Delhi District Court
Dinesh Tyagi vs Brijesh Tyagi on 14 November, 2014
IN THE COURT OF SH. RAVINDER SINGH1. ADDL. DISTRICT JUDGE08
(CENTRAL):TIS HAZARI COURTS: DELHI
SUIT NO. 211/14
(Old No. 421/09)
Dinesh Tyagi
S/o Sh. Sahi Ram Tyagi
R/o KA50, Karpuri Puram,
Ghaziabad, U.P. ................ Plaintiff
versus
Brijesh Tyagi
S/o Sh. Sahi Ram Tyagi
R/o B11, Shastri Park,
Nathupura Mor, in front of
Joseph & Marry Public School,
100 Futa BurariNathupura Road,
Burari, Delhi110084. ..............Defendant
Date of Institution : 21.08.2009
Date on which judgment was reserved : 11.11.2014
Date of Pronouncing judgment : 14.11.2014
SUIT FOR RECOVERY OF POSSESSION AND OF MESNE
PROFITS/DAMAGES
SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 1 / 22
JUDGMENT:
1. Vide this judgment, I shall dispose of suit of Sh. Dinesh Tyagi (hereinafter called plaintiff) which he filed against his brother Sh. Brijesh Tyagi (hereinafter called defendant) for recovery of possession and of mesne profits/damages.
2. Brief facts leading to file the instant suit are that plaintiff is absolute owner of piece of land measuring 466½ sq.yards approximately forming part of khasra no. 12/16/2 & 12/17 of village Burari, Delhi, consisting of one kachcha room with tin roof and duly bounded by pucca wall from three sides, situated in the Abadi known as Shastri Park, Nathupura Mor on 100 Futa, Burari, Nathupura Road, Village Burari, Delhi110084 (hereinafter called suit property). Plaintiff alleged that defendant revealed to him that initially one Sh. Om Prakash S/o Sh. Giani Ram was recorded owner and in possession of land bearing khasra no. 12/16/2 (116) and 12/17 (416) total measuring 6 Bighas 12 Biswas to the extent of 35/132 share i.e. 1 Bigha & 15 Biswas of Village Burari, th SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 2 / 22 Delhi who sold his aforesaid piece of land to defendant on 18.04.1996 vide Agreement to Sell, Receipt, Possession Letter, Affidavit, Indemnity Bond, Registered Will and delivered actual physical possession to defendant on the same day and also executed registered GPA in favour of nominee of the defendant namely Sh. Ram Phool Tyagi. Plaintiff further alleged that defendant persuaded him to purchase a piece of land out of his above property stating that he was in dire need of money for carrying out his business so he agreed to purchase suit property for a total sale consideration of Rs. 40,000/ to the plaintiff and he paid Rs. 40,000/ in cash to defendant on 25.05.1999 in the presence of witnesses and thereafter defendant executed agreement to sell, receipt, affidavit and registered Will and also delivered actual physical possession to plaintiff on the spot. Plaintiff further stated that nominee of defendant Sh. Ram Phool Tyagi also executed registered GPA in his favour. Plaintiff further alleged that since 25.05.1999, he used to occupy, possesses and enjoy the same continuously without any interference. Plaintiff SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 3 / 22 further alleged that he shifted to Ghaziabad in the year 2000 but he used to visit and look after the suit property each month regularly and sometimes he used to take night stay along with his family therein. Plaintiff further alleged that in the morning of 03.06.2008, he along with his family visited the suit property on tractor bearing registration no. HR429902 to stay there for few days but defendant started quarreling with him with ulterior object and malafide intention and started throwing his household articles from the suit property. He resisted defendant attempt but defendant succeeded to dispossess him from suit property forcibly and illegally. Plaintiff further alleged that he made a call at 100 no. so local police made a kalandra u/s. 107/151 Cr.P.C. Plaintiff further alleged that defendant is in illegal and unauthorised occupation of suit property since 03.06.2008 so he made repeated requests and demand from defendant on several occasions to handover actual physical possession of suit property to him but defendant did not accede his request with malafide intention. Hence, he served legal notice dated SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 4 / 22 06.06.2009 upon the defendant but he failed to comply the same. Plaintiff further alleged that on 15.07.2009, defendant visited his residence and extended threats with dire consequences. Hence, he filed the instant suit.
3. Summons of suit were served upon the defendant who filed his written statement stating therein that plaintiff has no cause of action and he has no locus standi to file the present suit. Defendant stated that plaintiff came from Ghaziabad on 03.06.2008 and created a scene over the suit property resulting into initiation of kalandra proceedings U/S. 107/151 Cr.P.C. against them. The said proceedings later on set aside by Court of Ld. ASJ vide order dated 26.11.2008. Defendant further alleged that plaintiff is trying to take benefit of gesture shown by him to overcome a situation in helping to sustain marriage of the plaintiff. He alleged that plaintiff being unemployed running out of a marriage age so their father without his knowledge pretended and represented to in laws of plaintiff that plaintiff has a high value property just aposing the plot of the defendant so that marriage of SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 5 / 22 plaintiff could be performed on 12.12.98. Defendant alleged that his father along with relative requested him to save the honour of his father and family by showing some documents of property in the name of plaintiff. So encircled by the situation and moved by sentiments and emotion induced by his father and relative, he agreed to prepare the documents dated 25.05.1999 as a mere empty formality as was requested by them. Infact no money ever given by the plaintiff nor transacted in respect of suit property. Defendant further alleged that taking benefit of the said documents dated 25.05.99 , plaintiff is trying to usurp his property. Accordingly he immediately cancelled the registered Will in respect of suit property on 02.09.08 and informed the same to plaintiff through registered AD on 20.09.2008. Defendant also alleged that he is carrying out his business of Aara Machine in the property since 1996 so plaintiff has no legal connection with the suit property which is exclusively belongs to him. Defendant denied that he offered to sale the suit property for a consideration of Rs. 40,000/ to the plaintiff and handing over of actual SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 6 / 22 physical possession of the suit property on the spot. Defendant also denied of any construction of foundation wall of the partition upto DPC and kachcha room in the suit property by plaintiff. Accordingly, he prayed for dismissal of the suit with cost.
4. Plaintiff filed replication wherein he has not denied the cancellation of Will by defendant. Further plaintiff stated that the other documents i.e Agreement to Sell, affidavit and receipt executed by defendant has never been cancelled by defendant nor defendant got declared these document as null and void from any competent Court of law till date. Further defendant denied the other contents of the WS and reiterated the facts stated in the plaint.
5. From the pleadings of the parties following issues were framed vide order dated 27.03.2010: i. Whether the plaintiff has no cause of action to file the suit which is liable to be rejected under Order 7 Rule 11 CPC? (OPD) SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 7 / 22 ii. Whether the suit is not maintainable in the present form? (OPD) iii. Whether the plaintiff is the owner of the suit property on the basis of the documents executed by the defendant i.e. agreement to sell etc.? (OPP) iv. Whether the plaintiff was dispossessed from the suit property on 03.06.2008. If so its effect? (OPP) v. To what amount the plaintiff is entitled as mesne profit/damages? (OPP) vi. Relief.
6. To prove his case, plaintiff examined eight witnesses i.e. plaintiff himself as PW1, Sh. Naresh Kumar Prashar, UDC from office of SubRegistrarI, Kashmere Gate as PW2, Sh. Om Prakash, LDC from office of SubRegistrarI, Pitam Pura as PW3, HC Raju Kumar, PS Timar Pur as PW4, Sh. Satbir Singh, Halka Patwari as PW5, Sh. Parveen Tyagi as PW6, Sh. Ramesh as PW7 and Sh. Sahi Ram as PW8.
7. PW1 led his evidence on affidavit Ex. PW1/A. He proved site plan of suit property Ex. PW1/1, the original SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 8 / 22 agreement to sell Ex. PW1/2, receipt Ex. PW1/3, affidavit of defendant in his favour Ex. PW1/4, GPA executed by Sh. Ram Phool Tyagi in his favour Ex. PW1/5, certified copy of GPA executed by Sh. Om Parkash in favour of Sh. Ram Phool Tyagi Ex. PW1/6, legal notice Ex. PW1/7, certificate of posting Ex. PW1/8 & PW1/9 respectively and certified copy of DD No. 20B dated 03.06.2008 along with statement of Ct. Mehar Singh and copy of kalandra Ex. PW1/10 (colly.).
8. PW2 produced the GPA executed by Sh. Om Parkash in favour of Sh. Ram Phool Tyagi Ex. PW1/6. He also produced the Will executed by Sh. Om Parkash in favour of defendant Ex. PW2/1.
9. PW3 produced the GPA executed by Sh. Ram Phool Tyagi in favour of plaintiff Ex. PW1/5.
10.PW4 produced DD No. 20 dated 03.06.2008 Ex. PW4/1 and carbon copy of kalandra u/s. 107/151 Cr.P.C. dated 03.06.2008 Mark X. SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 9 / 22
11. PW5 produced the khatoni of village Burari for the year 199394 pertaining to khasra no. 12/16/2 (116) and 12/16/17 (416) Ex. PW5/A. He deposed that as per khatoni Sh. Om Prakash S/o Sh. Gyani Ram was the owner of the property.
12.PW6 led his evidence on affidavit Ex. PW6/A. He deposed that defendant sold the suit property to plaintiff in the year 1999 and he had seen the plaintiff constructing the partition wall upto DPC and one room in the suit property in the year 1999. PW6 also deposed that plaintiff reside in the suit property till 2000 and thereafter he left to Ghaziabad. He further deposed that in the morning of 03.06.2008 he saw the defendant throwing out the house hold articles of plaintiff from the suit property and defendant dispossessed the plaintiff from the suit property. Police came on the spot. PW6 further deposed that if suit property is let out today, a rent of Rs. 25,00030,000/ can be fetched from it. SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 10 / 22
13.PW7 also led his evidence on affidavit Ex. PW7/A and he deposed that on 03.06.2008 he found parties to the suit who are real brother are quarreling with each other. He also deposed that defendant was throwing house hold goods of plaintiff from suit property and thereby he dispossessed plaintiff, his wife and children from suit property, PCR van came and they took both of them to police station.
14.PW8 also led his evidence on affidavit Ex. PW8/A and he deposed that plaintiff who inclined to purchase suit property from defendant for a sum of Rs. 40,000/ arranged a sum of Rs. 30,000/ so he and his son Rakesh gave Rs. 5,000/ each to the plaintiff and thereafter plaintiff paid the agreed amount to defendant on 25.05.1999 and thereafter defendant executed title document in form of GPA in favour of plaintiff. He further deposed that defendant delivered actual physical possession of the suit property to the plaintiff in his presence and plaintiff erected foundation wall and constructed a temporary room for his residence. He also SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 11 / 22 deposed that on 05.06.2008 he along with his relative requested the defendant to restore the physical possession of the plaintiff in suit property but defendant did not accede their request.
15.After examination of plaintiff witnesses, defendant examined five witnesses i.e. Sh. Manoj Kumar, Jr. Judicial Assistant as DW1, Ct. Rakesh, PS Burari as DW2, HC Paras Ram, PS Timar Pur as DW3, Ct. Khetal, PS Subhash Palace as DW4 and Sh. Neeraj Kumar, Single Window Operator as DW5.
16.I have heard the arguments of Ld. Counsel for the plaintiff and defendant and perused the material placed on record.
17. My issues wise finding are as under: Issue no. (i) & (ii):
(a)The onus to prove that plaintiff has no cause of action to file the instant suit and suit is not maintainable in the present form is upon the defendant. Admittedly SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 12 / 22 defendant has not come in the witness box to discharge his onus. Further Ld. Counsel for defendant has not advanced any argument on these issues. Hence, both the issues are decided against the defendant. Issue no. (iii):
a) Ld. Counsel for plaintiff contended that the document possessed by the plaintiff i.e. Agreement to Sell, Affidavit, Receipt and G.P.A. Ex. Pw1/2, PW1/3, PW1/4 and PW1/5 respective are sufficient to confirm the title in favour of plaintiff qua the suit property. Ld. counsel for plaintiff, further contended that defendant had handed over the possession of the suit property on the date of execution of aforesaid documents dated 25.05.99. Hence plaintiff is owner of suit property on the basis of documents Ex. PW1/2, PW1/3, PW1/4 and PW1/5. In support of his argument he relied upon following judgments: I. Bhaurao Jagoji Junankar vs. Sau. Vandana Moreshwar Korale, AIR 2014 (NOC) 118 (BOM.), II. Harbans Singh vs. Shanti Devi, 1977, Rajdhani Law Reporter 487, SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 13 / 22 III. Daulat Ram & Ors. Vs. Sodha & Ors, (2005) 1 Supreme Court Cases 40, IV. Mahadeva & Ors. Vs. Tanabai, 2004. Rajdhani Law Reporter, 317 (SC), V. Tej Singh vs. Prabhu Narayan Sharma & Ors, AIR 2004 NOC 363 (Raj.), and VI. O.P. Aggarwal & ors. vs. Akshay Lal & Ors., 188 (2012) DLT 525.
b) Ld. Counsel for defendant contended that defendant has not executed any title document in favour of plaintiff as he does not wish to sale the suit property to the plaintiff. He further contended that the defendant executed agreement to sale Ex. PW1/2, receipt Ex. PW1/3 and affidavit Ex. PW1/4 in favour of plaintiff on request of his father & relative just to save the honour and prestige of family as plaintiff is running out of age of marriage. Ld. counsel for defendant further contended that plaintiff has not paid any consideration amount of Rs. 40,000/ so agreement to sale, receipt and affidavit do not confirm any right and title in favour of plaintiff qua suit SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 14 / 22 property. In support of his argument he relied upon following judgments:
I. Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., AIR 2012 Supreme Court, Page 206, and II. Jiwan Dass Rawal vs. Narain Dass & Ors., reported in AIR 1981 Delhi, Page 291.
c) It is admitted case of parties that Om Prakash S/o Sh. Gyani Ram sold his share of 1 Biga 15 Biswas to defendant for consideration of Rs. 1,35,000/ on
18.04.1996 and he executed agreement to sale Mark A, receipt Mark B, possession letter Mark C, affidavit Mark D and E, indemnity bond Mark F and Will Mark G in favour of defendant. it is also admitted that Sh. Om Prakash S/o Sh. Gyani Ram also executed GPA in favour of Ram Phool Tyagi on 18.04.96 Ex. PW1/6 and WILL in favour of defendant Ex. PW2/1. PW1 deposed that defendant sold suit property to him on 25.05.1999 out of 1 Biga and 15 Biswas for a consideration of Rs. 40,000/ and he executed agreement to sell Ex. PW1/2, receipt Ex. PW1/3 and affidavit Ex. PW1/4. PW1 also deposed that SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 15 / 22 the attorney Sh. Ram Phool Tyagi also executed GPA in his favour on 25.05.1999 Ex. PW1/5. Defendant denied the sale of suit property to the plaintiff. However he has not disputed the execution of Ex. PW1/2, PW1/3 & PW1/4 and further he has not disputed the execution of G.P.A. Ex. PW1/5 in favour of plaintiff by Sh. Ram Phool Tyagi on same date i.e. 25.05.1999.
d) Admittedly no GPA has been executed by defendant in favour of plaintiff. The only GPA Ex. PW1/5 was executed by Sh. Ram Phool Tyagi in favour of plaintiff qua suit property on 25.051999, Admittedly Sh. Ram Phool Tyagi is the attorney of Sh. Om Prakash S/o Gyani Ram vide G.P.A. Ex. PW1/6 and on the basis of said G.P.A. Ex. PW1/6, he executed the GPA Ex. PW1/5 in favour of plaintiff. So in view of this, It is clear that Sh. Ram Phool Tyagi executed a G.P.A. Ex. PW1/5 in favour of plaintiff being the attorney of Sh. Om Prakash and not of defendant. Admittedly, Sh. Om Prakash has sold the property comprising suit property to the defendant on 18.04.1996 so any G.P.A. qua suit property executed by SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 16 / 22 Sh. Ram Phool Tyagi being attorney of Sh. Om Prakash in favour of plaintiff qua suit property has no value as Sh. Om Prakash has no concern with the suit property as he has already sold the property to the defendant.
e) Admittedly the Will which was executed by defendant in favour of plaintiff qua suit property has been cancelled by defendant on 02.09.2008. Now, plaintiff has only the agreement to sell Ex. PW1/2, receipt Ex. PW1/3 and affidavit Ex. PW1/4 which was executed by defendant in his favour. It is pertinent to mention that plaintiff has neither the Will nor GPA of defendant in his favour qua suit property. So, the documents possessed by plaintiff are Ex. PW1/2, PW1/3 and PW1/4 and that too are not the registered documents. Admittedly plaintiff has no conveyance deed/sale deed in his favour qua suit property. Hon'ble Supreme Court in Suraj Lamp (supra) held that: "We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA Sales' or 'SA/GPA/WILL transfers' do not convey title and SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 17 / 22 do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales".
Admittedly plaintiff has neither the GPA nor the Will of the defendant in his favour. He has only the agreement to sell Ex. PW1/2, receipt Ex. PW1/3 and affidavit Ex. PW1/4 which do not convey any title in his favour qua suit property. Even in view of law laid down by Hon'ble Supreme Court in Suraj Lamp (Supra) the 'GPA sale' or 'SA/GPA/Will transfer' also do not convey title and nor it can be recognized by a valid mode of transfer of immovable property. So the ratio of case laws relied by SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 18 / 22 ld. Counsel for the plaintiff is not applicable in the present facts and circumstances of the case.
f) In view of aforesaid discussion, I am of considered opinion that the plaintiff is not the owner of the suit property on the basis of documents executed by defendant in his favour i.e. agreement to sell Ex. PW1/2, receipt Ex. PW1/3 and affidavit Ex. PW1/4. Accordingly, the aforesaid issue is decided against the plaintiff. Issue no. (iv):
a) PW1 deposed that defendant handed over the actual physical possession of suit property on 25.05.1999 and he built up partition wall upto DPC level and a room with tin roof as shown in site plan Ex. PW1/1. PW1 also deposed that he left to Ghaziabad in the year 2000 however he regularly visited to the suit property. PW1 also deposed that on 03.06.2008 he was dispossessed by the defendant from the suit property.
SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 19 / 22
b) Admittedly plaintiff has not disclosed when he started construction of foundation wall and kachcha room in suit property. He has not produced any bill, cash memo of building material purchased by him for the construction carried out by him in the suit property. He has also not disclosed the name of stockiest from whom he purchased the material. It is pertinent that plaintiff has not produced any document showing his address in respect of suit property during relevant period.
c) Further PW1 deposed that on 03.06.2008 defendant started throwing his house hold articles and inspite of his resisted attempt, defendant succeeded to take forcible possession of suit property from him. PW6 also deposed that defendant was throwing house hold articles of plaintiff and forcibly dispossessed plaintiff from suit property whereas PW7 deposed that defendant was throwing household goods of plaintiff and defendant dispossessed plaintiff, his wife and children from suit property.
SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 20 / 22
d) Admittedly neither PW1 nor PW6 and PW7 disclosed what house hold articles were throwing out by defendant from suit property. It is admitted case of parties that kalandra Ex. PW1/10 was made against them on 03.06.2008. It is not disputed that there is no mentioning of household articles found on spot in Kalandra Ex. PW1/10. It is pertinent that PW1 & PW6 simply deposed that defendant forcibly dispossessed the plaintiff from suit property but PW7 deposed that defendant dispossessed not only plaintiff but also his his wife and children from suit property.
e) It is pertinent that on one hand PW1 deposed that he was dispossessed from suit property by plaintiff on 03.06.2008. On other he deposed during his cross examination that defendant was not succeed to take forcible possession of suit premises prom him on 03.06.2008. Further PW1 during his cross examination deposed that he was staying on rent in the area of village Burari during 1998 to 2000 and he used to pay Rs. 1200/ for one room premises.
f) In view of above discussion, I am of considered SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 21 / 22 opinion that plaintiff was not resided in the suit property at any time and he had not carried out any construction in the suit property so, he was not dispossessed from suit property by defendant on 03.06.2008. Accordingly, this issue is also decided against the plaintiff.
Issue no. (v):
a) In view of finding recorded on issue no. 3 & 4, I am of considered opinion that plaintiff is not entitled for any mesne profit/damages. Accordingly this issue is also decided against plaintiff.
RELIEF:
18.In view of aforesaid finding recorded, suit is dismissed with cost. Decree sheet be prepared accordingly.
Announced in the open Court on 14.11.14 (Ravinder Singh1) Addl. District Judge08(Central), Tis Hazari Courts/Delhi SUIT NO. 211/14 Dinesh Tyagi v. Brijesh Tyagi 22 / 22