Delhi District Court
Sh. Rustam vs Mohd. Sahid @ Sayeed Ahmed on 5 June, 2012
IN THE COURT OF SH. GAUTAM MANAN
ASCJJSCCGJ : CENTRAL DISTRICT : DELHI
CS No. 256/08 & 259/08
1. SH. RUSTAM
S/O ALLAH MEHAR
R/O 2338, GALI DUGDUGI, SHAHKALAN
BAZAR CHITLI QABAR,
DELHI - 110006
2. SH. KHALID AHMAD
S/O SHRI HAZI JHIKRIA
R/O A48, VIVEK VIHAR - II
NEAR JHILMIL COLONY
DELHI 110092 ............ PLAINTIFFS
V E R S U S
1. MOHD. SAHID @ SAYEED AHMED
S/O RAIS AHMAD
R/O 2345, GALI DUGDUGI SHAHKALAN
BAZAR CHITLI, TURKMAN GATE
DELHI
2. SH. FEROZ AHMED
S/O RAIS AHMAD
R/O 2345, GALI DUGDUGI SHAHKALAN
BAZAR CHITLI QABAR,
NEW DELHI - 110006 ...........DEFENDANTS
INSTITUTION OF PETITION : 20.05.1999
ORDER RESERVED ON : 07.05.2012
JUDGMENT PRONOUNCED ON : 05.06.2012
Page 1 of 29 Suit No. 256/08 & 259/08
J U D G M E N T
PLEADINGS OF SUIT No. 256/08 of 1999
1.The plaintiffs have filed the Suit No. 256/08 of 1999 for Specific Performance, Declaration & Permanent Injunction in respect of property measuring 35.5 Sq. Yards land, 4 shops, 1 basement, 1 Verandah on the ground floor and one shop with roof rights on the first floor of property no. 2331, 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi. (hereinafter referred to as suit property)
2.It has been averred that the plaintiff purchased the suit property from defendant no. 1 vide General Power of Attorney, Agreement to sell, Affidavit, receipt & possession letter duly registered with sub registrar, duly executed by defendant no. 1 on 22.01.1999 in favor of the plaintiffs for a full and final consideration of Rs. 1,50, 000/. The defendant no. 1 handed over the peaceful possession of the suit property to the plaintiffs on 22.01.1999 itself and since then the plaintiffs are in possession of the suit property.
Page 2 of 29 Suit No. 256/08 & 259/08
3.Vide Agreement to sell dated 22.01.1999, the defendant had forfeited his right, interest or lien on the suit property and gave an undertaking that if the defendant will violate any term and condition of the agreement to sell the plaintiffs will at liberty to get it implemented by a suit for specific performance.
4.The plaintiff has averred that the defendant no. 1 to the utter disregard of the agreement to sell, sold the suit property to defendant no. 2 for a consideration of Rs. 75, 000/ vide sale deed dated 26.03.1999 and despite several requests made by the plaintiffs to the defendant no. 1 for execution of sale deed, the defendant no. 1 made false excuses. The defendant no. 1 in furtherance of his malafide intention also served upon the plaintiffs a false and frivolous notice dated 30.03.1999 which was duly replied by the plaintiffs through their reply dated 09.04.1999.
5.It has been averred that the sale deed dated 26.03.1999 in respect of the suit property executed by defendant no. 1 in favor of the defendant no. 2 is null and void in the eyes of the law as on the said date the defendant no. 1 had no title or interest over the suit property. Thus, by way of the present suit the plaintiffs Page 3 of 29 Suit No. 256/08 & 259/08 have sought a decree of specific performance seeking direction for the defendant no. 1 to execute the sale deed of the suit property in favor of the plaintiffs. A decree of declaration has been sought to declare the sale deed dated 26.03.1999 executed by defendant no. 1 in favor of defendant no. 2 as null and void and a decree of injunction to restrain the defendants from taking forcible possession of the suit property from the plaintiffs.
6.The defendant no. 1 did not file the written statement and the opportunity for him to file written statement was closed.
7.The defendant no. 2 in his written statement stated that he is absolute and lawful owner of the suit property by virtue of a sale deed executed on 26.03.1999 and registered on 31.03.1999 and he is bonafide purchaser of the suit property for sum of Rs. 75,000/ in good faith for valuable consideration. It is stated that the documents in favor of the plaintiffs are fictitious and the defendant no. 1 is in the actual, physical possession and is in symbolic possession of the suit property. It is stated that plaintiff is merely in possession of basement as a tenant under the defendant no. 2 and earlier he was occupying the basement as a tenant under defendant no. 1. It has been stated that the Page 4 of 29 Suit No. 256/08 & 259/08 plaintiffs have not complied with the requirements of Section 16 and 22 of Specific Relief Act, 1963 and the suit of the plaintiffs is liable to be rejected on this ground alone.
8.In the replication the plaintiffs reiterated the averments made in the plaint and denied the allegations made in the written statement.
PLEADINGS OF SUIT NO.259/08 of 2001
9.The plaintiffs instituted suit no. 259/08 on 17.04.2001 against Zakir s/o. late Sh Farooq r/o. House no.2341, Gali Dugdugi Shah Kalan, Bazar Chitli Qabar, Delhi - 110 006 & defendant no.2 seeking relief of recovery of possession and permanent injunction in respect of a shop in property no.23312332, Gali Dugdugi Shah Kalan, Chitli Qabar, Turkman Gate, Delhi06.
10.The plaintiffs have averred that they have purchased freehold built suit property measuring 52 Sq. Yards by virtue of a Sale Deed dated 12.11.1999 executed by Sh Syed Ahmed through his attorney Sh Tanvir Khan and peaceful vacant possession of the suit property has been delivered to them.
Page 5 of 29 Suit No. 256/08 & 259/08
11.The plaintiffs have averred that the prior to the execution of Sale Deed dated 12.11.1999 the executant Syed Ahmed executed an agreement to sale, power of attorney, receipt and possession letter and handed over the possession of the property including the shop to the plaintiffs on 22.01.1999 but did not come forward to execute the Sale Deed even after receiving the entire consideration of Rs.1,50,000/ despite requests of plaintiffs. Rather, Syed Ahmed executed a registered Sale Deed dated 26.03.1999 in favour of his real brother Firoz Ahmed (defendant no.2).
12.It is stated that vide orders dated 17.07.1999, Ld ADJ declared sale deed dated 26.03.1999 null & void and further directed Syed Ahmed to execute the Sale Deed in favour of the plaintiffs in respect of the suit property in that suit.
13.It has been averred that the plaintiffs are joint owners/landlords of the entire suit property measuring 52 Sq. Yards by virtue of a registered Sale Deed dated 12.11.1999. However, the defendant no.1 entered in the suit property as criminal trespasser on 30.03.2001 on the behest of the defendant no.2 and starting dismentaling and damaging the Page 6 of 29 Suit No. 256/08 & 259/08 shop in dispute as shown red colour in the site plan for the purpose of unauthorized capturing and converting the same for his own use in utter disregard and violation of law.
14.The plaintiffs have alleged that the plaintiff no.1 lodged a formal complaint in writing to the local police station on 30.03.2001 but all in vain and in the night of 04.04.2001, the defendant no.1 broke open the lock of the shop and forcibly and illegally occupied the premises in question and stored his tables and chairs and put Campa Cola Crates. The plaintiff no.1 lodged a complaint against the acts of defendant no.1 with Lieutenant Governor, DCP Central District, ACP & SHO but no action was taken against the defendants. Hence, by way of present suit, plaintiffs are seeking recovery of possession of the shop and decree of permanent injunction to restrain defendants from illegally trespassing and occupying suit premises.
15.Zakir in his written statement submitted that he has no interest in the suit premises and he is neighbor to the plaintiffs as well as defendant no.2 and being a best friend of the defendant no.2, the plaintiffs have falsely impleaded him in the present suit. Zakir denied the incidents of 30.03.2001 and 04.04.2001.
Page 7 of 29 Suit No. 256/08 & 259/08
16.The defendant no.2 in the written statement submitted that the plaintiffs got an exparte decree against defendant no.2 and his brother Sh Syed Ahmed after obtaining a forged and fabricated report from the process server. It is stated that Syed Ahmed never resided at the address given by the plaintiffs in their suit.
17.The defendant no.2 has alleged that the Sale Deed dated 12.11.1999 is a bogus, baseless and frivolous document and the SubRegistrar has no power to get it registered without giving notice to the interested parties. It is stated that the plaintiffs in earlier Suit a exparte decree on 17.07.1999 and according to the said decree, defendants namely Syed Ahmed was directed to execute the Sale Deed in favour of the plaintiffs for a suit property measuring 35 ½ Sq. Yards only. The plaintiffs after obtaining a decree from the Court instead of filing a execution brought a fictious person as Tanvir Khan and made a fabricated and forged SPA in his favour and after that both the plaintiffs got a Sale Deed registered from him and thus, it is cleared that the plaintiffs have played fraud.
Page 8 of 29 Suit No. 256/08 & 259/08
18.It is stated that the defendant no.2 is an exclusive owner and in possession of the suit property by virtue of Sale Deed dated 26.03.1999 executed by Syed Ahmed and the plaintiffs were merely a tenant of the adjoining property of 35 ½ Sq. Yards @ Rs. 200/ per month of Sh Rais Ahmed, father of the Syed Ahmed as well as of the defendant no.2 and when Sh Rais Ahmed was near to death, the plaintiffs were prepared forged and fabricated documents and produced them before the Court of Ld ADJ and got exparte decree in their favour.
19.In the replication, the plaintiffs denied the allegations made in the written statement and reiterated the avernments made in the plaint.
20.Vide orders dated 06.01.2003, both suits 256/08 & 259/08 were directed to be tried together and for both the suits the following issues were framed in Suit No.256/08 on 27.01.2003 as under:
1. Whether plaintiff is entitled for Specific Performance against Mohd. Shahid @ Sayeed Ahmed thereby directing him to execute sale deed in favor of plaintiff in respect of his suit property as prayed for? OPP.
2. Whether plaintiff is entitled to decree for declaration in favor of plaintiff and against defendant Mohd. Shaheed an Feroz Ahmed for declaring sale deed dated 26.03.1999 as null and void? OPP.Page 9 of 29 Suit No. 256/08 & 259/08
3. Whether the plaintiff is entitled to decree for recovery in respect of shop forming part of property bearing no. 2331, 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi against defendant Zakir and Feroz Ahmed? OPP.
4. Whether the plaintiff is entitled to decree for permanent injunction against Mohd. Shaheed and Feroz Ahmed to restrain them from taking forcible or illegal possession of suit property? OPP.
5. Whether plaintiff is entitled to Decree for perpetual injunction to restrain defendant Mohd. Zakir and Feroz Ahmed from trespassing and keeping the suit shop? OPP.
6. Whether the defendant no. 2 is the absolute lawful owner of house No. 233132, Gali Dugdugi, Shah Kallan, Bazar Chitli Qabar, Turkman Gate, Delhi by means of sale deed executed on 26.03.1999 and registered on 31.03.1999? If so, to what effect? OPD.
7. Whether the suit of the plaintiff is not maintainable on account of non - compliance with Section 16 and 22 of the Specific Relief Act, 1963? OPD.
8. Relief.
21.In order to prove their case the plaintiffs have examined PW1 Sh. Rustam, who tendered his evidence by way of an affidavit Ex. PW1/A, he proved site plan of the suit property as Ex. PW1/1, General Power of Attorney as Ex. PW1/2, Agreement to sell as Ex. PW1/3 , Affidavit as Ex. PW1/4, receipt as Ex. PW1/5. Sale deed executed by defendant no.1 in favor of the defendant no. 2 as Page 10 of 29 Suit No. 256/08 & 259/08 Ex.PW1/6, Notice sent by the defendant no. 1 as Ex. PW1/7, Reply to the notice sent by the plaintiffs along with its postal receipt as Ex. PW1/8 & 9, the police complaint Ex. PW1/10, a special power of attorney executed by defendant no. 1 in favor of Sh. Tanveer Khan dated 05.11.1999 is Ex. PW1/11, a sale deed dated 12.11.1999 executed by Mr. Tanvir Khan in favor of the plaintiffs as Ex. PW1/12 and mutation letter sanctioned in favor of the plaintiffs as Ex. PW1/13. The PW1 deposed on the lines of the plaint.
22.PW2 Sayeed Khan tendered his examination in chief by way of affidavit Ex. P2 and deposed that he was attesting witness to the special power of attorney executed by defendant no. 1 in favor of Sh. Tanvir Khan on 5.11.1999. The witness deposed that the attorney of defendant no. 1 executed a sale deed on 12.11.1999 in favor of the plaintiffs before the subregistrar and he is the attesting witness to said sale deed as well. PW2 further testified that defendant no. 2 had trespassed illegally along with one Sh. Zakir on 30.03.2001 in one shop out of the suit property and therein unauthorized occupation.
Page 11 of 29 Suit No. 256/08 & 259/08
23.In defense, the defendant no. 2 appeared as DW1 and tendered his examination in chief by way of an affidavit Ex. D1. DW1 proved a original GPA Ex. DW1/1, Counter foils are Ex. DW1/2 to 9, Sale deed dated 26.03.1999 as Ex. DW1/10, original receipt of MCD dated 28.11.1999 as Ex. DW1/11 and original receipt of MCD dated 20.01.2000 as Ex. DW1/12.
24.DW2 Manglu Ram tendered his examination in chief by way of an affidavit Ex. D2. DW2 deposed that he was good friend of late Sh. Rais Ahmed, who died in the year 2002 and the plaintiffs are also well known to him. He further deposed that the G.P.A Agreement to Sell, Affidavit and Receipt dated 22.01.1999 relied upon by plaintiffs are forged and fictitious, the plaintiffs are in possession as tenant under the defendant no. 2 and prior to 26.03.1999 were tenants under the defendant no. 1, through his attorney Rais Ahmed.
25.I have heard the Ld. Counsel for parties and have gone through the record, the issue wise findings are as under: Page 12 of 29 Suit No. 256/08 & 259/08
26. ISSUE NO.1 : Whether plaintiff is entitled for Specific Performance against Mohd. Shahid @ Sayeed Ahmed thereby directing him to execute sale deed in favor of plaintiff in respect of his suit property as prayed for? The case of the plaintiff is that he has purchased the suit property from defendant no. 1 vide an agreement to sell Ex. PW1/3 on 22.01.1999 and various other documents were also executed between them and defendant no. 1. The plaintiffs were also put in possession by the defendant no. 1 on the same very date. In support of his case the plaintiff has proved the execution of documents such as a power of attorney Ex. PW1/2, an affidavit as Ex. PW1/4 and a receipt for consideration amount of Rs. 1,50,000/ as Ex. PW1/5. It has been deposed by PW1 that despite various requests made by the plaintiffs to defendant no. 1, the defendant no. 1 did not execute the sale deed and as such the plaintiffs are entitled to get the sale deed executed from defendant no. 1 by virtue of the agreement to sell Ex. PW1/3.
27. On the other hand the defendant no. 2 has contended that the defendant no. 2 has a prior executed sale deed in his favor and the documents relied by the plaintiffs does not give them any right nor the plaintiffs have made an averment in the plaint that they are willing to perform their part of contract and Page 13 of 29 Suit No. 256/08 & 259/08 specific performance is being prayed by them despite their own averments that sale deed has been executed in their favor through attorney.
28.The defendant no. 1 has not contested the claim of plaintiffs in respect of execution of an agreement to sell and other related documents executed by him in favor of plaintiffs by defendant no. 1. The defendant no. 1 although has appeared in the suit but neither he has filed any written statement nor has appeared in the witness box in order to deny the execution of Ex. PW1/3 that is an agreement to sell dated 22.01.1999. Thus, the execution of Ex. PW1/3 by the defendant no. 1 stands established. The locus of the defendant no. 1 to execute Ex. PW1/3 has also not been challenged as the defendant no. 2 himself claims to have purchased the suit property from defendant no. 1 through a registered sale deed dated 26.03.1999 Ex. PW1/6.
29.Now the question is to be answered, as to whether agreement to sell which has entered between the plaintiff and the defendant no. 1 on 22.01.1999 would prevail over the sale deed executed by defendant no. 1 in favor of defendant no. 2 on 26.03.1999. Page 14 of 29 Suit No. 256/08 & 259/08
30.Ex. PW1/3, agreement to sell has been executed by defendant no. 1 in favor the plaintiffs wherein he has agreed to sell the suit property for a sum of Rs. 1,50,000/ and as per the agreement the entire sale amount has been received by the defendant no. 1 from the plaintiffs. As per the Clause IV of the agreement the defendant no. 1 has left with no right, title or interest after execution Ex. PW1/3. As per Clause VI of this agreement it has also been laid down that if defendant no. 1 infringes the terms of the agreement to sell then the plaintiff shall be entitled to get implemented through Court of Law by seeking specific performance of this agreement. It is matter of record that although there is no time stipulation given in the agreement even then the plaintiff instituted their suit just after four months of entering into the agreement to sell.
31.In the light of the stipulations of Ex. PW1/3 , it is evident that after executing the agreement to sell on 22.01.1999 the defendant no. 1 had left with no right or title in respect of the suit property specially when he had received the entire sale consideration and handed over the possession of the suit property to the plaintiffs. Once the defendant no. 1 had executed Ex. PW1/3 , he had left with no right to have executed the sale deed on 26.03.1999 in favor of defendant no. 2, Page 15 of 29 Suit No. 256/08 & 259/08 therefore, the contention of the defendant no. 2 that since the defendant no. 2 is the holder of the sale deed executed by defendant no. 2 in his favor the plaintiffs are not entitled to the decree of specific performance is not sustainable on the account that on the day the sale deed was executed the defendant no. 1 had already entered into an agreement to sell Ex. PW1/3 and had received the entire consideration amount pursuant to the agreement.
32. Moreover, the fact that the sale deed executed by defendant no. 1 in favor of his real brother defendant no. 2 is merely for Rs. 75,000/ that is half the amount for which the defendant no. 1 had executed an agreement to sell in favor of the plaintiffs also creates a doubt as to under what circumstances the said sale deed Ex. PW1/6 was executed in favor of defendant no. 2 by defendant no. 1. Needless to say the defendant no.1 did not appear to explain the execution of sale deed in favor of defendant no.2.
33. The other contention of defendant no. 2 is that plaintiffs have not averred that been ready and willing to perform the essential terms of the contract, therefore in absence of any avernment in this regard they are not entitled to the decree of specific Page 16 of 29 Suit No. 256/08 & 259/08 performance. I have given thoughtful consideration to this aspect also and in my considered opinion plaintiffs have already paid the entire consideration amount to defendant no. 1 and have also received possession of suit property. Therefore, no other act had to be performed by the plaintiffs on their part except the execution of the sale deed rather the defendant no. 1 was under obligation to get the sale deed executed in favor of plaintiffs for which he did not come forward and hence this contention of defendant no.2 is not tenable in facts of the case.
34.Thus, in the light of the fact that the agreement to sell Ex. PW1/3 stands duly proved entitles the plaintiffs to get it performed from the defendant no.1.The sale deed Ex PW1/12 in respect of the suit property stands already executed in favor of the plaintiffs by Sh. Tanvir Khan, SPA holder of defendant no.1. Thus, no further sale deed is required to be executed. The issue stands accordingly answered.
35. ISSUE NO.2 : Whether plaintiff is entitled to decree for declaration in favor of plaintiff and against defendant Mohd. Shaheed an Feroz Ahmed for declaring sale deed dated 26.03.1999 as null and void? The case set out by the plaintiff is that by the virtue of an agreement to sell Ex. PW1/3, the Page 17 of 29 Suit No. 256/08 & 259/08 defendant no. 2 agreed to sell the suit property to the plaintiffs. It has been submitted that the sale deed dated 26.03.1999 was executed by the defendant no. 1 in favor of the defendant no. 2 after he had executed an agreement to sell in favor of plaintiffs.
36.It has been argued on behalf of defendant no. 2 that the plaintiffs are tenants of defendant no. 1 and after execution of sale deed Ex. PW1/6 dated 26.03.1999, the plaintiffs have become tenants of defendant no. 2 as the title of property passed in favor of defendant by virtue of sale deed Ex. PW1/6. The defendant no. 2 has relied upon AIR 1975 Calcutta 455 wherein it has been held that in the competition between two title deeds one in favor of the plaintiff and another in favor of defendant, the former one being prior in time will prevail.
37.It has been submitted that sale deed Ex. PW1/6 is prior to the sale deed relied upon by the plaintiffs hence the sale deed in favor of defendant no. 2 is a legal document and the same being legally executed by the defendant no. 1 in favor of defendant no. 2 cannot be declared as null and void. On the other hand the plaintiffs have submitted that during the course of cross examination of DW1 admitted that in 1999, his income was Page 18 of 29 Suit No. 256/08 & 259/08 Rs.7,0008,000/ per month therefore the defendant no. 2 was not in position to purchase the suit property from his real brother and consideration shown in the sale deed Ex. PW1/6 is fake and has been manipulated to defeat the prior claim of the plaintiffs. It has been argued that the sale deed is a sham document executed between defendant no. 1 & 2 and it has been admitted by DW1 that the documents of sale in favor of the plaintiffs as Ex. PW1/2 to PW1/5 dated 22.01.1999 are prior to the sale deed dated 26.03.1999 Ex. PW1/6 and hence the plaintiffs were having charge over the suit property and therefore the sale deed Ex. PW1/6 is liable to be declared as null and void.
38.It is matter of record that defendant no. 1 did not enter in the witness box in order to clarify the position created by him by executing two different set of documents in favor of the plaintiffs and defendant no. 2. Although, the defendant no. 1 joined the hands of defendant no. 2 in instituting a Suit bearing No. 260/08 seeking Cancellation of the Sale Deed dated 12.11.1999 as a plaintiff no.1 but he did not appear before the Court in order to support the allegations leveled by him against the plaintiffs.
Page 19 of 29 Suit No. 256/08 & 259/08
39.It is evident that the documents Ex. PW1/2 to 1/5 were executed on 22.01.1999 and as per these documents the defendant no. 1 not only received the entire sale consideration in respect of the suit property but also he executed the possession letter Ex. PW1/3B thereby handing over the physical possession of the suit property to the plaintiffs. Therefore, on the 26.03.1999 when the defendant no. 1 executed the sale deed Ex. PW1/6 in favor of defendant no. 2 he had already entered into an agreement with the plaintiffs to sell the suit property to them. As stated above the defendant no. 1 received the entire sale consideration and also executed a possession letter in favor of the plaintiffs. The defendant no. 1 has not appeared to deny the execution of documents and agreement to sell in favor of the plaintiffs. Therefore, on 26.03.1999 when the sale deed Ex. PW1/6 was executed in favor of the defendant no. 2 by defendant no. 1, he had already given up the right, title or interest in the suit property in favor of the plaintiffs. As such he did not possess the right to execute the sale deed on 26.03.1999. Therefore, it has to be concluded that when the defendant no.1 executed the sale deed Ex. PW1/6 on 26.03.1999 in favor of defendant no.2, he had no authority to do so and as such no relevance can be attached to the sale deed Ex.PW1/6. Therefore, the sale deed Ex. PW1/6 dated 26.03.1999 has no legal sanctity and thus it is liable to be Page 20 of 29 Suit No. 256/08 & 259/08 declared as null and void. Accordingly, the issue stands decided in favor of the plaintiffs.
40. ISSUE NO. 3: Whether the plaintiff is entitled to decree for recovery in respect of shop forming part of property bearing no. 2331, 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi against defendant Zakir and Feroz Ahmed? The plaintiffs in their Suit no.259/08 have claimed the possession in respect of shop forming part of the suit property from the defendants. It has been deposed by the PW1 by way of an affidavit filed in Suit no. 259/08 that Zakir entered the disputed shop on 30.03.20001 on behest of the defendant no.2 and started damaging the shop for the purposes of unauthorized capturing and converting the same for his use in complete violation of law. The plaintiff no.1 immediately lodged a complaint and again on 04.04.2001, the defendant no.1 broke open the lock of the shop and forcibly occupied the premises and he stored his table and chairs and put Campa Cola Crates. The plaintiff no.1 immediately rang up the police and also made a complaint to various authorities but the defendants succeeded in unauthorized occupation of the suit shop and thus the recovery of possession of the suit shop has been prayed.
Page 21 of 29 Suit No. 256/08 & 259/08
41.Zakir, (defendant no.1 in Suit no.259/08) completely denied the allegations made in the plaint and the defendant no.2 submitted that the plaintiffs are not the owners of the suit shop and the sale deed dated 12.11.1999 on which the plaintiffs are relying upon his forged and fabricated document. The defendant no.2 stated that the plaintiffs were merely a tenant of adjoining of property 35 ½ Sq Yards and they have no concern with the shop in question. It has been further stated that the plaintiffs cannot claim the ownership of 52 Sq Yards of land when the decree obtained by them is only for 35 ½ Sq Yards and thus, the plaintiffs are not entitled for the decree of recovery of possession as claimed by them in Suit No.259/08.
42.In order to establish their claim over the suit shop the plaintiffs have relied upon a Sale Deed, Ex PW1/12 dated 12.11.1999 which is executed in favour of the plaintiffs by Syed Ahmed through his special attorney Mr. Tanvir Khan for the suit property. The Sale Deed, Ex. PW1/12 mentions that as per the Court Orders dated 17.07.1999 the vendor is executing a Sale Deed in respect of the suit property measuring 52 Sq Yards. Page 22 of 29 Suit No. 256/08 & 259/08
43.It has been argued on behalf of defendants that as per the Court orders the Sale Deed was directed to be executed only in respect of property measuring 35 ½ Sq Yards and not 52 Sq Yards and the documents Ex.PW1/2 to 5 on which the plaintiffs are relying are also in respect of 35 ½ Sq Yards and not 52 Sq Yards. The Sale Deed dated 12.11.1999 has been executed for 52 Sq Yards of land whereas the consideration paid by the plaintiffs was only in respect of 35 ½ Sq Yards and not of 52 Sq Yards. It has been also submitted that the plaintiffs have not produced the special attorney Tanvir Khan in order to establish their claim that Tanvir Khan was duly authorized person by the Syed Ahmed to execute the Sale Deed in favour of the plaintiffs. Therefore, the genuineness of the Sale Deed dated 12.11.1999 is doubtful and on the basis of the same, the plaintiffs cannot be given possession of the disputed shop to the plaintiffs.
44.I have perused the documents Ex. PW1/2 to 1/5, wherein it has been mentioned that the sale agreement and the possession letter has been executed for 35 ½ Sq. Yards of the property. However, the documents Ex. PW1/2 to 1/5 not only describes the measurement but also the nature of construction for which the sale agreement was executed i.e. 4 shops, 1 basement, 1 Verandah on the ground floor and one shop with roof rights on Page 23 of 29 Suit No. 256/08 & 259/08 the first floor of property no. 2331 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi. Although the sale deed Ex. PW1/12 mentions the measurement of the suit property as 52 Sq. Yards but there is no difference in the description of constructed portion and Ex. PW1/12 also describes the exact construction as mentioned in the documents Ex. PW1/2 to PW1/5. Therefore, it becomes evident that the agreement to sell and the sale deed having been executed for the same constructed portion. The area of sale is differently mentioned in Sale Deed and the agreement to sell will not make much difference as the description of constructed portion is same in the recital of documents in favor of the plaintiffs.
45.The other objection taken by the defendant no. 2 is in respect of the execution of sale deed Ex. PW1/12 by the attorney of the Sh. Syed Ahmed namely Sh.Tanvir Khan on the basis of special power of attorney Ex. PW1/11. Syed Ahmed did not enter the witness box in order to establish that Ex. PW1/11 was not executed by him. Neither the defendants have examined any witness in order to establish their case that Tanvir Khan is a fictitious person or that he was not authorized to execute the Sale Deed Ex. PW1/12 in favor of the plaintiffs. PW2 is attesting Page 24 of 29 Suit No. 256/08 & 259/08 witness to both PW1/11 and his testimony has not been shaken during course of his crossexamination. Sale Deed, Ex. PW1/12 was executed pursuant to the agreement to sell between the plaintiffs and Syed Ahmed and therefore by virtue of the sale deed the plaintiffs have become the owner of the suit property.
46.In respect of the suit shop the defendant no. 2 claims his possession from 26.03.1999 and in his testimony he has deposed that prior to 26.03.1999, the Syed Ahmed was the owner of disputed shop. During the course of his cross examination defendant no. 2 deposed that out of the suit property he is in possession of a shop and further admitted that a Kalandra was registered U/s 145 Cr.P.C. before the S.D.M. in year 2001.
47.Nothing has been brought on record by DW1 in order to establish that he enjoyed the possession of disputed shop since 26.03.1999, whereas the plaintiffs by proving the possession letter Ex PW1/3B executed by Syed Ahmed (owner of the suit property as per admitted case of the parties) in their favor have proved that they got the possession of the entire suit property from Syed Ahmed along with the disputed shop. The plaintiffs have led their evidence and also proved a copy of complaint made to the Police alleging the trespass by defendant no. 2 Page 25 of 29 Suit No. 256/08 & 259/08 along with Zakir in the disputed shop. The defendant no. 2 admits his possession over the disputed shop but claims that he was put in possession by the Syed Ahmed which stands disproved by virtue of documents executed by Syed Ahmed in favor of the plaintiffs. Thus, the plaintiffs being owners are entitled for recovery of possession of disputed shop from the Zakir and the defendant no. 2. The issue stands answered in favor of the plaintiffs.
48. ISSUE NO. 4: Whether the plaintiff is entitled to decree for permanent injunction against Mohd. Shaheed and Feroz Ahmed to restrain them from taking forcible or illegal possession of suit property? The defendant no. 1 has not entered the witness box in order to controvert the deposition made on behalf of the plaintiffs. It has already been held that the plaintiffs are the owners of the suit property by virtue of sale deed Ex PW1/12. Therefore, the plaintiffs are the lawful occupiers of the suit property and the defendants have no right to take forcible or illegal possession of the suit property from them. Accordingly, it is held that the plaintiffs are entitled to decree of permanent injunction as claimed by them in the present suit.
Page 26 of 29 Suit No. 256/08 & 259/08
49. ISSUE NO.5 : Whether plaintiff is entitled to Decree for perpetual injunction to restrain defendant Mohd. Zakir and Feroz Ahmed from trespassing and keeping the suit shop? The plaintiffs are held to be lawful owners of the suit property and being owners they are entitled to restrain defendants Mohd. Zakir and Feroz Ahmed from trespassing and keeping the suit shop. The issue stands decided against the defendants.
50. ISSUE NO.6 : Whether the defendant no. 2 is the absolute lawful owner of house No. 233132, Gali Dugdugi, Shah Kallan, Bazar Chitli Qabar, Turkman Gate, Delhi by means of sale deed executed on 26.03.1999 and registered on 31.03.1999? If so, to what effect? While deciding the issue no. 2, it has already been held that the sale deed executed by defendant no. 1 in favor of defendant no. 2 has no relevance and therefore the defendant no. 2 is not entitled to be lawful owner of the suit property on basis of sale deed dated 26.03.1999, Ex. PW1/6. Accordingly, the issue stands decided in favor of the plaintiffs and against the defendant no. 2.
Page 27 of 29 Suit No. 256/08 & 259/08
51. ISSUE NO.7 : Whether the suit of the plaintiff is not maintainable on account of non - compliance with Section 16 and 22 of the Specific Relief Act, 1963? The contention of the defendant no. 2 is that the plaintiffs have not averred that been ready and willing to perform the essential terms of the contract, therefore in absence of any averment in this regard they are not entitled to the decree of specific performance.
52.I have given thoughtful consideration to this aspect also. The plaintiffs have sought a decree of specific performance not against the defendant no.2 but against defendant no.1. The defendant no.1 did not contest the suit nor the objection has come from his side. In my considered opinion the plaintiffs have already paid the entire consideration amount to the defendant no.1 and have also received the possession of the suit property. Therefore, no other act had to be performed by the plaintiffs on their part except the execution of the sale deed. The defendant no. 1 was under obligation to get the sale deed executed in favor of the plaintiffs for which he did not come forward and hence the contention of the defendant no. 2 that there is non - compliance with Section 16 and 22 of the Specific Relief Act, 1963 is not tenable in the facts of the case. The issue accordingly stands answered in favor of the plaintiffs.
Page 28 of 29 Suit No. 256/08 & 259/08
53. RELIEF: In the light of the aforesaid discussions, the Suit No. 256/08 of the plaintiffs stands decreed with costs against the defendants, thereby declaring the Sale Deed dated 26.03.1999 as null and void and having no binding effect. The defendants are further restrained from taking forceful and illegal possession of the suit property measuring 52 Sq. Yards land, 4 shops, 1 basement, 1 Verandah on the ground floor and one shop with roof rights on the first floor of property no. 2331 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi.
54. The Suit No. 259/08 of the plaintiffs stands decreed against the defendants Zakir and Feroz Ahmed , thereby directing them to hand over the peaceful possession of a shop shown in site plan Mark B in Suit no. 259/08 situated in property no. 2331 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi. The defendants are further restrained from illegally trespassing and occupying the suit property. The plaintiffs shall entitled for the cost of the suit. Decree Sheet be drawn.
File be consigned to Record Room.
GAUTAM MANAN ASCJJSCCGJ CENTRAL/DELHI/05.06.2012 Page 29 of 29 Suit No. 256/08 & 259/08 Suit No. 256/08 RUSTAM & ORS. V/S MODH SHAHID @ SYEED & ORS.
05.06.2012 Present : None.
Vide separate judgment, the suit of the plaintiffs stands decreed with costs against the defendants, thereby declaring the Sale Deed dated 26.03.1999 as null and void and having no binding effect. The defendants are further restrained from taking forceful and illegal possession of the suit property measuring 52 Sq. Yards land, 4 shops, 1 basement, 1 Verandah on the ground floor and one shop with roof rights on the first floor of property no. 2331 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi.
The plaintiffs shall entitled for the cost of the suit. Decree Sheet be drawn.
File be consigned to Record Room.
GAUTAM MANAN
ASCJJSCCGJ
CENTRAL/DELHI/05.06.2012
Page 30 of 29 Suit No. 256/08 & 259/08
CS No. 259/08
RUSTAM & ORS V/S ZAKIR & ORS.
05.06.2012
Present : None.
Vide separate judgment, the suit of the plaintiffs stands decreed against the defendants Zakir and Feroz Ahmed, thereby directing them to hand over the peaceful possession of a shop shown in site plan Mark B in Suit no. 259/08 situated in property no. 2331 2332, Gali Dugdugi, Shah Kalan, Bazar Chitli Qabar, Turkman Gate, Delhi. The defendants are further restrained from illegally trespassing and occupying the suit property.
The plaintiffs shall entitled for the cost of the suit. Decree Sheet be drawn.
File be consigned to Record Room.
GAUTAM MANAN ASCJJSCCGJ CENTRAL/DELHI/05.06.2012 Page 31 of 29 Suit No. 256/08 & 259/08