2004 and possession of suit property was also handed over to him on 08.12.2004 against execution of documents such as GPA, Agreement to Sell & Purchase, Affidavit, Receipt, Possession Letter all dated CS/6514/2016 Page 5 of 41 08.12.2004. It is stated that Defendant no. 1 had further sold the suit property to one Smt. Jasbir Kaur, W/o Sh. Lakhbir Singh on 10.02.2006 and had executed documents i.e. Registered GPA, Will, Affidavit and other documents in favour of Smt. Jasbir Kaur on 10.02.2006. It is stated that Plaintiff being an employee of Defendant no. 1 at that point of time, taken undue advantage of job and got blank stamp paper signed from Smt. Gomti Devi on pretext of depositing the same for electricity connection, however, fraudulently used the same as bayana receipt dated 27.11.2005. It is stated that said Smt. Gomti Devi had filed complaint against the Plaintiff in police station and thereafter also filed criminal complaint against him. It is further stated that on the basis of the forged bayana receipt instituted a suit no. 268/06, against Smt. Gomti Devi and her sons on 25.11.2006 claiming specific relief and possession. It is stated that Plaintiff had also filed an application under Order I Rule 10 CPC in the said suit seeking impleadment of Defendant no. 1. It is stated that said application for impleadment had been dismissed as withdrawn by Plaintiff without taking permission of the Court for filing any suit against Defendant no. 1 and gave up his right to seek any relief against Defendant no. 1. It is stated that the said suit no. 268/06 was withdrawn on same day as settlement was arrived between Smt. Gomti Devi and Plaintiff, however, Defendant no. 1 and sons of Smt. Gomti Devi were not party to the alleged settlement. It is further stated that present suit as well as earlier suit was filed by the Plaintiff on the basis of forged and fabricated documents. It is stated that alleged bayana receipt filed by the Plaintiff in his earlier suit and filed in the present suit are entire different. It is stated that the present suit is barred CS/6514/2016 Page 6 of 41 by limitation as Plaintiff has the knowledge since 2004 that Defendant no. 1 had purchased the suit property in 2004. It is further stated that the present suit is not maintainable under Order II Rule 2 CPC as Plaintiff had gave up his right to seek any relief against the Defendant no. 1 when he had withdrawn application under Order I Rule 10 CPC in the previous suit filed by him against Smt. Gomti Devi. It is stated that GPA executed by Smt. Gomti Devi in favour of Defendant no.1 was with consideration and therefore had created interest of Defendant no. 1 in suit property and was irrevocable. It is stated that the suit has not been verified as per law. It is stated that no specific relief has been claimed by the Plaintiff against Defendant no. 1. It is further stated that the suit was bad for non-joinder of necessary parties as sons of Smt. Gomti Devi were not impleaded by the Plaintiff in this suit. All other averments made in the plaint were denied by the Defendant no. 1.
On these grounds, it is prayed that suit of the Plaintiff deserves dismissal.
2.2. Joint written statement was filed on behalf of Defendant no. 2 and 3, wherein it was stated that Defendant no. 2 was the absolute registered owner and in possession of suit property and Defendant no. 3 is husband of Defendant no. 2. It is stated that Defendant no. 2 had purchased the suit property from Defendant no.1 against valuable consideration on 10.02.2006 by virtue of registered GPA, registered Will, possession letter, legal receipt, Agreement to Sell and purchase, Affidavit and other documents in favour of Defendant no. 2. It is stated that at the time of execution of documents, the Defendant no. 1 was the CS/6514/2016 Page 7 of 41 legal and absolute owner and was in possession of the suit property, as represented by Defendant no. 1 and had shown title documents in his favour. It is stated that Defendant no. 1 had also delivered the chain of original documents pertaining to previous transactions and also delivered the possession of suit property on 10.02.2006 and since then Defendant no. 2 is the absolute and exclusive owner of the suit property. It is further stated that on 08.10.2008, the Plaintiff alongwith his accomplice attempted to trespass the suit property but the same was prevented through intervention of Defendants no. 2 and 3 and the neighbours and that the Defendants also reported the matter to police. It is stated that on 11.10.2008, the Plaintiff again threatened the Defendants to vacate the suit property and the Defendants again reported the matter to police. It is stated that on same evening, the police personnel came and informed the Defendants that Plaintiff had filed a complaint against them claiming himself to be the owner of the suit property and on the said pretext the police demanded title documents from the Defendant for the purposes of verification and the Defendants supplied the documents to police. It is further stated that Defendant no. 2 and 3 approached the Defendant no. 1 and requested him to clarify the sale, upon which the Defendant no. 1 asserted to police that he had purchased the suit property from Gomti Devi upon which the police admitted the legal possession of Defendant no. 2 and 3 over the suit property to be legal and returned the original title documents to Defendants. It is stated that on 14.10.2008, the Defendant no. 2 gave a written complaint to PS Mehrauli against the Plaintiff, Smt. Gomti Devi and their unknown accomplices relating to their acts of house trespass, CS/6514/2016 Page 8 of 41 criminal conspiracy etc. 2.3. It is further stated by Defendant no. 2 and 3 in their written statement that in July, 2010, the Defendants got a letter from Consumer Grievance Redressal Forum, New Delhi with request to appear before the Forum on 03.08.2010 with relevant documents which Defendant no. 2 may intend to rely in support of their defence and accordingly, the Defendant appeared before the Forum and submitted the relevant documents of the suit property and since the Plaintiff himself could not establish his claim before the Forum, he withdrew his complaint. It is further stated that the Plaintiff has already lost his pleas before various Courts/ Forums wherein he had not succeeded. It is stated that the present suit is barred by limitation as Plaintiff was aware about the sale of suit property to Defendant no. 2. All other averments of the plaintiff made in the plaint were denied by Defendant no. 2 and 3.
On these grounds, it is prayed that the present suit be dismissed.
3. Separate replications to written statement of Defendant no. 1 and joint written statement of Defendant no. 2 and 3 were filed wherein the Plaintiff has denied the contentions raised by the Defendants and reiterated and reaffirmed the pleadings taken in the plaint.
4. Upon completion of pleadings, following issues were framed on 28.07.2011:-
CS/6514/2016 Page 9 of 411. Whether the relief of declaration is barred by limitation? OP on parties
2. Whether the suit is barred under Order 2 Rule 2 CPC? OPD1
3. Whether the plaintiff is entitled for relief of declaration? OPP
4. Whether the plaintiff is entitled to relief of possession? OPP
5. Whether the plaintiff is entitled to relief of permanent injunction?OPP
6. Relief.
Though, Issues no. 1 and 2 were directed to be treated as preliminary issue and one additional issue was also framed vide order dated 12.09.2011, however, vide order dated 17.12.2011 the said additional issue was deleted on issue no. 1 and 2, it was observed that the same could not be adjudicated as preliminary issues as complicated question of fact and law was involved.
Thereafter, matter was fixed for Plaintiff's evidence.
5. To prove his case, the Plaintiff got examined four witnesses. Plaintiff Darshan Kumar has stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He deposed on lines of his pleadings in the plaint. He placed reliance on certain document viz. Site plan Ex. PW1/1, Bayana agreement Ex. PW1/2, copy of settlement arrived between plaintiff and Smt. Gomti Devi Ex. PW1/3. PW1 also filed additional affidavit of evidence Ex. PW1/B and placed CS/6514/2016 Page 10 of 41 reliance on documents viz. Order of Mediation Centre Ex. PW1/4, copy of order dated 29.08.2008, copy of order dated 01.09.2008 and statements of Sh. A.K. Mishra, Advocate, Darshan Kumar and Sh. R.K. Gupta, advocate dated 01.09.2008 Ex. PW1/5 (colly) (OSR), copy of application dated 16.06.2008 of Gomti Devi Mark 'A' and affidavit dated 16.06.2008 Mark 'B', GPA and Will registered on 21.05.2008 are Ex. PW1/8 and Ex. PW1/9 (colly), Agreement to sell dt. 21.05.2008 Ex.PW1/10, possession letter dt. 21.05.2008 Ex. PW1/11, receipt dt. 21.05.2008 Ex. PW1/12, copy of cancellation of GPA Ex. PW1/13, Receipt dated 23.10.2007 Ex. PW1/13A, complaints dt. 09.10.2008 and 13.10.2008 Ex. PW1/14 and Ex. PW1/15, ration card Ex. PW1/16. He was cross-examined at length by Ld. Counsel for Defendant no. 1 as well as by Ld. Counsel for Defendant no. 2 and 3. During cross-examination of PW1 conducted on 29.08.2014, he stated that at the time of sale of suit property, he prepared the agreement to sell, Will, Possession Letter, Receipt and Affidavit and he got the documents prepared with the help of a person in his neighbourhood namely Amit Kumar. He further stated that the brother-in-law of Gomti Devi informed him about the suit property and the name of her brother-in-law was Surjeet Kumar @ Surjeet. He stated that he had met Surjeet Kumar in the end of the year 2004 and he had started his property dealing business in the year 2005. He further stated that Gomti Devi told him that she had received the token money of Rs.10,000/- for the sale of the suit property from one person but he was unable to pay the balance sale consideration, so he took back the keys of the suit property from the said person whose name he did not remember.
CS/6514/2016 Page 11 of 41During his cross-examination conducted on 26.03.2015, wherein the Agreement to Sell and Possession letter were exhibited as Ex. PW1/10 and Ex. PW1/11 (OSR). During his further cross-examination conducted, Defendant No. 1 stated that he met Defendant no. 1 in the year 2004 and that one Dheer Singh had given earnest money for the sale of purchase property in the year 2004 i.e. Rs. 2 Lakh and that they had kept on waiting for him that he would come for execution of documents but he did not come forward. He further stated that Defendant no. 1 wanted to purchase this property and thereafter said that said that he had come with Dheer Singh Yadav and was not personally known to him. He stated that in 2004, he had no personal interest in the property. He stated that he could produce the advance receipt executed by Dheer Singh Yadav and Gomti Devi which was witnessed by the sons of Gomti Devi, Anil Kumar and Ramesh Kumar and one another person Prem Kumar. He stated during his cross-examination that it was executed in the middle of the year 2004, exact month which he did not remember. He stated that it was sold for Rs. 9 Lakhs to Dheer Singh Yadav and that it was never canceled. He further stated that it was a printed format which he had filled the blanks i.e. by Dheer Singh Yadav. He stated that he had not mentioned about this transaction in any of the suits. He stated that vide Ex. PW1/10, he made the following payments to Gomti Devi (1) on 05.11.2005, pay rent of Rs.1.5 Lakh in cash wherein the earlier payment of Rs.2 Lakh by Dheer Singh Yadav was also added and it was mentioned as payment of Rs.3.5 Lakh (2) In year 2008, he gave a cheque of Rs.4 Lakh which was duly encashed. (3) After 2-3 days after payment of Rs.4 Lakh, he gave Rs.1.5 Lakh CS/6514/2016 Page 12 of 41 cheque to Gomti Devi. (4) Remaining payments were received by Gomti Devi in installments of small amounts from time to time and he did not have the details of the same. He stated that in total he made the payment of Rs.11 Lakh and he did not obtain the receipts of these small amount paid. He further stated that he did not remember in how much installment he gave the balance amount as mentioned in Ex.PW-1/10. He further averred that the said cheuqes were issued from his own bank account in SBI Branch, Madangir, Account no. XXXXX 34015. He further depose that no receipts were executed by Gomti Devi in his favour at the time of receiving the part consideration. He further stated that blanks in Mark-Z were filled by him on 23.10.2007. He further stated that since Gomti Devi was a heart patient and so she could not get the cheques of Rs.3 Lakhs and Rs.3.5 Lakhs as mentioned in Mark Z enacashed and she returned the same to him. He stated that when he had written the bayana receipt on 05.11.2005, the same was written in favour of Mr. Vimal Goyal for whom he had gone to the house of Gomti Devi i.e. for balance payment but she refused to accept the amount. He further stated Manoj Kumar induced that he would return the double the bayana to him and he would get better deal for her so that she could get one or two more consideration for the suit property and on this basis he obtained all the title documents chain from Gomti Devi and also obtained the signatures of Gomti Devi on some title documents. He further stated that these facts were told to him by Gomti Devi in the initial year of 2006 when he had entered into a bayana receipt with her. He stated that he had no receipt in favour of Vimal Goyal as the bayana receipts were made in his name and not in the name of Vimal CS/6514/2016 Page 13 of 41 Goyal and Vimal Goyal was not personally known to him and and had come to him as a customer. He stated in cross- examination that he had never returned any money to Dheer Singh Yadav nor had he demanded the same.
During his cross-examination conducted on 30.04.2016 by counsel for Defendant no. 1, PW-1 stated that Ex. PW1/2 had executed initially by him for and on behalf of Mr. Vimal Goyal. He further admitted that at the time of execution of Ex. PW1/2, he had no interest in the suit property nor had any intention to purchase the same. He further stated that Ex. PW1/2 though was recorded in his name but the actual purchaser of the suit property was Mr. Vimal Goyal. He stated that the money which was recorded as a part sale consideration in Ex. PW1/2 was paid by Mr. Vimal Goyal to Gomti Devi and also admitted that the consideration recorded in Ex. PW1/2 was not paid by him. He stated that it was only on the insistence of Mr. Vimal Goyal that on Ex. PW1/2 his name was recorded as the purchaser and not of Mr. Vimal Goyal and prior to execution of Ex. PW1/2, Gomti Devi entered into agreement for sale of the suit property with Mr. Dheer Singh Yadav. He stated that he did not know if Mr. Manoj Kumar i.e. Defendant no. 1 had purchased the suit property from Gomti Devi prior to execution of Ex. PW1/2. He further stated that he had not gone to the suit property prior to execution of Ex. PW1/2 and Ex. PW1/2 was the photocopy of the Agreement to Sell. He stated that the agreement with Mr. Vimal Goyal was of the year 2004- early part of year 2005. He further stated that after execution of Ex. PW1/2, when he on behalf of Mr. Vimal Goyal approached Gomti Devi and offered her on behalf of Mr. Vimal Goyal, CS/6514/2016 Page 14 of 41 balance sale consideration, Gomti Devi refused to accept the same and then he came to know that Manoj, Defendant no. 1 had agreed to purchase the suit property from Gomti Devi and had paid her certain amount which he came to know was Rs.50,000/- and he on behalf of Mr. Vimal Goyal could not make the balance sale consideration amount to Gomti Devi. He stated during his cross-examination that he had visited the suit property in the end of year 2005, when he found the same to be vacant and added that at that time, the keys of the property were with him. He stated that the keys of the suit property were received by him from Smt. Gomti Devi in the end of year 2005 and no document of handing over and taking over the keys of the suit property were prepared between himself and Gomti Devi. He further stated that he aware of the Agreement to Sell and Purchase executed between Smt. Gomti Devi and Manoj Kumar, the Defendant no. 1 in the year 2004. He further admitted that Smt. Gomti Devi had filed a criminal complaint against him in the year 2006. He stated upon taking the keys of the suit property from Gomti Devi in the year 2005, he had never occupied the suit property.
During his cross-examination conducted on 10.01.2007, PW1 stated that at the time of execution of Agreement to Sell Ex. PW1/2 and/or immediately before its execution, he did not speak to Defendant no. 1 in relation to present transaction. He stated that Ex. PW1/2 had no concern with Defendant no. 1 and thus the same did not record the name of Defendant no.1. He stated that Ex. PW1/2 was in his handwriting and was written upon discussion with Gomti Devi. He admitted that clause 3 of Ex. PW1/2 refers to some CS/6514/2016 Page 15 of 41 transaction between Gomti Devi and Defendant no. 1 and Gomti Devi did not apprise him of the money which was referred to in clause 3 of Ex. PW1/2 and he had told Defendant no. 1 of the execution of Ex. PW1/2 on 05.11.2005 at the time of execution of Ex. PW1/2. On being confronted, the witness PW-1 i.e. the Plaintiff himself stated during his cross-examination that he had not met Defendant no.1 at the time of execution of Ex. PW1/2 and again added that he had not met Defendant no. 1 on 05.11.2005 but he had received a telephonic call from Defendant no. 1. He admitted that he had no interest, title or right in the suit property prior to execution of Ex. PW1/2 and the said transaction was done through him nor he had anything to do with the same. He stated that he could identify the signatures of Smt. Gomti Devi on Ex. PW1/D1 to Ex. PW1/D5 and added that Ex. PW1/D1 to Ex. PW1/D5 were not executed in his presence and that he had come to know of Ex. PW1/D1 to Ex. PW1/D5 and its execution sometime in May, 2005. He denied the suggestion that Gomti Devi had been left with no right in the suit property at the time of execution of Ex. PW1/2. He stated that Ex. PW1/13 is the photocopy of the cancellation of GPA and he could produce the original of Ex. PW1/13 and that he had not produced the original of Ex. PW1/13 on record and that Ex. PW1/13 was prepared by him at the instance by Gomti Devi, PW-1 admitted that Defendant no. 1 was in occupation of the suit property since December, 2004. He stated that he had come into possession of the suit property on the basis of Power of Attorney executed by Gomti Devi in his favour in December, 2004 and that in the suit filed by him for specific performance, Defendant no. 1 was a party. He stated that in the mediation proceedings, he had not CS/6514/2016 Page 16 of 41 apprised the Court and the Mediators of the transaction between Gomti Devi and Defendant no. 1 and that it was for Gomti Devi to have told the said fact to the Ld. Court and the Mediator. He stated that Ex. PW1/6 and Ex. PW1/7 were filed by Gomti Devi with his assistance and denied the suggestion that they were executed by Gomti Devi without her will on the force/ pressure extended by him on her. He stated that he had received possession of the suit property from Smt. Gomti Devi at the time of execution of bayana receipt Ex. PW1/2 i.e. in the year 2005 and that since November 2005, the suit property remained in his occupation. He stated that it has been wrongly stated in para 10 of Ex. PW1/A that he had received possession of the suit property on 21.05.2008 i.e. on the date of execution letter. He stated that he could not say why he had never said in any of his pleadings in the present suit or in the earlier suit filed by him for specific performance against Gomti Devi that he had never received the possession of the suit property from Gomti Devi in December, 2005. PW-1 stated that he had made complaints dated 09.10.2008 and 13.10.2008 Ex. PW1/14 and Ex. PW1/15 against Gomti Devi. He stated that Defendant no. 1 according to him never came in possession of the suit property. He stated that he had not made any complaint to the police authorities against Defendant no. 1 and that he had filed the present suit for recovery of possession of the suit property and he had filed the present suit for recovery of possession of the suit property from Gomti Devi and Defendant no. 1.
During his cross-examination conducted on 18.11.2017 by counsel for Defendant no. 2 and 3, PW1 stated that he was not having the chain of title documents of suit CS/6514/2016 Page 17 of 41 property and he could not admit or deny the suggestion that chain of title documents of suit property were with defendant no. 2 and 3. He admitted that he had not disclosed in any cases pertaining to suit property on in the present case that he was not having chain of title documents of suit property. He admitted that an FIR no. 846/2006 was registered against him at PS Mehrauli, on the directions of the Court on the basis of the complaint of Gomti Devi under Section 420 IPC and added that the FIR had been cancelled. He admitted that he had filed the suit for specific performance qua the suit property in Tis Hazari Courts, which was referred to the Mediation Centre. He admitted that the settlement Ex. PW1/3 was executed between him and Gomti Devi out of Court. He admitted that GPA Ex. PW1/8 was executed prior to entering into a settlement before Mediation Centre. He further admitted that it has been recorded correctly in Ex. PW1/2 that on 05.11.2005, he had given a sum of Rs.3.5 Lakhs to Gomti Devi and stated that the said amount was paid in cash and again out of the total amount of Rs.10,000/- was handed over by way of cheque. He stated that he had taken the amount of Rs.3.5 Lakh on loan from somebody and he did not want to inform the Court about the details of the said person as it was not required during cross-examination conducted by Ld. Counsel for Defendant No. 2 and Defendant No. 3 on 28.03.2008, he admitted that the suit property was in possession of Defendant no. 2 and no. 3 and he had got to know that on 08.10.2008, consideration qua the suit property had been paid by Manoj to Gomti Devi. He admitted that he did not return the money to Manoj Kumar as was undertaken by him in Mark PW- 1/D1. He stated that he did not have receipts to the documents CS/6514/2016 Page 18 of 41 allegedly deposited on 08.09.2008 as per his complaint dated 09.10.2008. He stated that he did no file any civil suit for injunction against the construction alleged by him in para no. 15 of his evidence affidavit Ex.PW-1/A. He stated that he was no aware that Gomti Devi had executed GPA in favour of Manoj Kumar.
6. PW2 Sh. Anil Kumar (son of Smt. Devi) has tendered his evidence by way of affidavit Ex. PW2/A. He deposed that his mother Smt. Gomti Devi had sold the suit property to the Plaintiff against total consideration of Rs.11,00,000/-. He further deposed that after the receipt of consideration amount, his mother had handed over the possession of suit property to Plaintiff. He further deposed that Defendant no. 1 had taken signatures of his mother Gomti Devi on some blank papers under the garb of obtaining electricity connection which was never obtained. He further deposed that under misguidance of Defendant no. 1, his mother Smt. Gomti Devi had lodged an FIR against the Plaintiff however, after coming to know the true facts, his mother gave an affidavit requesting the police to cancel the FIR against the Plaintiff. PW2 was cross-examined by Ld. Counsel for Defendant no. 1 as well as by Ld. Counsel for Defendant no. 2 and 3.
During cross-examination, he has stated that he met Manoj Kumar for the first time in the year 2005 at his residence and he had come to his house in reference of Darshan Kumar. He is stated that he was carrying a blank paper and told him that Darshan Kumar had met with an accident and asked him, his mother and brother to sign the said paper for the purpose of CS/6514/2016 Page 19 of 41 obtaining electricity and water connection. He stated that he did not remember on which property the electricity water connection was to be maintained through the said paper. During his cross- examination conducted on 08.08.2018, by counsel for Defendant No. 1, the witness was shown the original agreement to sell and purchase dated 08.12.2004, affidavit, receipt, possession letter, Will dated 08.12.2004, photocopies of which are already on record. The agreement to sell and purchase dated 08.12.2004 was Ex.PW-1/D1(OSR) bearing the signature of his mother at point A,B and C, his signature at point D, signatures of his brother Ramesh Kumar at point E and signatures of his brother Shiv Shankar at point F. He stated that the General Power of Attorney dated 08.12.2004 was Ex.PW-1/D2(OSR) bearing the signature of his mother at point A,B, C and D, his signature at point E, signatures of his brother Ramesh Kumar at point G and signatures of his brother Shiv Shankar at point F. The affidavit dated 08.12.2004 bearing the signature of his mother at point X1 and X2 was Ex.PW-1/D3 (OSR), the receipt dated 08.12.2004 bearing the signature of his mother at point X3, his signature at point A, signatures of his brother Ramesh Kumar at point B and signatures of his brother Shiv Shankar at point C was now Ex.PW-1/D4(OSR), possession letter dated 08.12.2004 signature of his mother at point X4, his signature at point A, signatures of his brother Ramesh Kumar at point B and signatures of his brother Shiv Shankar at point C was now Ex.PW-1/D5(OSR). Will dated 08.12.2004 signature of his mother at point X5, his signature at point A, signatures of his brother Ramesh Kumar at point B and signatures of his brother Shiv Shankar at point C was now Ex.PW-1/D6(OSR). The receipt dated 23.08.2004 CS/6514/2016 Page 20 of 41 bearing his signatures at point A, signature of his mother at point B, signatures of his brother Ramesh Kumar at point D and signatures of his brother Shiv Shankar at point Cwas now Ex.PW-1/D7. He stated that the receipt was not in his handwriting. He denied the suggestion that the suit property was sold by his mother to Defendant no. 1 by way of the documents Ex.PW-1/D1 to D7. He stated that the suit property was sold to Mr. Darshan Kumar in the year 2005. He stated that the Darshan Kumar was a property dealer. He admitted that an FIR was registered against Darshan Kumar at the instance of his mother but added that the FIR was registered under the mistake of facts and was later on cancelled. He further stated that the Vimal Goyal and Dheer Singh Yadav were not known to him. He denied the suggestion that the possession of the suit property was given Mr. Manoj Kumar on 08.12.2004 and added that the possession was given to Mr. Darshan Kumar. During his cross- examination conducted on behalf of counsel for Defendant no. 2 & 3, he admitted that his mother Gomti Devi had not handed over the chain of the title documents of the suit property to Darshan Kumar and added that these documents were handed over to Manoj Kumar, who had approached his mother on behalf of Darshan Kumar. He admitted that he was not aware in whose possession the suit property had been after the year 2004.
7. PW3 Sh. Ramesh Kumar (son of Smt. Gomti Devi) has tendered his evidence by way of affidavit Ex. PW3/A. He made similar averments as that of PW2 in his affidavit of evidence. PW3 was cross-examined by Ld. Counsel for Defendant no. 1 as well as by Ld. Counsel for Defendant no. 2 CS/6514/2016 Page 21 of 41 and 3. During cross-examination, by counsel for Defendant no. 1 he identified his signature and signature of his mother and brothers on Ex.PW-1/D1 to D6(OSR). He identified his signature on Ex.PW-1/D7 at point A and that of his mother and brothers on the same document. He denied the suggestion that the suit property was sold by his mother to Defendant no. 1 by way of Ex.PW-1/D1 to D7 and voluntary added that the suit property was sold to Darshan Kumar and Manoj Kumar accompanied him. He stated that he had met Defendant no. 1 once or twice in the year 2006 when Darshan Kumar had met with an accident. He denied the suggestion that Darshan Kumar had met him in 2004 in connection with the deal for the purchase of the suit property. He stated that his mother got the FIR registered with the allegation that Darshan Kumar was defrauding her. He stated that the Ex.PW-3/A was brought blank to him and he had signed on the blank papers. During his cross-examination by counsel for Defendant No. 2 & 3, he stated that he could not say if his mother had ever handed over the chain of title documents to Sh. Darshan Kumar and further stated that the suit property was purchased his father and he did not know from whom his father had purchased the suit property.
8. PW4 Sh. Naveen Kumar (son of Smt. Gomti Devi) has tendered his evidence by way of affidavit Ex. PW4/A. He also made similar averments as that of PW2 and PW3. PW4 was cross-examined by Ld. Counsel for Defendant no. 1 as well as by Ld. Counsel for Defendant no. 2 and 3. During his cross- examination by counsel for Defendant no. 1, he has stated that affidavit Ex.PW-4/A was prepared by an Advocate in Tis Hazari CS/6514/2016 Page 22 of 41 Court, whose name he did not know. He further stated that he knew Smt. Gomti Devi, since the year 2008. He further stated that he did not know when the amount of Rs. 11 lacs was given to Smt. Gomti Devi as deposed in his affidavit at para no. 4. He further stated that the documents in favour of the plaintiff were executed by Smt. Gomti Devi in the year 2008. He further stated that possession of the suit property was handed over the Plaintiff by Gomti Devi two days after the execution of the title documents and that he was not aware that Gomti Devi had sold the suit property to Defendant no. 1 in the year 2004. He stated that he did not know when the negotiation for sale and purchase of the suit property commenced between the Plaintiff and Gomti Devi. He stated that he had not seen the chain of title documents in respect of transfer of property by Gomti Devi to Plaintiff. During his cross-examination of Counsel for Defendant no. 2 & 3 he admitted that he had no connection with the suit property either before or after the execution of the title documents in 2008 in favour of Plaintiff. He admitted that the suit property was in possession of the defendant no. 2 & 3 as on date and further admitted that he was not aware about any dealing/negotiations/transactions or execution of any paper in relation to the suit property prior to 2008.
Thereafter, PE was closed and matter was fixed for Defendant's Evidence.
9. To contradict the case of Plaintiff, Defendant no. 1 got examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/A wherein he has deposed on the grounds taken as defence in his written statement. He placed reliance on CS/6514/2016 Page 23 of 41 certain documents viz. GPA dated 08.04.2004, executed by Smt. Gomti Devi in favour of Defendant no. 1 Ex.PW1/D2, Agreement to sell Ex. PW1/D1, affidavit dt. 08.04.2004 Ex.PW1/D3, Receipt dated 08.04.2004 Ex. PW1/D4, Possession letter Ex.PW1/D5, Will dated 08.04.2004 Ex. PW1/D6, copy of agreement to sell and purchase dt. 10.02.2006 Ex. DW1/7, copy of GPA dt. 10.02.2006 Ex.DW1/8, copy of Will dt. 10.02.2006 Ex.DW1/9, affidavit dt. 10.02.2006 Ex.DW1/10, possession letter dt. 10.02.2006 Ex.DW1/11, copy of criminal complaint lodged by Smt. Gomti Devi against Plaintiff Ex.DW1/12, certified copy of plaint filed by Plaintiff in earlier suit is Ex.DW1/13 and certified copy of WS filed by Smt. Gomti Devi in earlier suit Ex. DW1/14. DW1 was cross-examined at length by Ld. Counsel for the Plaintiff. During cross-examination by counsel for Plaintiff on 05.03.2019, he stated that Gomti Devi had approached him for sale of her property sometime in the year 2003 and since he had liked the property, they negotiated for sale and purchase. He did not remember if he had received any notice from Tis Hazari Court regarding the suit filed by Darshan Kumar. He further stated that the documents which were executed by the Gomti Devi was notarized and added that in the area in question the documents are not registered and are only notarized. He stated that he had purchased the suit property for some of Rs. 8 lacs which was paid by cheque and cash and he did not remember how much amount was paid by cheque, however, the cheque was of Co-Operation Bank, Mundka. He admitted that Ex.DW-1/2 at page no. 2 Clause 2 sub clause B, the date of the cheque is blank. He stated that it was the matter of record that the consideration amount has not been mentioned CS/6514/2016 Page 24 of 41 in Ex.DW-1/1. He admitted that the receipt Ex.DW-1/4 dated 08.12.2004 was correct and further admitted that in Ex.DW-1/4 Clause B the date of the cheque was blank. He denied the suggestion that signatures of Gomti Devi on Ex.DW-1/4 were forged or fabricated. He denied the suggestion if he had filed any reply in the suit filed by Darshan Kumar against Gomti Devi at Tis Hazari Court. The witness identified the reply dated 31.05.2007 before the court of Ld. ADJ which was Ex.DW-1/PA. He stated that at the time when suit property purchased by him it was having a hall on the ground floor and beside Ex.DW-1/D1 to D4, he does not have any document to show his possession qua the suit property. He denied the suggestion that the GPA Ex.DW- 1/1 was cancelled by Gomti Devi. During his cross-examination in 03.05.2019, DW-1 stated that he must have been told by Gomti Devi about the complaint as mentioned in para no. 8 of his evidence affidavit Ex.DW-1/A. He stated that he did not accompany Gomti Devi to police station and copy of Ex.DW- 1/12 must have been provided to him by Gomti Devi. He stated that he did not remember when first time he learnt about the transaction between Gomti Devi and Darshan Kumar and he had learnt about the transaction between the Plaintiff and Gomti Devi when the court case was filed. He stated that Gomti Devi never cancelled the Power of Attorney in his favour at any time. He stated that she could not have cancelled the Power of Attorney since he had purchased the property from her. He stated that the earnest money towards the purchase of the suit property was paid to Gomti Devi in presence of her sons. He stated that the Bayana Agreement was written in the handwriting of the son of Gomti Devi and Ex.PW-1/D7 did not bear his signatures and CS/6514/2016 Page 25 of 41 added that on the receipt of the signature of the seller are not required. He stated that all the thumb impression appearing on Ex.PW-1/D2 to D6 were that of Gomti Devi and that the rest of the property was clearly mentioned in Ex.PW-1/D1. During his cross-examination conducted on 15.07.2019, he stated that he did not know what was the result of the suit filed by the Plaintiff against Gomti Devi. He further stated that he was not aware whether the settlement had been arrived between the Plaintiff and Gomti Devi in the aforesaid suit. He stated that he did not know if Gomti Devi had cancelled any document in his favour in respect of the suit property. He stated that he did not know that after the filing of the present suit Darshan Kumar had filed the suit against Gomti Devi seeking specific performance which ended in a compromise. He stated that Ex.PW-1/D1 was only notarized and not registered with the Sub Registrar. He stated that he had never taken Gomti Devi to the Sub Registrar office after execution of Ex.PW-1/D1 to D6. He stated that he did not know if Ex.PW-1/4 and Ex.PW-1/5 had been executed in compromise between the Plaintiff and Gomti Devi. He further denied the suggestion that the proceedings dated 29.08.2008 and 01.09.2008 before Ld. ADJ Tis Hazari was within his and his Counsel's knowledge. He stated that it was a matter of record that even after filing of the present suit he did not challenge the proceedings dated 29.08.2008 and 01.09.2008 before any Court.
(Inadvertently there is no DW2)
10. On behalf of Defendant no. 2 and 3, two witnesses were examined, Defendant no. 3 Lakhbir Singh stepped in witness box as DW3 who tendered his evidence by way of CS/6514/2016 Page 26 of 41 affidavit Ex. DW3/A and Defendant no. 2 Jasvir Kaur stepped in witness box as DW4, who tendered her evidence by way of affidavit Ex. DW4/A. They made their deposition similar to their averments made in the written statement. They placed reliance on documents viz. Copy of GPA Dated 08.12.2004 already Ex. PW-1/D2, Copy of agreement to sell dated 08.12.2004 already Ex.PW-1/D1, Copy of affidavit dated 08.12.2004 is already Ex.PW-1/D3, Copy of receipt dated 08.12.2004 already Ex.PW- 1/D4, Copy of possession letter dated 08.12.2004 already Ex.PW-1/D5, Copy of will dated 08.12.2004 already Ex.PW- 1/D6, Copy of agreement to sell dated 10.02.2006 already Ex.DW-1/7, Copy of registered General Power of Attorney dated 10.02.2006 already Ex.DW-1/8, Copy of registered will dated 10.02.2006 already Ex.DW-1/9, Copy of affidavit dated 10.02.2006 already Ex.DW-1/10, Copy of possession letter dated 10.02.2006 already Ex.DW-1/11, Copy of complaint dated 14.08.2008 is Mark-1, Copy of order dated 30.11.2010 passed by Consumer Grievance Rederessal Forum is Mark-2, Copies of previous chain of documents prior to Smt. Gomti Devi are Ex.DW-3/1(colly)(OSR). Both these witnesses were cross- examined by Ld. Counsel for the Plaintiff.
During the cross-examination DW3 deposed that he came in touch with Defendant no. 1 in 2006 when the suit property was purchased and he had met Defendant no. 1 two times prior to purchase of the suit property. He stated that he had paid the sale consideration to Defendant no. 1 in cash and besides the receipt issued he has not filed any document to show the cash paid for the purchase of suit property anywhere else. The original of receipt was Ex.DW-3/DX(OSR). He admitted CS/6514/2016 Page 27 of 41 that it has not been stated in Ex.DW-3/DX regarding the mode of payment and added that it was made in cash. He further admitted that Ex.DW-3/DX was witnessed by him. He stated that he had not filed any case against the Plaintiff for cancellation of documents in his favour and added that he did not have any knowledge of any document in favour of the plaintiff. He stated that the Defendant no.1 had never appraised him for any dispute between him and Gomti Devi and at the time of execution of the sale document and he and his wife did not participate in the transaction qua the suit property between Defendant no. 1 and Gomti Devi. He stated that he had not pursue the complaint Mark 1 and he had no knowledge regarding the status of the complaint. He stated that he had not shown the amount of consideration and receipt Ex.DW-3/DX as he was not an income tax payee at the relevant time.
During cross-examination by Ld. Counsel for Plaintiff, DW4 deposed that he came in touch with Defendant no. 1 in 2006 when the suit property was purchased and he had met Defendant no. 1 two times prior to purchase of the suit property. He stated that he had paid the sale consideration to Defendant no. 1 in cash and besides the receipt issued he has not filed any document to show the cash paid for the purchase of suit property anywhere else. The original of receipt Ex.DW- 3/DX(OSR). He admitted that it has not been stated in Ex.DW- 3/DX regarding the mode of payment and added that it was made in cash. He further admitted that Ex.DW-3/DX was witnessed by him. He stated that he had not filed any case against the Plaintiff for cancellation of documents in his favour and added that he did not have any knowledge in favour of the CS/6514/2016 Page 28 of 41 plaintiff. He stated that the Defendant no.1 had never appraised him for any dispute between him and Gomti Devi and the time of execution of the sale document and he and his wife did not participate in the transaction qua the suit property between Defendant no. 1 and Gomti Devi. He stated that he had not pursued the complaint Mark 1 and he had no knowledge regarding the status of the complaint. He stated that he had not shown the amount of consideration and receipt Ex.DW-3/DX as he was not an income tax payee at the relevant time.
11. I have heard arguments advanced by Ld. Counsel for the Parties and gone through the material available on record. My issue-wise findings are as under:-
12. Issue no.1 - Whether the relief of declaration is barred by limitation? OP on parties The onus to prove this issue was on both the parties.
12.1. It is the case of the Plaintiff as per the Plaint that the cause of action arose in favour of the plaintiff when the suit property was purchased by the plaintiff from Gomti Devi and it further arose when the plaintiff took over the possession of the suit property from the Defendant. It is further averred in the para 24 of the Plaint, that the cause of action arose in 08.11.2008 when the Plaintiff visited the premises and found the locks put by him on the suit property broken by the Defendants with the collusion with each other. It is further stated that the cause of action arose when the matter was immediately reported by the local police by the Plaintiff and it further arose when Defendant CS/6514/2016 Page 29 of 41 no. 2 & 3 in collusion with Defendant no. 1 started residing in the suit property. It is further averred in the aforementioned para that cause of action arose that when the BSES without verifying the factual position deliberately installed the electricity in the suit property. It is further averred that the cause of action arose when the Defendnats threatened the plaintiff in case the plaintiff did not refrain himself from the suit property and they threatened the plaintiff to create third party right and title. It is further stated in para 24 of the plain that the cause of action was continuing and subsistence. It is further stated that the present suit was filed on 19.03.2010 on behalf of the plaintiff seeking declaration that he be declared as absolute and lawful owner of the suit property in question and further declared that the alleged title deeds such as sale deed, possession letter and agreement to sell issued in favour of Defendant No. 2 & 3 executed by Defendant no. 1 as attorney of deceased Gomti Devi.
12.2 The Defendant No. 1 in his written statement has stated that Defendant no. 1 purchased the suit property from Smt. Gomit Devi vide GPA, Agreement to sell and purchase, affidavit, receipt possession letter all dated 08.12.2004 and further sold the same to Smt. Jasbir Kaur, wife of Sh. Lakhbir Singh vide GPA, Registered Will, Affidavit, which was handed over to her by Defendant no. 1 on 10.02.2006. It is stated that the present suit is barred by limitation plaintiff had knowledge since 2004 that Defendant No. 1 had purchased the suit property.
12.3 At this stage, it is significant to mention that period of limitation for the purpose of relief of declaration is 3 years as CS/6514/2016 Page 30 of 41 per Article 58 of the Limitation Act.
12.4 Article 58 of the schedule of Limitation Act, 1963 prescribes that to get a relief of declaration in a suit, the suit is required to be filed within 3 years from the date when the right to sue first accrues to the Plaintiff, successive violation of the right would not given rise to fresh cause and the suit would be liable to be dismissed if it is filed beyond the said period of limitation counted from the day when the right to sue first accrues to he Plaintiff. Reliance is placed on the judgment of Khatri Hotels Pvt Ltd., Another Vs. UOI & Another, (2011) 9 SCC 126.
12.5 In this context it is pertinent to mention that PW-1 the Plaintiff himself during his cross-examination dated 30.04.2016 stated that he became aware of the Agreement to Sell and purchase executed between Gomti Devi and Manoj Kumar in 2004, which is the same year when Defendant No. 1 had transactions with Gomti Devi qua the property in question. It is not the case that the plaintiff herein was not aware about the transactions of the Defendant no. 1 with Gomti Devi or that he became aware later on. In fact, it has come on record during trial that it was the plaintiff himself who had moved an application seeking impleadment of Defendant no. 1 vide in under Order 1 Rule 10 CPC in the suit filed by him before Ld. ADJ, Tis Hazari Courts, which was subsequently withdrawn as compromised and the Plaintiff had withdrawn present application prior to his purported compromise/settlement with Gomti Devi. The present suit has been filed by the Plaintiff on 19.03.2010, which is CS/6514/2016 Page 31 of 41 approx 6 years after the plaintiff became aware of the transactions between Defendant no. 1 and Gomti Devi. It is further the case of the Defendant no. 2 and Defendant no. 3 that they had purchased the suit property from Defendant no. 1 purportedly on 10.02.2016. It is pertinent to mention that the Plaintiff is seeking declaration of ownership qua the Defendants herein and further seeking a declaration that the documents executed qua the suit property dated 10.02.2006 be declared null and void. As already reiterated aforesaid the present suit has been filed only in 2010. The evidence lead during trial reveals that the Plaintiff was aware and had knowledge of the transaction of Gomti Devi and Defendant no. 1 herein since 2004. The Plaintiff has also admitted that the possession of the suit property is with Defendant no. 2 and Defendant no. 3.
In view of the settled proposition of law and the facts as stated above, in the considered opinion of this court the relief sought by the Plaintiff of declaration is barred by limitation. This issue is accordingly decided against the Plaintiff.
13. Issue No. 3& 4 are decided together being interconnected.
Issue No. 3- Whether the plaintiff is entitled for relief of declaration? OPP Issue No. 4- Whether the plaintiff is entitled to relief of possession? OPP The onus to prove these issues are on the Plaintiff.
13.1 The plaintiff has filed the present suit seeking reliefs of declaration that he be declared as the owner of the suit CS/6514/2016 Page 32 of 41 property and that the documents executed in favour of Defendant no. 2 & 3 by Defendant no. 1 be declared as null and void. The Plaintiff has further sought possession of the suit property on the ground that he is the owner. The plaintiff has in support of his contentions relied upon the compromise entered between him and Gomti Devi in Mediation with respect to suit property in Civil Suit No. 268/2006, wherein the Plaintiff had filed a Civil Suit seeking specific performance of the Agreement to sell executed in his favour by Gomti Devi. Perusal of the record reflects that the aforesaid suit was withdrawn as compromised on the basis of the mediation agreement executed between the Plaintiff and Gomti Devi. It is significant to mention that the Ex.PW-1/4 is the settlement agreement entered between the parties before Mediation Centre which states that the Plaintiff i.e. Darshan Kumar had entered into an agreement to sell with Gomti Devi and Gomti Devi has already executed a sale deed in respect of the suit property. At this stage, it requires mentioning that the Plaintiff during his cross-examination has admitted that he did not inform the mediator or the Ld. ADJ about the transactions of the Gomti Devi with Defendant no. 1 at the time of settlement, which further casts a doubt as to the intention of the Plaintiff herein.
13.2 It is pertinent to mention at this stage, on the careful and meaningful reading of the documents relied upon by the Plaintiff during his deposition reflect that no such documents/sale deed as mentioned n Ex.PW-1/4 has been filed by him or relied during trial or even placed on record. The record of the present case is devoid of such documents and the plaintiff CS/6514/2016 Page 33 of 41 has on the contrary filed a GPA, Will, registered on 25.01.2008 Ex.PW-1/8 and Ex.PW-1/9 executed by Gomti Devi in favour of the Plaintiff. It is no more res-integra that it is a settled proposition of law in view of the judgment of Hon'ble Apex Court as laid down in Suraj Lamps Vs. State of Haryana, 2012 AIR SC 2006, wherein it has been held that "transfer of property by way of sale can only be by way of conveyance (sale deed) and in the absence of the deed or conveyance (duly stamped and registered as per law) no right, title or interest in an immovable property can be transferred". Therefore, though, the plaintiff has claimed to be the owner and the documents relied upon by him .i.e. registered GPA, Will etc., which do not transfer the ownership rights to him or convey any title to the suit property. The Plaintiff has relied upon Ex.PW-1/2 dated 05.11.2005 to show the payment of sale consideration and the Agreement to Sell between him and Gomti Devi.
13.3 It is further significant to mention that during the cross-examination of Plaintiff as PW-1, he further stated that the suit property was sold to Dheeraj Yadav in 2004 for Rs. 9 lacs and he thereafter PW-1 also stated during his cross-examination that when he written the Bayana Receipt dated 05.11.2005 Ex.PW-1/2, the same was written by him and it was in favour of Mr. Vimal Goyal, with whom he had gone to the house of Gomti Devi. He further stated that the said blanks in Mark Z were filled by him on 23.10.2007. In fact, PW-1 further stated during his cross-examination he has no receipt in favour of Mr. Vimal Goyal as the bayana receipt was written in his name. PW-1 during his cross-examination dated 30.04.2016 further stated CS/6514/2016 Page 34 of 41 Ex.PW-1/2 which was the bayana receipt dated 05.11.2005 was initially executed by him on behalf of Mr. Vimal Goyal and that at the time of execution of Ex.PW-1/2, he had no interest in the suit property or any intention to purchase the same. The plaintiff further stated in the cross-examination though Ex.PW-1/2 was recorded in his name, the actual purchaser of the suit property was Mr. Vimal Goel and he further admitted that the consideration recorded in Ex.PW-1/2 was not paid by him. He further stated that he did not know whether Defendant no. 1 had purchased the property from Gomti Devi prior to the execution of Ex.PW-1/2. Accordingly, perusal of the aforesaid reflects that the bayana receipt Ex.PW-1/2 which has been relied upon by the Plaintiff to show payment of some consideration was in fact made by a person Vimal Goyal, who had intended to purchase the property. This court is unable to comprehend as to why the Plaintiff would agree to be the purchaser of the suit property on behalf of another person when he himself has admittedly not paid the sale consideration. Furthermore, it is pertinent to mention that Mr. Vimal Goyal has not been examined as a witness by the Plaintiff and the Defendants have been able to cast a doubt as to the actual execution of Ex.PW-1/2 and the entire transaction qua the sale and purchase of the suit property between the Plaintiff and Gomti Devi.
13.4 In the present case, the Plaintiff has not sought the relief of declaration that the documents purportedly executed by Gomti Devi in favour of Defendant no. 1 Manoj Kumar be declared as null and void but has sought declaration that the documents executed by Defendant no. 1 Manoj Kumar in favour CS/6514/2016 Page 35 of 41 of Defendant no. 2 & 3 Jasbir Kaur and Lakhbir Singh be declared as null and void.
13.5 It has come on record that Defendant no. 2 & 3 are in possession of the suit property. The Plaintiff has though averred that he have been dispossessed from the suit property. No evidence qua this averment has been lead during trial. Furthermore, the Plaintiff stated during his cross-examination dated 08.08.2018 that the chain of title documents was handed over to Defendant no. 1 by Gomti Devi. He further stated that he was not aware in whose possession the suit property had been after the year 2004 or that he was ever in possession of the suit property. It is significant to mention that the plaintiff in his cross-examination has stated that he had received possession of the suit property from Gomti Devi at the time execution of bayana receipt Ex.PW-1/2 in the year 2005. He further stated that he could not state why the same was not mentioned in his pleadings in the present suit in the earlier suit filed for specific performance by him against Gomti Devi. It is pertinent to note that though the plaintiff is claiming possession on execution of bayana receipt Ex.PW-1/2 in 2005, the Plaintiff has himself stated during his cross-examination that the bayana receipt was issued on behalf of Mr. Vimal Goyal and the sale consideration was paid by him. No evidence has been produced by the Plaintiff to show when he was dispossessed or whether he had been ever in possession of the suit property as claimed by him.
13.6 Perusal of the record further reflects that the sons of Gomti Devi, namely Ramesh Kumar and Naveen Kumar were CS/6514/2016 Page 36 of 41 examined as PW-3 and PW-4 respectively by the Plaintiff, who in their cross-examination have stated that they had not seen the chain of title documents in respect of the transfer of property by Gomti Devi to the Plaintiff or that their mother has ever handed over the chain of documents to Darshan Kumar. It is significant to mention that the Plaintiff identified the signature of Gomti Devi on Ex.PW-1/D1 to Ex.PW-1/D5 which are the documents purportedly executed by Gomti Devi in favour of Defendant no. 1 qua the suit property. The factum that the Plaintiff was aware of the transactions between Gomti Devi and Manoj Kumar and also aware that the chain of title documents were not available with him and had been handed over to Manoj Kumar i.e. Defendant no. 1 by Gomti Devi creates a doubt as to the contentions made by the Plaintiff herein. In the entire gambit of facts and circumstances as stated above, it appears that the Plaintiff has not approached the court with clean hands. Therefore, in view of the aforesaid facts, in the considered opinion of this court, the plaintiff has failed to show its entitlement qua the relief of declaration that he is the owner of the suit property or that the documents pertaining to Defendant no. 2& 3 as null and void.
13.7. With respect to the relief of possession, in view of the factum that the plaintiff has been unable to show its entitlement for the relief of declaration, the possession being a consequential relief cannot be granted to the Plaintiff. Both these issues are accordingly decided against the Plaintiff.
CS/6514/2016 Page 37 of 4114. Issue No. 2- Whether the suit is barred under Order 2 Rule 2 CPC? OPD1.
The onus to prove this issue was on Defendant no.1.
14.1 At the outset, it is significant to mention that the Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the Plaintiff was entitled to make in respect of the cause of action and if the two suits and two reliefs are claimed are based on the same cause of action, then the subsequent suit was debarred under Order 2 Rule 2 CPC. By way of the present suit, the present has sought relief of declarations, possession as well as injunction against Defendant No. 1 as well as Defendant no. 2 & 3.
14.2 It is pertinent to mention that the Plaintiff has filed the previous suit against Gomti Devi in 2006 seeking specific performance and perpetual injunction. It was averred in the aforesaid suit certified copy of which is Ex.DW-1/13 that Plaintiff had entered into an agreement to sell with Gomti Devi and the Agreement cum receipt dated 05.11.2005 had been executed. Gomti Devi in the written statement had averred that she had sold the suit property to Manoj Kumar in 2004 itself and had also handed over the possession of the suit property to him. The Plaintiff preferred to move an application under Order 1 Rule 10 CPC seeking impleadment but the same was withdrawn and the Plaintiff settled the matter with Gomti Devi by way of the mediation agreement Ex.PW-1/3. It is the case of the Defendant that the Plaintiff had withdrawn the application without taking permission of the court to file any suit against CS/6514/2016 Page 38 of 41 Defendant no. 1 and accordingly gave up his right to seek any relief against the Defendant no. 1 herein.
14.3 In the judgment of Gurbux Singh Vs. Bhura Lal 1964 AIR SC 1810, it was observed that:
"In order that a plea of bar under Order 2 Rule 2(3) of CPC should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more that one relief (iii) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.
14.4 It is not a disputed fact that the Plaintiff had earlier sought impleadment of Defendant no. 1 in the previous suit filed by him for specific performance and thereafter unilaterally withdrew the aforesaid application under Order 1 Rule 10 CPC.
14.5 In the present case, it has come on record during trial that the Plaintiff has all time aware about the transactions between the Gomti Devi and Defendant no. 1 from 2004 itself and he firstly did not implead Defendant no. 1 in the earlier suit for specific performance and thereafter withdrew the application for impleadment of Defendant no. 1 under Order 1 rule 10 CPC prior to its adjudication by the Ld. Court. Both the suits are with respect to the same cause of action and the Plaintiff cannot now, CS/6514/2016 Page 39 of 41 by way of the present suit seek relief from Defendant no. 1 which he could have earlier sought. In fact as already reiterated above the plaintiff was aware about the transactions of Gomti Devi with Defendant no. 1 and ought to have sued for the whole of the claim qua the cause of action which had arisen in 2004 itself. In fact, the withdrawal of the application under Order 1 Rule 10 of the impleadement of Defendant no. 1 in the erstwhile suit appears to be a collusion between Gomti Devi and Plaintiff herein that despite being aware that Gomti Devi had entered into an transaction with Defendant no. 1 in 2004, the parties entered into a settlement in 2008 qua the suit property amongst themselves without the participation of Defendant no. 1. The present suit has been filed in 2016 and therefore, the Plaintiff is barred under Order 2 Rule 2 CPC to seek reliefs from Defendant no. 1 in the present suit. This issue is accordingly decided in Defendant no. 1 and against the Plaintiff.
15. Issue No. 5- Whether the plaintiff is entitled to relief of permanent injunction?OPP The onus to prove this issue was on the Plaintiff. In the present case, it has already been observed that the Plaintiff has not approached the court with clean hands and the entire set of facts and circumstances discussed show that the conduct of the Plaintiff does not warrant any relief of permanent injunction in his favour. Accordingly, this issue is decided against the Plaintiff.CS/6514/2016 Page 40 of 41
RELIEF
16. From the discussions, as adumbrated herein-above, the Plaintiff has failed to prove its case. The present suit is hereby dismissed. No order as to cost.
Decree-sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the Open Court on 28.02.2023 (Gurmohina Kaur) Additional District Judge South District: Saket Courts New Delhi CS/6514/2016 Page 41 of 41