Delhi District Court
Cs No. 13/17/97 (New No.8109/16) Bharat ... vs . Dda & Ors. 1/40 on 1 November, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 13/17/97
New No. Civ. DJ-8109/16
1. Sh. Bharat Bhushan Saraf
S/o Sh. Madan Lal Saraf
2. Ms. Renu Saraf
W/o Sh. Bharat Bhushan Saraf
Both resident of 173-B, JG-III, Vikaspuri,
Budela, New Delhi.
......Plaintif
versus
1. Delhi Development Authority
Vikas Sadan, INA, New Delhi.
2. Sh. Roshan Lal
S/o Sh. Roop Chand
R/o B-23, Double Storey Quarters
Motia Khan, New Delhi-55
3. Sh. Raju Aggarwal
S/o Sh. M.L. Aggarwal
R/o JG-III, 257-A,
Vikaspuri, New Delhi.
4. Mrs. Amarjit Kaur
W/o Sh. Jagjit Singh
R/o WZ-35, Krishna Park Extn.,
New Delhi.
5. Sh. S. Harvinder Singh
S/o S. Didar Singh
R/o GG-1/72-A, Vikaspuri,
New Delhi.
6. Sh. Jaspal Singh Narang
S/o Sh. Jagat Singh Narang
R/o JG-II/358, Vikas Puri,
New Delhi
.........Defendants
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 1/40
Date of institution of the case : 27.10.1997
Date of reserving of judgment : 10.10.2017
Date of pronouncement of judgment : 01.11.2017
JUDGMENT
1. The plaintif has filed a suit for specific performance, declaration, mandatory and perpetual
injunction. The brief facts necessary for the disposal of the suit are as under:
2. The plaintif is an attorney for consideration for defendant no.2 in successive transfers for the last attorney i.e. defendant no.6 and an agreement to sell was executed in favour of plaintif no.2 by defendant no.6. The defendant no.2 was an original allottee of premises bearing No. 173-B, JG-III, Vikaspuri, Budela, New Delhi (hereinafter referred to as 'the suit property') allotted by the defendant no.1/DDA by letter dated 24.08.1994. Lateron defendant no.2 transferred the suit property for consideration to defendant no.3 by execution of irrevocable general power of attorney in his favour. In the same manner, the defendant no.3 transferred the suit property to defendant no.4, the defendant no.4 to defendant no.5 and defendant no.5 to defendant no.6 against consideration on execution of irrevocable general power of attorney.
3. It is stated that the defendant no.2 applied for Janta Flat with the defendant no.1 and his request for obtaining the flat was given a file no. 19(158)84 Janta (G).
The defendant no.2 against his said application was allotted CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 2/40 flat No. 7-C, Pkt. JG-III, Vikaspuri, New Delhi. The defendant no.2 by the allotment letter was required to deposit a sum of Rs.5012.50. However, due to financial constraints, the defendant no.2 was unable to deposit the same. The defendant no.2 requested for restoration of the flat in his favour and to the said request dated 22.04.1985 annexed a receipt of payment of Rs.5012.50 deposited by him on 22.03.1985. The defendant no.2 further deposited a sum of Rs.7213/- in accordance with the allotment on 15.10.1986. On the request of fresh allotment of defendant no.2 dated 04.05.1994 to defendant no.1, the defendant no.2 was allotted flat no. 173-B, JG-III, Vikaspuri against the previous flat No. 7-C, JG-III, Vikaspuri, Budela on 24.08.1994 by a vicegerent of the defendant no.1's letter No. Asstt. Director (H) G/170 dated 24.08.1994. In pursuance to the said letter, the defendant no.1 complete the formalities including issuance of possession letter forwarded to Executive Engineer of the area concerned and also to the defendant no.2. In pursuance thereof, the defendant no.1 also issued the letter to the Jr. Engineer on 24.08.1994 itself for giving electricity and water connection. On 09.09.1994, the defendant no.2 obtained the possession and executed a receipt of taking over the possession which is also duly signed by the Jr. Engineer on the same date. The electricity connection was installed in the suit property on 16.11.1994 in the name of defendant no.2 and later on water connection was also installed.
4. It is stated that the defendant no.2 sold the property to defendant no.3 after entering into an agreement to sell and executing irrevocable general power of attorney CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 3/40 for consideration and in the same manner defendant no.2 sold to defendant no.3, the defendant no.3 to defendant no.4, the defendant no.4 to defendant no.5 and the defendant no. 5 to defendant no.6. The defendant no.6 thereupon made certain improvements in the suit property.
5. It is stated that after seeing the original documents and inquiries from the DDA, the plaintif negotiated with the defendant no.6 for sale of the suit property. The defendant no.6 agreed to sell the suit property to the plaintif for a sum of Rs.2,90,000/-, out of which he executed a receipt of only Rs.55000/- and did not issue any receipt for Rs.2,35,000/-. The plaintifs were put into vacant possession of the suit property by the defendant no.6. The documents of transfer were executed by defendant no.6 in favour of the plaintifs on 29.08.1996.
6. It is stated that plaintif upon having come to know about the scheme declared by defendant no.1 under which the lease hold and hire purchase properties could b converted into free hold having been extended for the successive transferees under modified scheme of 1996 on payment of certain charges, the plaintif approached the defendant no.1 in December, 1996 and enquired about the status as to how the suit property can be made freehold in his favour or in the favour of the original allottee and under what terms and conditions it can be done in his favour. The vicegerents of the defendant no.1 asked the plaintif to come up in the month of January, 1997 as the staf due to the fag end of the year staf was unavailable. The plaintif visited the defendant no.1 many times but no positive reply came CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 4/40 through to the plaintif. During a visit in the second week of June, 1996, the vicegerent of the defendant no.1 without disclosing any reason refused to entertain the request of the plaintif. The plaintif being aggrieved caused a legal notice served upon the duly nominated vicegerent of defendant no.1 on 26.06.1997.
7. It is stated that the plaintif were shocked to receive a notice under Section 160 Cr.P.C. from the Station House Officer of PS K.M. Pur, New Delhi dated 06.07.1997 under an FIR No. 234/97 under Section 420/468/471 IPC registered under the complaint of Sh. S.P. Thukral, Dy. Director, Janta H DDA. After obtaining copy of FIR, it has come to the knowledge of the plaintif that the suit property had also been allotted in favour of one Smt. Mohini Devi on 24.10.1994. From the contents of the FIR , it is evident that the subsequent allotment was not only made after the allotment of the suit property to the defendant no.2 but also the possession having been handed over to the defendant no.2. The plaintif no.1 submitted a detailed statement/reply to the show cause notice on 09.07.1997 to the IO.
8. It is stated that thereafter the plaintif came to know the scheme announced by defendant no.1, whereunder the allottees or their successive attorneys were permitted to deposit the outstanding installments against the properties sold by the defendant no.1 under hire purchase scheme. The plaintif once again started taking rounds of the office of the defendant no.1 but to no avail. The plaintif thereupon caused a legal notice dated 22.09.1997 served upon them by speed post, wherein the copy of the earlier notice was also CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 5/40 enclosed, which had been duly served. Since 24.10.1994, no change had been brought out correcting the record at the local office of the defendant no.1 pertaining to the allotment and possession of defendant no.2 by the defendant no.1. The plaintif upon entering into the agreement to sell after exercising due care and diligence regarding the original allotment and for consideration have protected right, title and interest in the suit property. The defendant no.1 at this stage can under no circumstances legally withdraw or cancel the allotment in favour of the original allottee.
9. It is stated that the plaintifs are ready and willing to deposit all pending installments, if any and conversion charges with the defendant no.1 for regularizing the allotment in his favour and making the property freehold in accordance with the schemes declared by the defendant no.1. The plaintifs are further entitled to get a duly registered conveyance deed in his favour after meeting all the formalities as set out by the defendant no.1 including getting signatures upon the registered sale deed of defendant no.2 or through his successive attorneys and specifically through defendant no.6.
10. It is stated that the vicegerents of the defendant no.1 through their local office called upon the plaintifs in the afternoon of 24.10.1997 while he was away to duty informing his family that they shall seize the suit property on 27.10.1997 and plaintifs may remove their goods whatsoever and also intimated that in case they failed to accede to their intimation, they shall use the necessary force to seal the suit property. The defendant no.1 before allotting CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 6/40 the suit property to subsequent allottee has not cancelled the allotment in favour of the defendant no.2 nor has issued any notice for making the subsequent allotment. The plaintif being aggrieved from the facts and omissions of the defendant no.1 has invoked the jurisdiction of this Court.
11. The plaintifs seek to pass a decree of declaration thereby declaring the plaintif as bonafide purchaser for consideration of the property bearing no. 173-B, JG-III, Vikaspuri, Budela, New Delhi; a decree of mandatory injunction in favour of the plaintif and against the defendant no.1, its servants, employees, agents, assigns, successors, or any other person/body/entity acting on its behalf, directing therein the defendant no.1 to accept the outstanding sum due against any pending installments for the suit property bearing No. 173-B, Jg-III, Vikaspuri, Budela, New Delhi; a decree of mandatory injunction in favour of the plaintif and agianst the defendant no.1, its servants, employees, agents, assigns, successors, or any other person/body/entity acting on its behalf, directing therein the defendant no.1 to admit the plaintif to the conversion scheme from lease hold to free hold with respect to property bearing No. 173-B, JG-III, Vikaspuri, Budela, New Delhi; a decree of mandatory injunction in favour of the plaintif and against the defendant no.1, its servants, employees, agents, assigns, successors, or any other person/body/entity acting on its behalf, directing therein the defendant no.1 to grant necessary permissions fro drawing the sale deed and conveyance deed in favour of the plaintif in respect to property bearing No. 173-B, JG-III, Vikaspuri, Budela, New Delhi; a decree of specific performance in favour of the plaintif no.2 and against the CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 7/40 defendant no.2 to execute sale deed/ conveyance deed either through himself or through his successive attornies 3 to 6 or through plaintif no.1; and a decree of perpetual injunction directing the defendants, their agents, servants, assigns, successors in interest, or any other person acting on their behalf to restrain themselves from interfering with the possession of the applicant in the suit property bearing No. 173-B, JG-III, Vikaspuri, Budela, New Delhi.
12. Defendant no.1, Delhi Development Authority filed written statement and taken the preliminary objections that the suit of the plaintifs is without any cause of action. The plaintifs have not come to the Court with clean hands and as such not entitled to any relief. The plaintifs not given mandatory notice as required under Section 53-B of the DD Act. The plaintifs were fully aware of the facts that the suit property/flat no. 173-B, J.G.-III, Vikas Puri, Bodella, New Delhi was never allotted to the defendant no.2 Sh. Roshan Lal. Sh.Roshan Lal cannot pass better title to what he has, as such the plaintifs have no locus-standi.
13. It is stated that the defendant no.2 Sh. Roshan Lal got himself registered for a Janta flat under General Housing scheme -1976 under reserve category (S.C.) through registration application no. 46278 dated 31.05.1976. The DDA issued registration certificate No. 909 and FDR No.2988 dated 31.05.1976. Thereafter, defendant no.2 was declared successful and allotted flat No. 7-C, JG-III, Block Bodella, Vikas Puri under Housing General Scheme by the defendant/DDA and the demand letter No. F.19 (158)/84/Jata/9.4.84 was issued to defendant no.2. Since the defendant no.2 CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 8/40 Sh.Roshan Lal had not made the payment, the said flat was cancelled due to non-payment. The flat No. 173-B, JG-III, Block Vikas Puri was originally allotted to the registrant Sh.Subhash Chander through a draw of lots held on 27.01.1992 and the allotment-cum-demand letter was issued to the said Sh. Subhash Chander on 25/30 th Nov. 1992. Sh.Subhash Chander on receipt of the demand letter made the payment of initial deposit, meanwhile Sh.Subhash Chander expired on 24.03.1993 and his wife Smt. Mohini Devi @ Moni Devi applied for mutation of flat in her name and also deposited the requisite documents with the DDA as completion of formalities. Based on documents by her flat No. 173-B, JG-III Block, Vikas Puri was mutated by the DDA in the name of said Smt. Mohini Devi and possession letter dated 24.10.1994 was also issued from file No. J-19/(7)92/VP.
14. It is stated that when Smt. Mohini Devi contacted the concerned site officer for taking over possession of the flat, it came to light that Sh. Roshan Lal by presenting some documents on 09.09.1994 had taken the possession of flat No. 173-B, JG-III, Vikas Puri, New Delhi and fraud/mischief of false, forged and fabricated possession letter was detected. The matter came up before the competent authority of the DDA for investigation at Vigilance angle and after investigation it was considered prima-facie to lodge an FIR on the basis of forged documents submitted by Sh.Roshan Lal. FIR No. 234/1997 was lodged on 16.01.1997 at Police Station Kotla Mubarakpur, New Delhi was lodged and said Sh. Roshan Lal was booked under Section 420/468/471 IPC. Since the Police has taken sometime as such a reminder in this regard was also sent to Dy. Commissioner of Police (Crime and CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 9/40 Railways) behind Qutab Hotel, New Delhi on 15.10.1997 with a copy to SHO Kotla Mubarakpur, New Delhi. The matter is now pending under the jurisdiction of police as State case.
15. On reply on merits, the averments made in the plaint are denied as wrong and incorrect.
16. The plaintifs filed rejoinder to the written statement of the defendant no.1. In which they denied the the averments made in the written statement and reiterated the averments made in the plaint. It is stated that mandatory notice under Section 53-B of the DDA Act was duly served upon the Answering Defendant on 25.06.1997. As per the records inspected by the plaintifs and the original letters handed over to the plaintifs by the defendant no.6, the defendant no.2 was a bonafide owner. It is stated that upon the representation made by the defendant no.2 to the Answering defendant, the said flat was restored by the Asstt. Director (g) (H) on 24.08.1994 but instead of the original flat allotted in favour of the defendant no.2 another flat was allotted in his favour. The answering defendant has intentionally concealed the said fact from this Court.
17. Defendant no.2 Sh. Roshan Lal also filed written statement. In which he has taken the preliminary objections that the suit of the plaintif is not maintainable against the replying defendant and is liable to be rejected under Order VII Rule 11 CPC. It is stated that the plaintifs are not the lawful onwers of the suit property as the suit property was never allotted by the defendant no.1 in favour of the replying defendant no.2 against his registration No. 909 dated CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 10/40 04.06.1986 despite repeated requests and representations nor the possession of the suit property was ever delivered by the defendant no.1 to the replying defendant. The alleged transaction as alleged by the plaintifs are fabricated, forged and malicious. Even the signatures of the replying defendant no.2 have been forged by some person in collusion with each other by the other defendants.
18. It is stated that the replying defendant never sold the suit property since he was not allotted the same by the DDA, which is evident from the correspondence and representations of the replying defendant. The original registration certificate and payment receipt are still with the replying defendant. The forgery is evident from the fact that the replying defendant never resided at the address as given in the transfer documents manufactured and forged by the other defendants in collusion with each other. The suit is bad for misjoinder of necessary party. The replying defendant was never the owner of the suit property nor he ever sold the same to the defendant no.2 as alleged falsely in the plaint.
19. It is stated that it is a case of forgery and foul play of the defendant nos. 1, 3 to 6 and the suit property which allegedly was allotted in favour of the replying defendant no.2 by the DDA against his registration never came in the hands of the replying defendant at any point of time. Hence, there was no question of selling the suit property by the replying defendant in favour of the defendant no.3 or any other person. All the subsequent transactions are also unlwful and without any legal authority.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 11/40
20. On reply on merits, all the averments made in the plaint are denied as wrong and incorrect.
21. The plaintifs filed rejoinder to the written statement of the defendant no.2. In which they denied the the averments made in the written statement and reiterated the averments made in the plaint. It is stated that the answering defendant has duly taken the possession of the property as is evident from the photographs of the answering defendant upon the possession letter as well as his signatures on the same. It is stated that if the answering defendant has been able to keep the original registration certificate or the receipt then it does not go on to show that there has been forgery in obtaining the possession of the suit property by any person. The possession of the said document goes on to show the malafide intent of the answering defendant.
22. Defendant no.5 filed written statement and taken the preliminary objections that the suit as framed and filed is not maintainable. The plaintifs have no cause of action to file the present suit specially against the defendant no.5. Neither the plaintifs purchased the property in question from the defendant no.5 nor they have any grievance against the defendant no.5. After selling the property to defendant no.6, the defendant no.5 has no role in the present case. The plaintifs have not come with clean hands before this Court and have suppressed the material facts.
23. On merits, the averments made in the plaint are denied by the defendant no.5. It is stated that plaintifs are not entitled to any relief against the answering defendant.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 12/40
24. The plaintifs filed rejoinder to the written statement of the defendant no.5. In which they denied the the averments made in the written statement and reiterated the averments made in the plaint. It is stated that the plaintifs have purchased the suit property from the attorney of the answering defendant, therefore, the plaintifs have a grievance against the answering defendant.
25. Defendant no.6 filed written statement and taken the preliminary objections that the present suit is not maintainable. The plaintifs have no cause of action to file the present suit specially against the defendant no.6 because the defendant no.6 purchased the suit property from the defendant no.5 in routine and documents were executed before the Sub Registrar and also after seeing all the documents relating to the suit property. Moreover, the replying defendant was not aware whether any fraud has been committed by the other defendant nos. 2 to 5. The plaintifs have not come with clean hands before this Court and suppressed the material facts.
26. On merits, the averments made in the plaint are denied by the defendant no.6. It is stated that plaintifs are not entitled to any relief against the answering defendant.
27. The plaintifs filed rejoinder to the written statement of the defendant no.6. In which they denied the the averments made in the written statement and reiterated the averments made in the plaint. It is stated that the answering defendant has sold the suit property to the plaintifs, therefore, he remains liable for the representation CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 13/40 having been made by him to the plaintifs including one his concealment of fraud, having been committed by the defendant nos. 2 to 5. The answering defendant is liable to get the sale completed in favour of the plaintifs as undertaken by him in Agreement to sell and other allied documents.
28. On the pleadings of the parties, the following issues were framed on 21.03.2005 by my Ld. Predecessor:
(1). Whether notice under Section 53B of the D.D. Act has not been served upon defendant no.1?
(2). Whether defendant no.2 was allotted flat no. 173-B, JG-III, Vikas Puri, New Delhi by defendant no.1 (DDA) vide letter dated 24.08.1994?
(3). Whether defendant no.2 was handed over possession of flat no. 173-B, JG-III, Vikas Puri, New Delhi by the Junior Engineer of D.D.A. on 09.09.1994?
(4). Whether defendant n.2 had sold the said flat to defendant no.3, defendant no.3 to defendant no.4, defendant no.4 to defendant no.5 and defendant no.5 to defendant no.6, for consideration as claimed by the plaintiff?
(5). Whether the plaintiff is a bonafide purchaser of flat no. 173-B, JG-III, Vikas Puri, New Delhi from defendant no.6 for consideration?
(6). Whether flat no. 173-B, JG-III, Vikas Puri, New Delhi was never allotted to defendant no.2 and on the other hand was allotted to late Shri Subhash Chander through draw of flats held on 27.01.1992 CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 14/40 and on death of Shri Subhash Chander was mutated in the name of Smt. Mohini Devi, if so, its effect?
(7). Whether the plaintiff is entitled to the decree of specific performance of the contract against defendant no.2 through his attornies defendants no. 3 to 6?
(8). Whether the plaintiff is entitled to the decree of declaration, mandatory and perpetual injunctions as claimed in the suit?
(9). Relief.
29. In support of their case, plaintifs got examined PW1 Mr. Bharat Bhushan Saraf, plaintif no.1 and as per statement of plaintif no.1, evidence of plaintifs was closed on 01.08.2007.
30. The defendant no.1/ DDA got examined DW1 Sh.Kali Ram Sharma, Assistant Director (Housing); DW2 Sh. Pramod Dayal, Assistant Director MIG (Housing) and thereafter, as per statement of Ld. Counsel for the defendant no.1, evidence of defendant no.1/DDA was closed on 21.02.2017. It is pertinent to mention that earlier affidavit of Sh. Prem Singh, Assistant Director (Housing), DDA was filed and he tendered his affidavit on 04.09.2015 and his cross- examination was deferred but in between he had been retired from services and Ld. Counsel for the DDA moved an application under Section 151 CPC for replacement of DW1 Sh.PremSingh with Sh. Kali Ram Sharma, Assistant Director (Housing), which was allowed on 09.07.2016.
31. The defendant nos. 2 to 6 have not led any evidence. Defendant nos. 3 to 6 were proceeded ex-parte during the trial of the case.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 15/40
32. PW1 Sh. Bharat Bhushan Saraf, plaintif no.1 tendered his affidavit in evidence as Ex. PX, in which he has reiterated the averments made in the plaint. He deposed that a notice under Order 12 Rule 8 CPC has been served upon the Counsel for defendant no.1/DDA asking it to produce the documents as mentioned in the notice. Defendant no.1 has failed to produce the documents. The documents are Ex. PW1/1 to Ex. PW1/44. It is pointed out that there is no document Ex. PW1/43 in affidavit or on the record.
33. In the cross-examination on behalf of defendant no.1, PW1 Sh. Bharat Bhushan Saraf deposed that he had not met defendant no.2 personally before entering into the transaction for purchase of the suit flat. He had purchased the suit property from Sh. Jaspal Singh Narang, defendant no.6 and he had handed over him registration certificate in favour of defendant no.2, allotment letter issued to defendant no.2 in the year 1984 and all other documents i.e. General Power of Attorney, agreement to sell in respect of suit property in favour of defendant nos. 3 to 6. He denied the suggestion that allotment in favour of defendant no.2 was subsequently concealed on account of non payment of the demanded amount by the DDA. He did not know whether defendant nos. 2, 3, 4, 5 and 6 had sought the permission from DDA to sell the suit property. He was aware that it was a lease hold property. Letter dated 04.05.1994 has mentioned in his affidavit para 8C has been filed filed by him on record although he had seen the said letter. He has denied the suggestion that no such letter was seen by him and he has wrongly stated this fact in his affidavit. He admitted that Ex. PW1/5 to Ex. PW1/7 are of the same date i.e. 24.08.1994.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 16/40 These documents were handed over to him by the defendant no.6. He had verified the issuance of documents Ex. PW1/5 to Ex. PW1/7 in the records of DDA before purchasing the suit flat which were available in the file. He denied the suggestion that documents Ex. PW1/5 to Ex. PW1/7 were not in the file of DDA.
34. PW1 Sh. Bharat Bhushan Saraf in his cross- examination further deposed that he is not aware of the fact that the suit flat was allotted in favour of Sh. Subhash Chander by the DDA on 27.01.1992 through the draw of lots on the said date. He denied the suggestion that he was informed by the DDA that said flat stands mutated in the name of Smt. Mohini Devi W/o Sh. Subhash Chander the allottee of the flat who was subsequently expired. He denied the suggestion that he was duly informed by the DDA that allotment in respect of the said flat stood in the name of Sh.Subhash Chander and subsequently mutated in favour of his wife Smt. Mohini Devi. He denied that the allotment file pertaining to defendant no.2 had been closed by the DDA after the cancellation of allotment in his favour in the year 1984. He denied that no changes have been made in the record of DDA since 24.10.1994 as that flat in dispute was never alloted to defendant no.2. He denied that defendant no. 3 to 6 and he himself are not the bonafide purchaser of the suit property. He denied that no threat was extended by the official of defendant no. 1 on 24.10.1997 for taking the forcible possession of the suit property. He further denied the suggestion that no notice was required to be sent to the plaintif before cancellation of allotment in favour of defendant no.2 in respect of the suit flat. He denied that DDA CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 17/40 was not required to follow any procedure before cancellation of the suit flat. He denied that since no allotment was made in favour of defendant no.2 hence there was no requirement of cancellation of the suit flat. He denied that he is not the bonafide purchaser of the suit property. He denied that there was any requirement by the DDA to sent him any notice before taking any action in respect of the cancellation of the suit property. He admitted that the documents Ex. PW1/5 to Ex. PW1/7 were not executed in his presence by the DDA. He further admitted that letter Ex. PW1/8 signed by defendant no.2 has also not been executed in his presence. He admitted that documents Ex. PW1/12 to PW1/35 were not executed or signed in his presence but he received the same from defendant no.6. He cannot identify signature of the executant of documents Ex. PW1/9 to Ex. PW1/35. He did not know how documents Ex. PW1/5 to Ex. PW1/8 were delivered to defendant no.2. He denied the suggestion that these letters are manufactured and forged by defendant no.2 in connivance with some other people. He denied that allotment and subsequent possession for the suit flat has been fraudulently obtained by defendant no.2. He had appeared before Investigating Officer on receiving the notice under Section 160 Cr.P.C. from PS Kotla Mubarak Pur, New Delhi and he filed the reply to the same. He admitted that the suit flat was allotted on hire purchase basis. He denied the suggestion that the sale in respect of the suit flat by defendant nos. 2 to 6 were illegal as none of the defendants had no title to the suit flat.
35. In the cross-examination on behalf of defendant no.5, PW1 Sh. Bharat Bhushan Saraf deposed that he did not CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 18/40 know Sh.Roshan Lal defendant no.2. Document Ex. PW1/6 was not prepared in his presence. Similar is his reply with regard to document Ex. Pw1/1 to Ex. PW1/5 and Ex. PW1/7. Ex. PW1/6 pertains to the year 1994 and Power of Attorney pertains to the year 1994, however, he has no explanation that there appears to be photographs of diferent ages. He volunteered that he is the 7 th purchaser. He was not present when the transaction took place in the purchaser from purchaser no.2 to purchaser no.6 since he is the 7th purchaser. He had not filed any application in writing in respect of verification of document or inspection of document/ file.
36. DW1 Sh. Kali Ram Sharma tendered his affidavit in evidence as Ex. DW-1/A, in which he deposed about the case of the defendant/DDA and proved on record possession letter dated 24.10.1994 as Ex. DW-1/1, allotment letter dated 25.11.1992/30.12.1992 as Ex. DW1/3 and NOC dated 24.10.1994 as Ex. DW-1/5.
36. DW1 in his cross-examination deposed that he has seen the court record and replied that there is no document of deposit of amount by Sh.Roshan Lal of the said flat no. 173B, Block JG III, Bodela, Vikas Puri, Delhi. He admitted that there is no document which shows that Sh.Roshan Lal had not deposited the amount or on account of the same allotment was cancelled due to non payment. He denied the suggestion that allotment of Roshan Lal was not cancelled due to non deposit of amount by Roshan Lal. He admitted that vide Ex. PW1/5 Sh.Roshan Lal was directed that he has been alloted flat no. 173B, Block JG III, Bodela, Vikas CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 19/40 Puri, Delhi against flat no. 7C, Block JG III, Bodela, Vikas Puri, Delhi. He cannot say whether Roshan Lal has deposited all the demand money for allotment of flat no. 173B, Block JG III, Bodela, Vikas Puri, Delhi. He denied the suggestion that the possession of flat no. 173B, Block JG III, Bodela, Vikas Puri, Delhi was given to Sh. Roshan Lal and not to Smt. Mohini Devi. He does not know whether at the site of handing over the possession of the flat a register has been maintained which shows handing over of possession including electricity and water connection. He has no knowledge that electricity and water connection is installed in the premises only in the name of the person to whom possession letter is issued by the DDA for any particular flat. He has no knowledge that only after the possession letter issued in favour of Roshan Lal, the electricity and water connection was installed in the suit property in the name of Roshan Lal. He has not dealt with the file, therefore, cannot tell whether Roshan Lal filed any forged or fabricated documents to get the allotment or the possession of the flat no. 173B, Block JG III, Bodela, Vikas Puri, Delhi. He denied the suggestion that he has deposed falsely that Roshan Lal had taken the possession of the suit property by presenting forged and fabricated documents including possession letter to concerned Site Officer. He admitted that no record pertaining to site officer has been filed on record.
37. DW1 in his cross-examination he admitted that no record has been placed on record to show wherein DDA had referred the matter to competent authority for investigation. He does not have any knowledge that upon the fact that the Roshan Lal has obtained the possession on forged and CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 20/40 fabricated documents, the record of the Site office was corrected to the efect to show a wrongful possession having been delivered to Roshan Lal. He has not seen the site office record. He can bring the site office record. He does not know as to what happened to the FIR lodged at the instance of DDA against Roshan Lal. He has no knowledge whether along with record which was sent to the police, any document which DDA alleged to have been forged and fabricated by Roshan Lal upon which the suit property was allotted to Roshan lal or upon the basis of which possession of suit property was given to Roshan Lal was handed over to police or not. He denied the suggestion that there is no document which shows that Roshan Lal had obtained the allotment and possession of the suit property on the basis of forged or fabricated documents. He denied the suggestion that Roshan Lal had not forged or fabricated the documents of possession. He denied that the signatures of Assistant Director (H) General on the document of allotment of flat or possession has not been appearing on the said documents. He denied the suggestion that such documents have not been forged, fabricated or manufactured by Roshan Lal. He denied that Roshan Lal had no right, title or interest in the suit property or he had no right to sell/transfer the same to any other person. He denied that the sale made by Roshan Lal to defendant no.3 is not illegal or without any basis or without any title or ownership of the suit property. He further denied the suggestion that the subsequent transfer by defendant no.3 to defendant no.4 and by defendant no.4 to defendant no.5 and defendant no.5 to defendant no. 6 and by defendant no.6 to the plaintif is not illegal. He denied that the possession of the plaintif in the suit property is not illegal.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 21/40
38. DW1 further in his cross-examination denied the suggestion that plaintif is not the tress passer in the suit property. He denied that suit property was allotted by DDA to Roshan Lal on 24.08.1994 and was realloted to Smt. Mohini Devi on 24.10.1994 and is a case of double allotment due to mistake of DDA. He admitted that the documents vide which allotment of the suit property was made in favour of Roshan Lal and the documents by which possession was given to Roshan Lal bear the original seal and signatures of competent officers of the DDA except the forged documents. The affidavit Ex. DW1/A was prepared by the Counsel for the DDA and he was present. At the time of preparation of Ex. DW1/A, he had signed only on the point A and B of the affidavit and he did not sign anywhere else including any register. He denied that he is not aware about the contents of Ex. DW1/A.
39. DW2 Sh. Pramod Dayal tendered his affidavit in evidence as Ex. DW-1/A, in which he deposed about the case of the defendant/DDA and proved on record copy of possession letter dated 24.10.1994 as Ex. DW-2/1 (already exhibited as Ex. DW-1/1), the copy of FIR bearing No. 234/97 dated 16.01.1997 at P.S. Kotla Mubarakhpur as Ex. DW-2/2; copy of allotment cum demand letter dated 25/30.11.1992 as Ex. DW-2/3 (Already exhibited as Ex. DW-1/3); the copy of NOC dated 24.10.1994 as Ex. DW-2/5 (already exhibited as Ex. DW-1/5) and copy of complaint dated 4.5.1997 as Ex. DW- 2/6.
40. DW2 in his cross-examination deposed that Janta flats as of today not fall within the department of MIG CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 22/40 Housing of DDA. He does not know as in 1976 it did fell into the said Section or not or whether there was a separate section or not. Since the main allotment file pertaining to defendant no. 2 I.e Roshan Lal is not available therefore he cannot say that the amount deposited by Roshan Lal vide Ex. PW-1/3 and vide Ex. PW-1/4 stands deposited with DDA or not. He cannot say whether the letter Ex. PW-1/2 had been duly received by DDA or not since the said file is not available in the record of the DDA. He admitted that since the relevant file relating to the allotment to Roshan Lal is not available in the records of DDA he cannot say that whether the suit property was allotted to Roshan Lal or not. The physical possession of any Janta flat allotted to any person is handed over to the said person by the concerned Division. When the entire payment is made by the allottee of the Janta flat to DDA they issue possession letter as well as NOC for water connection and electricity connection in the favour of the allottee and the copy of the same is also sent to the site office which deals with actual handing over of the physical possession at the site including installation of electricity and water connection. He has not seen the site office record as to whom the actual physical and vacant possession of the flat no. JG-3/173B, Vikas Puri, New Delhi was handed over by the DDA.
41. DW2 in his cross-examination denied the suggestion that the actual physical possession of the suit property was handed over to Roshan Lal as per the records of DDA site office which had handed over the actual physical possession on 24.08.1994. He cannot say the same was handed over by DDA to Roshan Lal vide Ex. PW-1/7. He CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 23/40 further cannot say that it was certified to Roshan Lal that necessary electric fittings and fixtures had been installed in the suit property vide Ex. PW-1/8. He cannot say about the Ex. PW-1/7 & 8 since the relevant file is not available. He cannot say upon DDA given NOC regarding installation of electricity and water connection in favour of Roshan Lal, the water and electricity connection in suit property was installed in the name of Roshan Lal in the year 1994. He does not know if the electricity and water connection in the suit property is installed in the name of Roshan Lal. He cannot say whether bills Ex. PW-1/9 to Ex. PW-1/11 pertain to the suit property or not.
42. DW2 in his cross-examination deposed that he cannot say whether any document has been placed on record to show that actual vacant physical possession of the suit property was not handed over by DDA to Roshan Lal since the relevant file pertaining to the allotment of Roshan Lal is unavailable of DDA. He cannot say whether Ex. PW-1/44 (Colly) was received by DDA or not. He again said as per record brought by him a copy of above said notice is available. As per record brought by him no reply was sent to the above legal notice. They had issued letter of possession to Mohini Devi W/o late Sh. Subhash Chander on 24.10.1994 and when she went to take the physical possession pursuant to the same it was found that flat was in possession of Roshan Lal and thus in 1994 it came to our knowledge that the fraud has been committed by Roshan Lal. He admitted that the complaint for registering an FIR was made on 06.01.1997. Between October, 1994 and January 1997 they had written letters to Roshan lal to hand back the possession.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 24/40
43. DW2 in his cross-examination deposed that there is a copy of letter dated 3.09.1996 in his record which had been written by the department to Roshan Lal. Since Roshan Lal was not found to be staying at the premises the letter was pasted. He has no document to show that anything was recorded in the site office whereby intimating at large that the possession handed over to the Roshan Lal had been cancelled or withdrawn since file is not available. He cannot say whether the site office record is available or not since He has made no such inquiry. No proceeding was initiated before any court to recover the possession from Roshan Lal nor any seal was directed to be put on the suit property except lodging of the FIR. Day before yesterday he contacted the concerned SHO about the fate of the said FIR. As per letter of SHO, it is untraced. No proceedings had been initiated against Roshan Lal including by way of counter claim in the present suit to seek back the possession of the suit property from Roshan Lal. He denied the suggestion that there is no document which shows that Roshan Lal had obtained the allotment and possession of the suit property on the basis of forged or fabricated documents. He denied that Roshan Lal had not forged or fabricated the documents of possession. He further denied that the signatures of Assistant Director (H) General on the document of allotment of flat or possession has not been appearing on the said documents. He denied that such documents have not been forged, fabricated or manufactured by Roshan Lal. He denied the suggestion that Roshan Lal had no right, title or interest in the suit property or he had no right to sell/transfer the same to any other person.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 25/40
44. DW2 in his cross-examination denied the suggestion that the sale made by Roshan Lal to defendant no.3 is not illegal or without any basis or without any title or ownership of the suit property. He denied that the subsequent transfer by defendant no.3 to defendant no.4 and by defendant no.4 to defendant no.5 and defendant no.5 to defendant no. 6 and by defendant no.6 to the plaintif is not illegal. He denied that the possession of the plaintif in the suit property is not illegal. He denied that plaintif is not the tress passer in the suit property. He denied that suit property was allotted by DDA to Roshan Lal on 24.08.1994 and was realloted to Smt. Mohini Devi on 24.10.1994 and is a case of double allotment due to mistake of DDA. He admitted that the documents vide which allotment of the suit property was made in favour of Roshan Lal and the documents by which possession was given to Roshan Lal bear the original seal and signatures of competent officers of the DDA except the forged documents. The affidavit Ex. DW2/A was prepared by the Counsel for the DDA and he was present and the same had been prepared on his instructions.
45. I have heard Ms. Savita Malhotra, Counsel for the plaintifs and Sh. G.P. Sharma, Counsel for the defendant no.1/ DDA and also gone through the written arguments filed by plaintif's Counsel as well as defendant's Counsel and perused the record. My findings on issues are as under:
ISSUE NO. 146. The issue no.1 framed on the basis of preliminary objection taken by defendant/DDA that plaintif have not CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 26/40 given mandatory notice as per Section 53B of DDA Act and therefore, suit is not maintainable. The plaintif rebutted the plea and stated that the mandatory notice under Section 53 B of DDA Act was served upon defendant DDA on 25.06.1997. The plaintif appeared in the witness box and proved the notice dated 25.06.1997 Ex. PW1/42 and the receipt of delivering to Deputy Director Janta (G) DDA Ex. PW1/44. Further, plaintif proved another notice dated 22.09.1997 Ex. PW1/44 (colly) and postal receipt. In my considered opinion, the plaintif has served mandatory notice to the defendant prior to the filing of the suit. On the basis of above observations and discussion, issue no.1 is decided in favour of plaintif and against the defendant.
ISSUE NO. 2 & 647. Issue nos. 2 and 6 are interconnected, therefore, taken up simultaneously. It is pertinent to mention here that the defendant no.2 Sh.Roshan Lal filed detailed written statement and taken the plea that the plaintifs are not the lawful owners of the suit property. The plaintifs have fabricated, forged and maliciously in collusion with other persons prepared the alleged transaction documents. The defendant no.2 has taken further plea that he never sell the suit property to the plaintifs. The specific plea taken by defendant no.2 is that he was never the owner of the suit property nor sold the same and the original document of registration certificate and payment of receipt still lying with the defendants. It is further pertinent to mention that the defendant did not appear in the witness box.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 27/40
48. The plaintif appeared in the witness box and placed on record original documents bearing photograph of defendant no.2, original allotment letter Ex. PW1/6 dated 24.08.1994 and another letter of intimation regarding allotment of flat no. 173B, JG-III, Vikas Puri, Budela Ex. PW1/5 and two payment receipts to DDA Ex. PW1/3 dated 22.03.1985 and Ex. PW1/4 dated 15.11.1986. It is pertinent to mention here that as per plaintif's own documents, the flat no. 7-C, Pocket JG-III, Vikas Puri, Delhi was initially allotted to defendant no.2 Sh. Roshan Lal as per Ex. PW1/2 but he could not deposited required amount during the specified period and he deposited on 22.03.1985 and request was made to restore the allotment. It established on record that initially Sh. Roshan Lal - defendant no.2 was alloted flat No. 7-C, Pocket JG-III, Vikas Puri, Delhi and not of suit property i.e. flat no. 173 B, JG-III, Vikas Puri, Delhi. Ex. PW1/2 itself establish that the allotment was cancelled due to non payment of charges/demand by the defendant no.2. Ex. PW1/5 establish that the alternative allotment was made of flat no. 173 B, JG- III, Vikas Puri, Delhi on 24.08.1994 by the defendant no.1/ DDA.
49. It is pertinent to mention here that the stand of the DDA is that the documents Ex. PW1/1 to PW1/8 pertaining to defendant no.2 Sh.Roshan Lal are forged and fabricated. Sh. Roshan Lal chosen not to appear in witness box because he is best witness to identify his signatures and alleged documents if issued by the DDA in his favour. He is the best witness to establish that Ex. PW1/5, letter dated 24.08.1994 whereby alternative allotment was made of suit property to him. He is the only witness to explain how and why the earlier CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 28/40 allotment of plot no. 7-C, Pocket JG-III, Vikas Puri, Delhi was cancelled and in what circumstances it was not restored and alternative plot was alloted i.e. the suit property.
50. In order to establish the truth in the present suit and for adjudication of the rights of the parties, court exercised the powers under Section 165 of Indian Evidence Act and called all the record from the DDA office. The original record shown by DDA officials during the course of final arguments and attested copies kept on record. DDA officials produced only the two documents pertaining to flat no. 7-C, Pocket JG-III, Vikas Puri, Delhi. Extract of one Register of allotment showing at Serial No. 1818, the allotment of respondent no.2 Sh.Roshan Lal having registration no. 909 under the Scheme of allotment. The other documents pertaining to account section containing the remarks that flat was cancelled on 20.12.1984 allotted in the name of Sh. Roshan Lal, 7-C, Pocket JG-III, Vikas Puri, Delhi.
51. There are other four files produced by the DDA officials pertaining to flat no. 173B, JG-III, Vikas Puri, Delhi. As per original record, the suit property flat no. 173B, First floor, Vikas Puri, Delhi allotted to Sh. Subhash Chander vide letter dated 30.11.1992. Secondly, Sh. Subhash Chander submitted his affidavit, photocopy of ration card and other documents as required by DDA on 08.02.1993. However, there was no further process shown in the file. There is a noting dated 15.12.1995 of Sh. Arvind Kumar Verma, Deputy Director MIG (NP), which reflects that the original file was dumped in the side rack and found few days ago. This file further contains the original letter in the name of Smt.Mohini Devi wife of Sh.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 29/40 Subhash Chander dated 23.08.1994. The documents available in the file shows that Smt. Mohini Devi have applied to DDA vide application dated 02.06.1994 disclosing that Sh. Subhash Chander, her husband died on 08.10.1992. It establish that due to death of Sh.Subhash Chander, no process taken place after submission of requisite documents and filed was dumped by officials of DDA and it was revived by Smt. Mohini @ Moni Devi wife of original allottee deceased Sh. Subhash Chander. The original record further contain letter of Smt. Mohini Devi dated 24.11.1994, wherein she state that when she went to take possession of allotted flat, she found somebody else in the possession and flat was occupied. Letter of Executive Engineer Sh. S.C. Chandana dated 06.12.1994 establish that the suit flat has already been allotted to Sh.Roshan Lal on 24.08.1994 and possession was handed over on 09.09.1994. Therefore, the allotment to Smt. Mohini Devi along with paper was returned by the site engineer.
52. I have carefully gone through the documents in the name of Sh. Roshan Lal with regard to the suit flat No. 173-B, JG-III, Vikas Puri, Delhi. It is pertinent to mention here that in the DDA there is no file made or traceable as per Ex. PW1/5 dated 24.08.1994 where the suit flat was alloted to Sh.Roshan Lal/ defendant no.2 and Ex. PW1/6 allotment letter. It is pertinent to mention here that when original application Ex. PW1/2 submitted by Sh.Roshan Lal to Deputy Director for restoration of his flat earlier alloted having no. 7-C, Pocket JG- III, Vikas Puri, Delhi, then how it has come into the power and possession of the plaintif. It must be with the DDA officials.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 30/40
53. Similarly, when defendant no.2 taken a specific stand in the written statement that all the original papers with regard to suit flat are with Sh. Roshan Lal, then how the plaintif came into the possession. It is further pertinent to mention here that I myself carefully gone through the allotment letter in the name of Sh. Subhash Chander and other notings in the original file during the relevant period. The signatures of Assistant Director, who issued letters to Sh.Subhash Chander and Smt. Mohini Devi establish to be not of the same person who signed Ex. PW1/5 and Ex. PW1/6 in favour of defendant no.2. The signatures are entirely diferent. The most vital fact is that there is no file made by DDA on the basis of original letter Ex. PW1/2 and there is no letter produced by plaintif or defendant no.2 whereby Sh.Roshan Lal made the request for allotment of flat which culminated into Ex. PW1/5, a letter of allotment dated 24.08.1994. It is pertinent to mention here that even stamps affixed on Ex. PW1/5 and Ex. PW1/6 are not matching with the stamps in the original record of DDA.
54. In my considered opinion documents Ex. PW1/1, Ex. PW1/2, Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 are raised very dark suspicious circumstances and prima-facie not genuine documents. It requires deep and detailed investigation to find out whether these are forged documents or not.
55. On the basis of above observation and discussion, it is established and proved on record that suit flat no. 173 B, JG-III, Vikas Puri, Delhi was originally allotted to Sh. Subhash Chander and not to defendant no.2 Sh. Roshan Lal. The CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 31/40 documents produced by plaintif reflects that suit flat was allotted to defendant no.2 as alternative flat after cancellation of initial allotted flat No. 7-C, Pocket JG-III, Vikas Puri, Delhi shrouded by suspicious circumstances and Ex. PW1/1, Ex. PW1/2, Ex. PW1/5, Ex. PW1/6 and Ex. PW1/7 are not genuine documents issued by DDA officials. Therefore, the issues no. 2 and 6 are decided against the plaintif and in favour of defendant/DDA.
ISSUE NO.3
56. In order to prove the issue no.3, the plaintif filed Ex. PW1/7, a letter issued by Assistant Director, DDA, whereby NOC granted for issuance of water and electricity connection. The Ex. PW1/8, a certificate issued by J/E dated 09.09.1994 in favour of Sh. Roshan Lal for handing over the possession. Further, the letter of Sh. S.C. Chandana, Executive Engineer at 6.12.1994 in the original record produced by DDA further establish the fact that possession was handed over to Sh. Roshan Lal - defendant no.2 at the site by the DDA. Further, the letter of Smt. Mohini Devi dated 24.10.1994 Ex. DW1/2 further proved the fact. Further it is pertinent to mention here that the engineering department did not verify properly and take proper precaution before handing over the possession of the flat. However, there is a strong suspicion and doubt when defendant no.2 in the written statement taken the stand that all the original documents are in his possession, then how it transferred and came into the possession of plaintif. The plaintif failed to explain and prove these vital facts. It is pertinent to mention here that the plaintif has not examined the concerned Executive Engineer and J/E to further corroborate the fact that CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 32/40 the possession was handed over to defendant no.2 because there is a strong challenge to the genuineness and veracity of allotment letter Ex. PW1/5 and Ex. PW1/6 in favour of defendant no.2/ Sh.Roshan Lal. It is proved on record that site engineer handed over possession to defendant no.2 without proper verification and on the basis of of alleged prima-facie forged documents. The issue is decided accordingly.
ISSUES NO. 4 & 557. Issues no. 4 and 5 taken up together being inter connected. The defendant no.2 in the detailed written statement denied that he has sold the suit flat bearing no. 173B, JG-III, Vikas Puri, Delhi to the plaintif. The defendant no.2/ Sh. Roshan Lal specifically averred that the alleged transaction is forged and fabricated. The plaintif appeared in the witness box and exhibited the chain of documents as per averment in the plaint. Ex. PW1/12 is the GPA executed by Sh. Roshan Lal in favour of Sh. Raju Aggarwal S/o Sh. M.L. Aggarwal along with deed of Will Ex. PW1/13, indemnity bond Ex. PW1/14, Special Power of Attorney Ex. PW1/15, agreement to sell Ex. PW1/16, affidavit Ex. PW1/17 and Receipt of Rs.30,000/- Ex. PW1/18. All documents are dated 23.09.1994 except deed of Will Ex. PW1/13 which is dated 21.11.1994. all the documents are not witnesses by any witness except registered will by one Sh. Ranjit Singh and Sh.R.R. Dogra, Advocate. Some documents are having the stamp of Notary. The consideration receipt Ex. PW1/18 is also not witnesses by any witness and also does not bear signature of Sh. Raju Aggarwal - purchaser. In my considered opinion, the documents are having legal lacuna and mere CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 33/40 exhibition does not prove as per law. The deed of Will Ex. PW1/13 has no legal efect because Sh. Roshan Lal remained alive. All the documents sufers from legal infirmities and not capable of transfer of any legal right.
58. It is pertinent to mention here that the alleged allotment is dated 24.08.1994 and possession was alleged to be taken on 09.09.1994 and above alleged sale transaction took place within 15 days. It is quite unnatural conduct that when a person get the allotment and possession of a DDA flat within 15 days. Same has been transferred to Sh. Raju Aggarwal. As per Ex. PW1/19, GPA of Sh. Raju Aggarwal in favour of Smt. Amarjeet Kaur, Deed of Will Ex. PW1/20, SPA Ex. PW1/21, Agreement to Sell Ex. PW1/22 and receipt of Rs.35,000/- Ex. PW1/23. All documents are dated 01.03.1995 except deed of Will which is dated 02.03.1995. All the documents are of similar nature as of Sh. Roshan Lal. All the documents are not witnesses by any witness. The receipt Ex. PW1/23 is not signed by the purchaser as acceptance. All are notarized except deed of Will Ex. PW1/20 which is registered having two witnesses, one Sh. Raj Kumar and other Sh.R.R. Dogra, Advocate. It establish that the documents of Sh.Roshan Lal and now the documents of Sh. Raju Aggarwal also prepared by Advocate Sh. R.R. Dogra. All documents not proved legally and no author of documents appeared in the witness box.
59. Further, Ex. PW1/24, GPA by Smt. Amarjeet Kaur in favour of S. Harvinder Singh dated 05.09.1995 Ex. PW1/24 establish that Smt. Amarjeet Kaur entered into alleged sale transaction of 05.09.1995 and within six months again CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 34/40 entered into alleged transaction of S. Harvinder Singh. It is also unnatural conduct of a person who is purchasing a property and there is only consideration price of Rs.5,000/- increased from Rs.30,000/- to Rs.35,000/-. The deed of Will Ex. PW1/25 is registered and signed by two witnesses namely, Sh. Jagjit Singh and Sh. V.K. Sharma, Advocate. The SPA Ex. PW1/26 dated 05.09.1995, agreement to sell Ex. PW1/27, affidavit Ex. PW1/28 and Receipt Ex. PW1/29 for Rs.40,000/-. All the documents are not witnessed by any witness except the Will. All these documents have the same legal efect as of Sh. Roshan Lal's documents as all these documents herein above sufer from legal lacuna and infirmities. All documents not proved legally and no author of documents appeared in the witness box.
60. Ex. PW1/30, GPA of S. Harvinder singh in favour of Sh. Jaspal Singh Narang is dated 11.03.1996. S.Harvinder Singh also entered into transaction within six months. The deed of Will is Ex. PW1/31, witnesses by one Sh. Ram Kumar and Sh. V.K. Sharma, Advocate, SPA Ex. PW1/32, agreement to sell Ex. PW1/33, affidavit Ex. PW1/34, Receipt Ex. PW1/35 of Rs.42,000/- and GPA Ex. PW1/36. Now the price is increased within 6 months of Rs.2,000/- only. This is also unnatural and unbelievable that within six months again the flat has been sold. Ex. PW1/36, GPA by Sh. Jaspal Singh Narang in favour of present plaintif Sh. Bharat Bhushan Saraf dated 29.08.1996, deed of Will Ex. PW1/37 witnessed by Sh.Ranjit Singh Narang and Sh. O.P. Jhingan, Advocate dated 30.08.1996, Ex. PW1/38 is SPA, agreement to sell and purchase as Ex. PW1/39, Receipt of Rs.55,000/- is Ex. PW1/41. All documents are dated 30.08.1996 whereas receipt and GPA CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 35/40 are dated 29.08.1996. Sh. Jaspal Singh Narang entered into transaction with the plaintif again within six months. All the above documents establish on record that since the possession of 09.09.1994, the flat was kept on transferred. All documents not proved legally and no author of documents appeared in the witness box. All the documents are not properly and legally executed. All the precautions have been taken. The first two set of documents prepared by Sh. R.R. Dogra, Advoate and thereafter by Sh. V.K. Sharma, Advocate and lastly by Sh.O.P. Jhingan, Advocate.
61. In my considered opinion, right from the letter Ex. PW1/2, whereby restoration request was made by Sh. Roshan Lal of flat No. 7-C, JG-III, Vikas Puri, Delhi till Ex. PW1/40, a perfect chain of documents prepared which are not legal and genuine. The conduct of all the person involved in the transaction is unnatural and not genuine in the given circumstances. The plaintif has failed to bring on record the best witnesses establishing the genuine transaction of the suit flat right from Sh.Roshan Lal to plaintif Sh. Bharat Bhushan Saraf. All the documents established to be prima facie forged. The deed of Wills have no legal consequence as all the executors of Wills are alive. The whole transaction is a deep rooted conspiracy and it cannot be ruled out that officials of DDA are not involved in the all transactions and conspiracy.
62. There is no evidence brought on record that what happened to the initial allotted flat no. 7-C, Pocket JG-III, Vikas Puri, Delhi on record. DDA looses one flat or the original allottee Sh. Roshan Lal looses this flat and how and CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 36/40 who allotted suit flat, because record is not available with DDA. It has been observed in the noting of the original file that file of suit flat no. 173 B, JG-III, Vikas Puri, Delhi was found dumped in the DDA office because the original allottee Sh. Subhash Chander after fulfilling the initial requirement of the allotment died. It cannot be ruled out that officials at the relevant time posted dealing with these files taking the advantage of the peculiar circumstances along with all alleged authors of documents discussed herein above succeeded in selling illegally the suit flat. It is pertinent to mention that the record further shows that neither Sh. Roshan Lal nor any subsequent alleged purchaser paid any installment to the DDA throughout. None of the above said persons at any point of time taken permission or informed the DDA with regard to the alleged transactions.
63. On the basis of above observations and discussion, in my considered opinion, all the above alleged transactions of the suit flat bearing no. 173B, JG-III, Vikas Puri, Delhi right from defendant no.2 to defendant no.6 are illegal and based on illegal prima-faice forged documents. It was the onerous duty of the plaintif being the purchaser of the suit flat to enquire from the DDA about the true and correct circumstances and status with regard to allotment and alleged transactions prior to purchasing or entering into alleged transaction. A "buyer should be beware" principle is applicable. The plaintif may be involved in the whole transaction which is suspicious, shoddy and based on prima- facie forged documents cannot also be ruled out. Therefore, on the basis of above observation and discussion, all the transactions are not bonafide. There is no legal sale of suit CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 37/40 flat no. 173B, JG-III, Vikas Puri, Delhi by defendants no. 2 to
6. The plaintif is not a bonafide purchaser from the defendant no.6 of the suit flat no. 173B, JG-III, Vikas Puri, Delhi. The issue are decided accordingly against the plaintif and in favour of defendant no.1/DDA.
ISSUES NO. 7 & 864. The issue no. 7 deals with the entitlement of decree of specific performance and issue no. 8 deals with the entitlement of the plaintif to the decree of declaration, mandatory and perpetual injunction. For the sake of brevity, all the reasons and observations as discussed while deciding issues no. 2 to 6 are not reproduced herein. The entire documents brought on record by the plaintif sufer from legal infirmities and prima-facie forged documents. Therefore, there is no question of decree of any specific performance in favour of plaintif. Hence, plaintif is also not entitled for decree of declaration, mandatory injunction and perpetual injunction as claimed. The issues no. 7 & 8 are decided accordingly against the plaintif and in favour of the defendant no.1/ DDA.
ISSUE NO.9 (RELIEF)
65. On the basis of my findings on issues no. 2 to 8 above, it is held that plaintif is not entitled to any relief in this suit. The suit is dismissed.
66. No order as to costs.
CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 38/40
67. Decree sheet be prepared accordingly.
68. Before parting with the present case, it is necessary to mention that as per DDA record, a FIR was registered bearing No. 234/1997, Police Station Kotla Mubarark Pur, Delhi Ex. DW1/3. However, the concerned police officials did not take any interest and no proper investigation has been carried out. In the present facts and circumstances, it established on record that the flat No. 7-C, Pocket JG-III, Vikas Puri, Delhi has been lost the sight of DDA officials and no record produced in this regard and present status is not known. The allotment in favour of Sh. Roshan Lal on 23.08.1994 is prima-facie based on all forged documents. It cannot be ruled out that at the relevant time officials posted with DDA in the branch entered into a conspiracy and might have involved in preparation of forged documents and tried to establish a genuine cause for Sh.Roshan Lal and the Engineering Department also played a role by giving possession without verifying the documents. Therefore, their role in the conspiracy also cannot be ruled out. Right from Sh. Roshan Lal, Sh. Raju Aggarwal, Smt.Amarjeet Kaur, S. Harvinder singh, Sh. Jaspal Singh Narang and Sh. Bharat Bhushan Saraf are not interrogated by the police officials including witnesses to those documents and also officials of Sub Registrar. In my considered opinion, it is a fit case for thorough, deep and fair investigation to be carried out 'denovo'. Hence, I direct Commissioner of Police to constitute a team of police officers who especially deals with the cases of forgery and fabrication of documents and carry out a detailed investigation as per law. Copy of this order be sent to Commissioner of Police for compliance.
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69. File be consigned to Record Room.
Announced in the open court today the 1st November, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 01.11.2017 CS No. 13/17/97 (New No.8109/16) Bharat Bhushan Saraf &Anr. vs. DDA & Ors. 40/40