Delhi District Court
Smt. Gurmeet Kaur vs Delhi Development Authority on 14 January, 2013
Suit No. 559/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 559/2006
Smt. Gurmeet Kaur
..............Plaintiffs
Versus
1. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendants
Date of institution :
Arguments heard on :
Date of decision :
JUDGMENT: This is a suit for declaration and consequential reliefs. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that her mother Smt. Adar Kaur w/o Late Sh. Harbhajan Singh R/o WZ255, Gali No. 14, Shiv Nagar, jail road, New Delhi was the exclusive and absolute owner in possession of the built up property no. F137, PhaseII, Rewari Line, Industrial Area/Mayapuri Industrial Area, New Delhi (hereinafter referred to as 'suit property) with Gurmeet Kaur Vs. DDA 1/13 Suit No. 559/2006 its leasehold rights situated on an area of 167 sq. yds having purchased the same from the defendant no. 2 for valuable consideration of Rs 2,25,000/ vide agreement to sell dated 22.06.1993/01.07.1993 besides supplementary agreement dated 02.03.1994 executed by the defendant no. 2 in favour of said Smt. Adar Kaur along with further documents consisting of affidavit, indemnity bond dated 02.03.1994, registered Will dated 02.03.1994 and final receipt of payment of Rs. 2,25,000/. Since 22.06.1993 the possession of the suit property had been with Smt. Adar Kaur mother of the plaintiff and she alone had been dealing with the aforesaid property as its absolute owner to the exclusion of defendant no. 2. Unfortunately, Smt. Adar Kaur expired on 15.12.2005 leaving behind a valid and genuine Will dated 07.12.2005 thereby bequeathing the suit property in favour of the plaintiff. As such, the plaintiff is the absolute and exclusive owner of the suit property. The leasehold plot underneath the suit property was allotted by the defendant no.1 to the defendant no. 2 for valuable consideration vide allotment letter No. F21(721)75/LSB/1 dated 17.11.1975 followed by the issuance of perpetual lease deed which is duly registered. Plaintiff submits that the defendant no.2 is a dishonest person and in February, 2003 he filed a suit for declaration and injunction against the mother of the plaintiff and her father Sh. Harbhajan Singh challenging the said agreements to sell Gurmeet Kaur Vs. DDA 2/13 Suit No. 559/2006 etc. and the said suit no. 82/2003 was dismissed by the Court of Sh. Jitendera Mishra, the then Ld. Civil Judge, Delhi on 11.05.2004. The defendant no. 2 filed an application for restoration of the said suit under Order 9 Rule 9 CPC and the said application of the defendant no. 2 was also dismissed.
Defendant no. 2 has filed an application dated 09.05.2006 with the defendant no.1 for conversion of the suit property from leasehold to freehold one and consequently has deposited some amount as conversion charges along with other documents without disclosing to defendant no. 1 that he is no longer the owner in possession of the suit property in terms of the said agreements to sell etc. and in further he is left with no right, title or interest therein and hence his said application before the DDA is not maintainable. Vide legal notice dated 29.04.2006 under Section 53 B of DD Act and duly received by the defendant no. 1, the plaintiff requested the defendant no. 1 not to entertain the said application of the defendant no. 2 for conversion of the suit property to freehold one. Defendant no.1 through its Deputy Director Sh. Budh Ram vide his letter dated 01.06.2006 has undertaken to take into th consideration the submissions of the plaintiff. On the after noon of 20 st and 21 September, 2006 the defendant no. 2 came to the suit property and threatened the plaintiff and her husband to get the suit property Gurmeet Kaur Vs. DDA 3/13 Suit No. 559/2006 converted into a freehold one in a day or two otherwise as and when he gets an opportunity to do so he will do the same in connivance with the concerned staff/employees of defendant no. 1.
2. Therefore, plaintiff filed the present suit praying that a decree of permanent injunction be passed in favour of the plaintiff and against the defendants thereby restraining the defendant/DDA from entertaining the application dated 09.05.2006 or any other application of defendant no. 2 for conversion of lease hold plot no. F137, PhaseII, Rewari Line Industrial Area/Mayapuri Industrial Area, New Delhi from leasehold to freehold except in favour of the plaintiff with cost of the suit.
3. In the written statement filed by defendant no. 1/DDA, it is stated that the suit has not been properly valued for the purpose of Court fee and jurisdiction. No cause of action exists in favour of the plaintiff and against the defendant/DDA. The present suit is not maintainable in its present form as the plaintiff is seeking declaration under the garb of injunction. It is further stated that the suit property was allotted by the DDA in favour of one Sh. Balwant Singh S/o Sh. Ujagar Singh i.e defendant no. 2 and consequently the perpetual lease deed of the plot was executed on 22.06.1981. Further, it is submitted that any sale purchase by the defendant no. 2 in favour of anybody without the permission of the DDA is illegal and void abinitio. \ Gurmeet Kaur Vs. DDA 4/13 Suit No. 559/2006 DDA allotted the suit property with leasehold rights to defendant no. 2 for valuable consideration, the demand cum allotment letter was issued by the DDA to the defendant no.2 on 27.11.1975 and after deposition of the demanded amount the possession of the plot was handed over to defendant no. 2 by DDA on 29.11.1975 and perpetual lease deed of the plot was executed on 22.06.1981. It is submitted that defendant no. 2 vide application no. 4267 dated 09.05.2006 applied for conversion of the plot from leasehold to freehold to the DDA by depositing the conversion fee and requisite documents. A legal notice dated 29.04.2006 was received from Sh. V.P. Malik, Advocate on behalf of the plaintiff and the same was replied to by DDA vide letter dated 01.06.2006. Simultaneously, DDA also sent a letter dated 01.06.2006 to defendant no. 2 to clarify the position. Finally the application for conversion of defendant no. 2 was rejected by the DDA and same was duly intimated by DDA to defendant no.2 vide letter dated 22.06.2006. Defendant no. 2, however vide his letter dated 07.07.2006 furnished one photocopy of cancellation of GPA and cancellation of Will which was duly replied by DDA vide its letter dated 27.07.2006.
4. The plaintiff filed replication to the written statement of defendants wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written Gurmeet Kaur Vs. DDA 5/13 Suit No. 559/2006 statement. It is further stated that as per the scheme of conversion from leasehold system into freehold, August, 2003 of the DDA, the sale on the lease hold plot is permissible on payment of conversion fee and hence the said allegation of DDA stands demolished/falsified.
5. Vide order dated 24.12.2007 following issues had been framed by my Ld. Predecessor :
1. Whether the plaintiff is entitled for decree of permanent injunction as prayed in para 11 of the plaint? OPP
2. Whether the suit has been properly valued for the purpose of Court fee and jurisdiction? OPD
3. Whether the present suit is not maintainable in the present form? OPD
4. Whether the plaintiff has any locus standi to file the present suit? OPD
5. Whether there is no cause of action in favour of plaintiff? OPD1
6. Relief.
6. Plaintiff examined only one witness in her support. PW1, Sh. Bhupender Singh, entered the witness box on 28.04.2009 and tendered his affidavit Ex PW1/A in evidence which states the same facts as are stated in the plaint. He relied on Ex PW1/1 which is the special power of attorney in favour of PW1. Ex PW1/2 is the site plan of the suit property. Ex PW1/3 and Ex PW1/4 are the agreement and the supplementary Gurmeet Kaur Vs. DDA 6/13 Suit No. 559/2006 agreement allegedly executed by defendant no.2 in the favour of plaintiff. Ex PW1/5 to Ex PW1/7 are the affidavit, indemnity bond and receipt executed by defendant no.2. Ex PW1/8 is the certified copy of plaint and Ex PW1/9 is the certified copy of written statement filed by parents of plaintiff in another suit filed by defendant no.2. Certified copy of application filed by defendant no.2 in that suit is Ex PW1/9C. Certified copies of orders passed in that suit are Ex PW1/9A, Ex PW1/9B and Ex PW1/9D. Death certificate of plaintiff's mother is Ex PW1/10. Will allegedly executed by plaintiff's mother is Ex PW1/11. Copy of notice under Section 53B, Delhi Development Act and its original reply are Ex PW1/12 and Ex PW1/13.
7. Defendant no. 1 examined two witnesses in its support. DW1, Sh. P.P. Sharma, Assistant Director, entered the witness box on 13.02.2012 and tendered his affidavit Ex DW1/X in evidence which states the same facts as are stated in the written statement. He relied on Ex DW1/1(OSR) which is the copy of perpetual lease in favour of defendant no.2. Ex DW1/2(OSR) is the copy of show cause notice dated 08.12.1997 and Ex DW1/3(OSR) is the copy of final show cause notice. Copy of reply to legal notice by defendant no.1 is Ex DW1/4(OSR). Copy of letter dated 22.06.2006 sent to plaintiff is Ex DW1/5(OSR). Mark X is the copy of Gurmeet Kaur Vs. DDA 7/13 Suit No. 559/2006 cancellation of Will by defendant no. 2 and Ex DW1/7(OSR) is the copy of reply dated 27.07.2006 by defendant no.1 to defendant no.2.
8. DW2, Sh. Ram Kishan, Assistant Engineer, DDA entered the witness box on 19.09.2012 and tendered his affidavit Ex DW2/X in evidence which states the same facts as are stated in the written statement. He relied on Ex DW2/1(OSR) which is the copy of site inspection report dated 08.10.1997. Ex DW2/2 which is the copy of site inspection report dated11.08.2006.
9. Defendant no. 2 did not lead any evidence in the present suit.
10.I have heard the parties and have perused the record carefully.
11. Issue wise findings are as under:
Issue no.1: Whether the plaintiff is entitled for decree of permanent injunction as prayed in para 11 of the plaint? OPP The onus of proving this issue was on the plaintiff. It is the case of plaintiff. Plaintiff has relied upon Ex PW1/3 to Ex PW1/7 to say that defendant no.2 had entered into agreement with plaintiff to sell the suit property. However defendant no.2 has denied execution of such agreement and other accompanying documents. It is his case that he had put his signatures on blank papers which were fraudulently used by plaintiff's mother.
Plaintiff has not brought the attesting witnesses to the witness Gurmeet Kaur Vs. DDA 8/13 Suit No. 559/2006 box to testify that Ex PW1/3 to Ex PW1/7 were signed by defendant no.2 with full knowledge of the contents of the documents or to state that the documents were not blank when he put his signatures. Apart from the ipse dixit of attorney of plaintiff, there is nothing to prove these documents. These documents, having been denied by the executor/defendant no.2, have remained unproved.
Plaintiff has also relied on Ex PW1/9, Ex PW1/9C and orders Ex PW1/9A, Ex PW1/9B and Ex PW1/9D to say that defendant no.2 had filed a suit for declaring the agreement Ex PW1/4 null and void which was dismissed in default. However this does not help the case of plaintiff as the dismissal was not on merits. Though defendant no.2's application for restoration of that suit was also dismissed but that does not stop the defendant no.2 from raising the nonexecution of agreement in his defence.
Similarly, the Will Ex PW1/11 in favour of plaintiff has also not been proved by calling the attesting witnesses.
12. Another point to be considered is that the plaintiff has not entered the witness box. The power of attorney Ex PW1/1 in favour of PW1 states that the plaintiff is preoccupied with house hold work and therefore, she has given to PW1 the authority to pursue the present suit. However it is not understood why she has not chosen to depose in the present matter Gurmeet Kaur Vs. DDA 9/13 Suit No. 559/2006 as there can be no authority to depose on somebody's behalf. It is settled law that the plaintiff who chooses not to enter the witness box runs the risk of an adverse inference being drawn against him/her. It is bounden duty of a party personally knowing whole of the facts to give evidence and subject himself to cross examination. Nonappearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. Reliance is placed on the judgment of the Privy Council in the case of Gurbaksh Singh v Gurdial Singh cited at AIR 1927 PC 230.
Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
13. Issue no.2: Whether the suit has been properly valued for the purpose of Court fee and jurisdiction? OPD The onus of proving this issue was on the defendant. No evidence has been addressed on this issue. Perusal of the plaint reveals that the only relief claimed by plaintiff is that of permanent injunction and the same has been properly valued at Rs 130/.
Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
14. Issue no.3: Whether the present suit is not maintainable in the present form? OPD Gurmeet Kaur Vs. DDA 10/13 Suit No. 559/2006 The onus of proving this issue was on the defendant. No evidence has been addressed on this issue.
Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
15. Issue no.4: Whether the plaintiff has any locus standi to file the present suit? OPD Issue no.5: Whether there is no cause of action in favour of plaintiff? OPD1 Both these issues are connected and are therefore, being decided together. The onus of proving these issues was on the defendant. No evidence has been led on this issue. It is the case of plaintiff that she is in possession of the property which fact has not been controverted by defendant no.2. It is also admitted case of the parties that defendant no.2 had applied for conversion of freehold rights in his favour.
Accordingly, these issues are decided in favour of the plaintiff and against the defendants.
16. Issue no.6 : Relief In view of the aforesaid discussion, suit of the plaintiff is dismissed. In view of the facts of the case, parties to bear their own Gurmeet Kaur Vs. DDA 11/13 Suit No. 559/2006 costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court on 14.01.2013 at 04:00 PM (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/14.01.2013.
Gurmeet Kaur Vs. DDA 12/13