Delhi District Court
Hari Ram vs Hari Lal on 6 May, 2024
IN THE COURT OF SH. SUNIL BENIWAL,
ADDITIONAL DISTRICT JUDGE-06,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ NO.7734/2016
CNR No.DLST01-000601/2012
Shri Hari Ram
S/o late Sh. Dasai
R/o House No.408, Block - M,
Gali No.7, Sangam Vihar,
New Delhi 110019. .....PLAINTIFF
VERSUS
1. Shri Hari Lal (since deceased)
S/o Sh. Dasai
2. Shri Jagdish
S/o late Hari Lal
3. Smt. Chandra Wali
CS No.7734/2016 page 1 of 37
W/o late Hari Lal
4.Ms. Geeta
D/o late Hari Lal
5.Sh. Ramesh
S/o late Hari Lal
6.Sh. Rajanish
S/o late Hari Lal
All R/o 19/72, Dakshinpuri,
Dr. Mabedkar Nagar,
New Delhi-110062 .....DEFENDANTS
Date of Institution : 28.08.2012
Date of conclusion of Arguments : 18.04.2024
Date of Judgment : 06.05.2024
SUIT FOR RECOVERY OF POSSESSION, DECLARATION OF
TITLE, DECLARATION OF TITLED DOCUMENTS OF THE
DEFENDANTS AS NULL AND VOID AND FOR PERMANENT
INJUNCTION.
CS No.7734/2016 page 2 of 37
JUDGMENT
FACTS:
1. It has been submitted by the Plaintiff that he is the owner of suit property i.e. bearing No.19/72, Dakshin Puri Extension New Delhi by way of title documents dated 26.04.1984, executed by its previous owner Sh. Ranjeet Dass. It is submitted by the Plaintiff that he also constructed a house on the suit property after purchasing it. One Sh. Ram Bachan (PW-2) also purchased the adjoining plot from the same owner. Thereafter the Plaintiff started residing in the suit property. In the year 1990, on the request of the Defendant No.l, the Plaintiff, as averred, allowed him to reside in the suit property as a permissive licensee. In the year 1992, the Defendant No. 2 also started residing in the suit property with Defendant No.l and Plaintiff as licensee with permission of Plaintiff.
2. It is submitted, in the month of May 2011, the Plaintiff went to his native village where he stayed there for some time and on 16.08.2011, when the Plaintiff returned, he was surprised and shocked to see that Defendant No.1 removed all the belongings of the Plaintiff from ground floor and stored on the CS No.7734/2016 page 3 of 37 1st floor and defendant No.2 occupied the second floor.
3. As averred, thereafter the Plaintiff found that lock of his trunk had been broken open by the Defendants and he had stolen the original title documents of suit property, Election Card, Ration Card and some other important documents and the Defendants started claiming their rights on the suit property and refused to hand over the possession on the ground floor and the 2nd floor to the Plaintiff. The Plaintiff made Complaint to the Police on 16.08.2011 and 17.08.2011 and started living on the 1st floor of the suit property. Thereafter the Plaintiff came to know that the Defendant No.2 who was working with property dealers, was trying to illegally sell the suit property. The Plaintiff initially filed a suit for Possession and Permanent Injunction against the Defendants.
4. As averred, thereafter the Defendants filed their written statement and filed the forged and fabricated title documents of the suit property claiming that they were the owner of the suit property.
5. Further thereafter the Plaintiff filed an application under order 6 rule 17 R/W section 151 of CPC for amendment in the plaint thereby adding one more prayer of Declaration qua the ownership of the Plaintiff of suit property and Declaration of the title documents of Defendants to Declare null and void which CS No.7734/2016 page 4 of 37 was allowed by the Hon'ble Court subject to costs of Rs 5,000/-
thereby allowing the application.
6. The plaintiff examined himself as PW-1 and one Mr Ram Babu as PW-2, one official of BSES Rajdhani as PW-3, HC Subhash Chand from PS- Ambedkar Nagar as PW-4, one Sarup Singh, ASO Delhi Jal Board as PW-5.
7. DW-1 could only be partly examined due to his sudden demise. Despite advancing several opportunities to DW-2 to lead evidence, DW-2 chose not to lead any evidence before the Court.
8. The defense of the Defendants is that the Plaintiff has not valued the suit property and has not paid the proper court fee of the plaint. Another ground as pleaded by the Defendants is that the Defendant No.l was working in IRAQ, and was earning handsome amount and purchased the suit property and the documents of the suit property were prepared by the Plaintiff himself in the name of the Defendant No.1 through his Advocate.
9. It is further submitted by plaintiff that the defendants have admitted that the plaintiff was residing at the subject property till 2011. Hence, as averred, as per admission of the Defendant No.l in his cross examination, it is clear that the Plaintiff was in possession of the suit property till 2011. The portion of cross examination is as follows:
CS No.7734/2016 page 5 of 37 " Since, Plaintiff and Defendants were residing together in the suit property till 2011 and were cordial relation with each other so I did not transfer the connection of water and electricity in my name"
10. It has also been averred that the Defendants have not mentioned in their WS that in what capacity, the Plaintiff was residing in the suit property from 1984 to 2011.
11. It been further averred that the Defendants mentioned in their WS that at the time of purchasing the suit property, the Defendant No.1 was in IRAQ and all the documents were prepared by the Plaintiff himself in the name of the Defendant No.1 through his Advocate.
12. The relevant portion as mentioned by the Defendants in Para No. 1 of Reply on Merits as:
"It is submitted that the Defendant No.1 was working in IRAQ and was earning handsome amount and the Defendant No. 1 purchased the suit property on 26.04.1984 and the Defendant No. 1 is the right full owner and in possession of the suit property and all the documents were got prepared by the Plaintiff himself in the name of Defendant No. 1 through his Advocate as at that time the relation between the plaintiff CS No.7734/2016 page 6 of 37 and defendant no.1 was very cordial being real brothers."
13. It is submitted by the plaintiff that when DW-1 was confronted with this Paragraph, the Defendant No.1 changed his plea and again stated that he was present in India.
14. The relevant portion of his cross examination is:
"At this stage, witness has been confronted with Para No.l of reply on merits of the written statement. It is wrong to suggest that at the time of executing the documents Ex-DW- 1/1 (Colly). I was not present in India and I was residing in the IRAQ. The documents Ex-DW-1/1 was prepared in Tis Hazari Court by an Advocate but I do not remember his name."
15. The Plaintiff has denied the title documents of the Defendant No. 1. It is important to mention here that the Defendant No.1 has not proved his title documents by leading any evidence i.e. the previous owner who executed the said documents or any of the witness of the title documents or the Notary Public who attested the documents.
16. On the other hand the defendant no.1 did not produce his passport before the Court to prove the fact that he was in India.
17. Upon the counsel for the plaintiff asking defendant no.1 to produce his passport, the defendant stated that the previous CS No.7734/2016 page 7 of 37 passport has been destroyed
18. It is further averred that the Defendant No.1 did not file the statements of his account before this Court to prove the fact that he paid the sale consideration amount of the suit property however, the defendant no.1 admitted in his cross examination that :
"I paid the sale consideration amount of the suit property from withdrawal of my account"
19. It has been averred that the Defendant No.1 did not produce a single witness to depose that the construction of the suit property was done by the Defendant No.1 however he admitted in his cross examination that "I am not in possession of any will regarding the construction of the house/ suit property"
20. It is further alleged that the construction was done by the Plaintiff himself and if for a moment, we presume that the Plaintiff was residing in the suit property with the permission of the Defendant No.1, in that case as alleged, the Plaintiff is entitled to get benefits under section 60 of Indian Easement Act.
21. It is also submitted by the plaintiff that the Defendants have no right to deny the ownership of the Plaintiff as per section 116 of Indian Evidence Act.
CS No.7734/2016 page 8 of 37
22. In the written submissions, the Plaintiff has submitted that he proved his title documents of the suit property by leading secondary evidence i.e. PW-3 and PW-5. Both the witness produce the documents in the name of the Plaintiff which were exhibited.
23. The relevant portion of chief PW-3 is as follows "index record /register maintained by Delhi Vidyut Board which as Per entry at Sr. No. 174/66 at point A reflect that electricity meter installed in the name of Hari Ram (Plaintiff) in year 1989 same is exhibited PW-3/1"
"it is correct that new electricity connection is provided only after submitting of necessary documents i.e. title documents"
"I have not brought the title documents which were submitted by Hari Ram (Plaintiff) on 11.09.1989 at the time of obtaining new electricity connection.
Vol. the same or not traceable"
"at the time of installation of new meter connection, physical inspection of site is done and possession of the application is also verified"
24. Its been further submitted in the written submissions that PW-5 i.e. Sh. Sarup Singh ' Assistant Section Officer, Delhi Ja1 Board also simultaneous deposed that at the time of applying for CS No.7734/2016 page 9 of 37 a new water connection, the applicant has to submit allotment letter, possession slip and title documents and Id proof.
25. The relevant portion of Cross Examination of PW-5 has been reproduced "at the time of applying a new water connection, the applicant has to submit allotment letter, possession slip and title documents and Id proof"
26. Further, as submitted in the written submissions, on asking to produce the said documents filed by the Plaintiff at the time of applying the water connection, the witness told that "No as the same are not traceable being very old documents"
27. Further, the plaintiff has submitted the billing summary in his name w.e.f. 1998 to 2011 and attested copy of the same was exhibited as Ex-PW-5/1 (8 pages)
28. As submitted in the written submissions, from the statements of both the said officials witnesses it is confirmed that the Plaintiff is the original owner and original applicant who obtained the electricity and water connection from the department after filing his title documents and all the relevant documents.
29. Thus, the title documents has been proved by secondary evidence of PW-3 and PW-5, as alleged.
CS No.7734/2016 page 10 of 37
30. It is also submitted that the exhibited documents i.e. PW- 3/2 and PW-5/2 have clearly mentioned the fact that the Defendant No.1 had transferred his name in the electricity and water connection by filing the forged and fabricated title documents in the place of Plaintiff name only after dispossessing him i.e. in the year 2012.
31. The PW-3 deposed in his cross examination that:
"at the time of installation of new meter connection, physical inspection of site is done and possession of the application is also verified . But in case of name change, only the documents in the name of applicant are seen."
32. The cross examination of DW-1 could not be concluded due to his sudden death and the testimony of the Defendants could not be proved as the defendants or his LRS did not produce any other witness in their support.
33. It is also submitted by the plaintiff that the Defendants had taken another plea in the Para No.11 of the Reply on Merits of the WS and mentioned that "However, it is submitted that the Plaintiff occasionally came to the suit property and stay with one tenant namely Vijay Kumar in his room as guest"
34. It is submitted by the plaintiff that, is important to mention CS No.7734/2016 page 11 of 37 here that the Defendants failed to conduct deposition of the said Vijay Kumar to prove their version before this Court.
35. It is also submitted by the plaintiff that it is important to mention here that if the Plaintiff is not owner of the suit property, why the Defendants did not object before BSES Electricity and Delhi Jal Board in granting the connection to Plaintiff from 1989 to 2012.
36. It is submitted by the plaintiff that the deposition of PW-2 i.e. Sh. Ram Bachan is also important to decide the present case.
37. Per Contra, the defendant by way of his LR's have submitted that initially the plaintiff filed a suit for recovery of possession and permanent injunction alongwith application under Order 39 Rules 1&2 CPC before Ld. Senior Civil Judge, Delhi without filing any site plan of the suit premises and the application under Order 39 Rules 1 &2 CPC was dismissed by Ms. Anu Aggarwal, Ld. Civil Judge, South District, Saket Courts, Delhi vide order dated 09.02.2012 and thereafter the plaintiff withdrew the said suit and filed it again before Ld. District Judge, South District, Saket Courts, Delhi and after completion of pleadings the following issues were framed:
CS No.7734/2016 page 12 of 37 a. Whether the plaintiff is entitled to a decree of possession of the suit property i.e. GF and SF of premises bearing No. 19/72, Dakshinpuri, New Delhi, shown in red colour in the site plan? OPP b. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP c. Whether the suit is bad in law for misjoinder of parties? OPD d. Relief.
No other issue is raised or pressed.
38. It is submitted by the defendants in their written submissions that on 22.04.2013, admission and denial documents was completed and the Ld. Counsel for the parties stated that there are no documents which require admission and denial.
39. From the pleading of the parties issues were framed as mentioned above.
40. On 23.08.2013 an application moved on behalf of the defendants under Order 14 Rule 5 R/W Section 151 CPC to frame an additional issue.
"Whether the suit is properly valued or not and proper court fees have been paid on the plaint or not? OPD".
CS No.7734/2016 page 13 of 37
41. Said application of the defendants was allowed, disposed off and above mentioned additional issue framed by the Ld. Predecessor Court.
42. It has been submitted by the defendants that application under Order 39 Rule 1&2 was dismissed by this Court vide its order dated 24.02.2013.
43. It has also been submitted that thereafter plaintiff filed an application under Order 6 rule 17 R/W Section 151 CPC and same was allowed by the Ld. Predecessor Court of this Court vide its order dated 20.12.2015 subject to cost of Rs. 5,000/-.
44. The plaintiff examined himself as PWl and Shri Ram Bachan PW2, Shri Sajid Khan PW3, Shri H.C. Subhash Chand PW4 on his behalf and defendants examined himself as DWI and relevant documents were exhibited and duly cross examined by the respective counsels for the parties.
45. It has been submitted that PW 1 is the plaintiff in the instant suit and he filed his evidence by way of affidavit and tender his affidavit same was Ex.PWl/X bearing the signature of plaintiff at Point A&B and he relied upon documents i.e. application and agreement form and verification notice are Ex.PWl/A (colly), driving licence is Ex.PWl/B (OSR), water bill is Ex.PWl/C, copy of ration card is Ex.PWl/D (OSR), site plan is Ex.PWl/E, as well as copy of GPA is Mark-A, copy of affidavit is CS No.7734/2016 page 14 of 37 Mark-B, copy of agreement to sell is Mark-C, copy of receipt is Mark-D, copy of possession slip is Mark-E, copy of complaint dated 16.08.2011 is Mark F. Copy of complaint dated 17.08.20211 is Mark- G , copy of electricity bill dated 17.11.2011 is Mark-H, copy of election card is Mark-I. These documents were exhibited by PW 1 in his affidavit and aforementioned documents were de-exhibited and marked as above. Above said title documents are not in possession of the plaintiff. The plaintiff stated that said documents were stolen. In his cross examination, he himself admitted that after purchasing the property as alleged, the family members of the plaintiff never resided in the property in question at any point of time. Site plan filed by the plaintiff is also different from the actual site. On the other hand defendants and his family members were residing since the purchase of the property and after constructed the property as the children of the defendant were born out at the suit premises.
46. As stated in the written submissions, It is pertinent to mention here in the plaint at para No. 22, the plaintiff valued the suit property at Rs. 4,90,000/- on which the court fee has been filed at Rs. 4,90,000/- and in the cross examination the plaintiff admitted that the property, which constructed upto two and half storey, the market price of the suit property is about Rs. 30 to 32 lakhs.
CS No.7734/2016 page 15 of 37
47. Hence, as submitted, the plaintiff has not valued the suit property as per market rate at the time of filing the suit. The PW 1 is confronted with the documents i.e. his affidavit Mark PWl/Dl and asked about the consents and signature on it and after seeking the document and signature the witness denies that Mark PWl/Dl marks his signature and the contents of the same. It is pertinent to mention here that affidavit marked PWl/Dl was written by PWl and signed himself, but in the witness box he denied the contents and his signature, which clearly shows the malafide intention of the plaintiff in order to grab the property of the defendant. In this manner, the plaintiff filed a criminal complaint against the defendant and his son and defendant also filed a criminal complaint against the plaintiff and PW2 Ram Bachan, as PW2 Ram Bachan is the close friend of PW 1 and at the instance of PW 1 he entered in the witness box to support the version of PWl.
48. PW3, PW4 and PW5 are the office bearer and they did not disclose about the present case and they also cannot tell about the documents and did not support the version of plaintiff.
49. That the plaintiff filed an application under Order 14 Rule 5 R/W Section 151 CPC and praying for additional issues. The same was allowed on 04.03.2024.
50. It has been submitted that the plaintiff is the real younger CS No.7734/2016 page 16 of 37 brother of the defendant No. 1 (now deceased Hari Lal) and the defendant No. 1 was working in Iraq and used to send money to the plaintiff and being a brother to look after the family of defendant in absence of the defendant No. 1. All the expenses of grocery and water, electricity bill was managed by the plaintiff in the absence of the defendant as the defendant regularly sent money to the plaintiff and the plaintiff used to manage the same, as both are residing in joint family in their native village and plaintiff was residing with one Vijay Kumar on the terrace; who is the tenant of defendant.
51. Defendants have submitted that they purchased the suit property from one Ranjeet Dass S/o Shri Ashwani Dass in presence of the witnesses on 26.04.1984 and at the time of purchase the said plot was in the form of Malba and total sale consideration value was Rs. 13,000/- and the defendants constructed the property from their own hard earned money. All education certificate and birth certificate of the children of the defendant are already exhibited.
52. Electricity bills, water bills are in the name of defendant No. 1, all the bills are paid bills and the bills filed by the plaintiff was not paid bills. The title deed of the suit property is also not in possession of the plaintiff.
CS No.7734/2016 page 17 of 37 OBSERVATIONS:
53. From the facts of the matter, it is evident that the dispute primarily is a family dispute wherein the brothers, and their LR's are disputing the ownership, possession and title qua each other.
54. The Hon'ble Supreme Court of India in CAUSE TITLE:
DAMODHAR NARAYAN SAWALE (D) THROUGH LRS.
VS. SHRI TEJRAO BAJIRAO MHASKE AND ORS. (2023 SCC ONLINE SC 566), HAS HELD THAT:
"While observing that the need to take into consideration the surrounding circumstances and the conduct of parties in deciding the passing of title would arise only if the recitals in the document are indecisive and ambiguous, the Supreme Court said that the High Court has committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial Court. A Two Judge Bench of Justice M.R. Shah and Justice C.T. Ravikumar clarified that "where a deed of sale had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold".
CS No.7734/2016 page 18 of 37 Going by the background of the case, as per the plaint, the first two Original Defendants sold the suit field in favour of the Plaintiff as per registered sale deed. Soon on its execution the Plaintiff was put in possession but the second defendant started disturbing his possession. Suit was then filed in 1979. In view of the registered sale deed, he obtained absolute title over the suit land and in such circumstances, the second defendant who sold the same for discharging debts and family got no right or reason to disturb his peaceful possession. The total sale consideration of ten thousand was given to defendant for the said entire extent of over 3 acres as the first defendant obtained title over 2 acres out of the total extent from the second defendant as per registered sale deed and the second defendant remained as the owner in possession of the balance one acre. It was his case that the second defendant had utilised the sale consideration passed on to him for different purposes, including to pay his debts. Thereafter, for the non-compliance with the order of the Chamber Judge, the SLP stood dismissed qua sixth respondent.
When the matter reached the Trial Court, it was concluded that the plaintiff had not purchased the suit field as claimed and the sale deed was a sham document which was executed only as a security for a money lending transaction and consequently, the original suit was dismissed with costs. The Regular Civil Appeal, filed by the unsuccessful plaintiff before the First Appellate CS No.7734/2016 page 19 of 37 Court was allowed. After considering the submissions and referring to the Fragmentation Act, the Apex Court observed that it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof. The Apex Court further observed that the decision of the High Court on the validity of the sale transaction covered under the sale deed executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, were unsustainable.
"The very object of the mandate for registration of transfer of an immovable property worth more than Rs. 100/- under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary", added the Court. While affirming the fact that there can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor, the Apex Court elucidated that if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting non-passing of CS No.7734/2016 page 20 of 37 consideration to prove the said asserted fact. "Certainly, parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose", added the Court. The Bench went on to highlight that in view of the factum of registration of the sale deed and admission of its execution and the recording of payment of consideration thereon, the second respondent was not justified in raising grievance, initially, even against the sale of the extent of one acre. Thus, noticing that by virtue of Section 54 of the Transfer of Property Act and Section 17 of the Registration Act and since the immovable property was worth more than Rs 100, the deed was reduced in writing and registered, the Bench concluded that the intention of the parties was also reflected specifically in the deed and at the same time, nothing reflected a contra-intention not to pass the title and ownership even impliedly therein."
"10. Even though the powers under Article 136 of the Constitution of India must be exercised sparingly, yet there is absolutely nothing in the said Article which prohibits the Supreme Court from reversing even concurrent findings of the fact by courts below, if it is of the opinion on the basis of the evidence on record, that affirming the findings of the courts below would result in a grave miscarriage of justice. It was so held by this Court in Charanjit & Ors. v. State of Punjab & CS No.7734/2016 page 21 of 37 Anr. (2013) 11 SCC 163 [LQ/SC/2013/698] as also in Adambai Sulemanbhai Ajmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 [LQ/SC/2014/586 ;] . Therefore, if a relevant material legally brought on record and the question of law arising out of its existence were not considered by the High Court, despite its due consideration by the First Appellate Court, while reversing the judgment founded on such consideration this Court has necessarily to consider the same in invocation of the power under Article 136. While considering this appeal, in that view of the matter, it is only proper and profitable to refer to the following crucial and relevant facts obtained in the case:(i) Exhibit 128 is a registered sale deed.(ii) Its execution is admitted by both the original defendant. (True that the second defendant (first respondent herein) contends that it was executed as a collateral security at the time of a money lending transaction).(iii) The second defendant (first respondent herein) has also admitted execution of registered sale deed in favour of defendant No. 1 (earlier in point of time than Exhibit
128) in respect of 2 acres and 20 guntas. (Here also, the second defendant claimed that the sale deed was executed as a collateral security for the money borrowed and therefore repayable to him along with the quantified fixed interest thereon).11. We have already referred to the issues/points formulated by the courts below and the findings returned by the CS No.7734/2016 page 22 of 37 respective courts which formed the basis for their respective judgments. Bearing in mind the decisions referred supra and also the relevant facts available, as noted above and also the relevant provisions under the relevant enactments, to be referred to hereafter, we may proceed to consider this appeal.
12. As noted earlier, after reversing the judgment and decree of the First Appellate Court, the High Court restored the decree of the trial Court. In this context, it is apt to note the re-framed substantial question of law No. 3 by the High Court, extracted above, that carries the query whether, while reversing the findings recorded by the trial Court, the lower appellate Court had ignored the findings recorded by it on the material facts in the light of undisputed factual position. We may hasten to add here that a bare perusal of the impugned judgment would reveal that after framing such a question of law the High Court did the very seemingly attributed act inasmuch as it did not consider the legal impact and effect of Ext. 128, registered sale deed, which was taken into consideration by the First Appellate Court, while reversing the judgment and decree of the First Appellate Court.13. A scanning of the trial Court judgment would reveal indisputably that despite the admission of the execution and registration of Exhibit 128 sale deed dated 21.04.1979 by the second defendant in favour of the plaintiff and also that of the sale deed dated 04.07.1978 by him to the CS No.7734/2016 page 23 of 37 first defendant, it had failed to consider the legal effect and impact of execution and registration of such a sale deed in view of the provisions under the Transfer of Property Act, 1882, as also the Registration Act, 1908, and sans such consideration accepted the second defendant contention that it is a sham document. Paragraph 7 of the judgment of the trial Court would reveal that despite the admission of execution and registration of Ext. 128 sale deed dated 21.04.1979 by the second defendant as also by the first defendant, the trial Court held that the burden of proving the factum of execution of sale deed and passing of the consideration amount was on the plaintiff. The trial Court had also failed to consider the relevance and application of Section 92 of the Indian Evidence Act, 1872 while appreciating the oral evidence against Ext. 128. Evidently, the trial Court accepted the case of the second defendant that the said sale deed was one executed as a collateral security to a money lending transaction and that it was never intended to be acted upon. The trial Court has also held the sale deed virtually invalid by accepting the contention that the transaction violated the provision under Section 8 of the Fragmentation Act and in that regard the sale deed dated 04.07.1978 executed between defendant Nos. 1 and 2 was held as one creating a fragment and therefore, violating the prohibition. This was done without looking into the question as CS No.7734/2016 page 24 of 37 to its jurisdiction to entertain and adjudicate upon such a plea in view of the statutory bar of jurisdiction under Section 36A of the Fragmentation Act. In that regard it is noteworthy that nothing was specifically mentioned in paragraph 14 or anywhere else in the written statement filed by the second defendant regarding the violation of the provisions under the Fragmentation Act and, in fact, only vague reference was made on that aspect in paragraph 16 reproduced as under: -16. ...In event, according to provision of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff not entitled to any relief.14. In view of the aforementioned facts as also taking note of the contentions raised on behalf of the contesting respondents, in support of the impugned judgment, that the First Appellate Court failed to consider at all the voidness of the sale transaction of 2 acres and 20 guntas between original defendant 1 and 2, its impact on the sale of consequentially created fragmentation of one acre by the second defendant and the whole sale transaction effected under Exhibit 128 sale deed by operation of the Fragmentation Act and further that the said aspect was rightly considered by the High Court, we think it only proper to deal with that matter appropriately.15. At the outset, we may say that there is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and CS No.7734/2016 page 25 of 37 also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word transfer is not defined under the Fragmentation Act though the expression land has been defined thereunder. As per Section 2 (5) of the Fragmentation Act, the term land means, agricultural land whether alienated or unalienated. In the said circumstances, to know the meaning of the words transfer of any land used in Section 9 (1) of the Fragmentation Act, one may have to see the definition of transfer of property under Section 5 of the Transfer of Property Act, 1882, (hereinafter referred to as, the TP Act), which reads thus:-5. Transfer of property defined. --In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or it himself] and one or more other living persons; and to transfer property is to perform such act.[in this section living person includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]16. In the contextual situation it is also relevant to refer to the definition CS No.7734/2016 page 26 of 37 of sale given under Section 54 of the TP Act, which reads thus:-54. Sale defined.--Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.17. The term transfer is a word in a broader sense and the word sale is a specific word. Sale, going by the definition under T.P. Act, presupposes transfer from one person to another of the right in property and in other words, in sale, the ownership of the property is transferred. A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/- shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned. We are not oblivious of the fact the mere registration of a document is no proof of its execution. We will deal with this aspect a little later. It will not be inappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:-Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof;18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified local area, but it is only aimed at CS No.7734/2016 page 27 of 37 preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof.19. In the context of the above mentioned rival pleadings, contentions and the position revealed from the facts and the provisions, the question to be considered is whether the second defendant herein had made out any case for attracting the provisions of the Fragmentation Act /or in other words, whether the trial Court was right in applying the provisions under the said Act and the High Court was legally correct in restoring the decree of the trial Court after reversing the judgment and decree of the First Appellate Court, in view of the mutually annihilative pleas taken up by the second defendant viz., the first respondent herein and accepted by the trial Court and the High Court. Contextually, it is apposite to state that though in a suit a defendant is entitled to raise alternative inconsistent plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment.." AIR 2023 SC 3319""
55. The Hon'ble Supreme Court held that a registered sale deed is a final and conclusive document conveying the title of the property when executed with due compliance.
CS No.7734/2016 page 28 of 37
56. While answering the question, Apex Court referred to Section 54 of the Transfer of Property Act, 1882 (TOPA) along with Section 17 of the Indian Registration Act, 1908; which conclusively mandates for registration of sale deed of an immovable property for its enforcement.
57. Such registration along with consideration for sale, validates the transfer of property with all its rights and title that the owner possessed. However, Apex court further noted that the need to refer to the circumstances and the conduct giving rise to the deed must come only when the document passing title is ambiguous or indecisive. It further noted that when execution of Sale Deed is challenged then registration itself can not be held as proof of execution and compliance under section 67 of Evidence Act is necessary.
58. It is evident that neither of the defendant, nor the plaintiff has registered sale deeds in their Favor. Furthermore, the parties to the present litigation our claiming title over the subject property by way of GPA, Will, which are not even registered, and are only notarized. Further, the chain of title documents/ documents through which either of the parties may claim exclusive ownership over the other has not been exhibited before this Court.
59. It is also imperative to mention that neither of the parties CS No.7734/2016 page 29 of 37 have led evidence as to how the allottee sold the subject property in favor of either of the parties and/or how the sale consideration amount was paid.
60. Evidently, the plaintiff has exhibited a few documents, which were de-exhibited by the Ld. Predecessor Court.
61. It is an admitted fact that the plaintiff was living at the subject property till the year 2011. It has been stated by the defendants in their pleadings and submissions, that the plaintiff was living in the subject property while the defendant no.1 now deceased was in Iraq.
62. It has also been submitted and admitted by the parties herein that the relation between the plaintiff and defendant no.1 was cordial up until the year 2011, when the plaintiff was dispossessed from the subject property.
63. The Apex Court in the above mentioned case, read provisions of TOPA 1882 along with the provisions of Registration Act and further emphasized that a Sale Deed, when registered and executed in due compliance, shall confer a valid and legitimate title to the receiver.
64. In Suraj Lamp & Industries (P) Ltd. v. State of Haryana (Suraj Lamp I) (2009) 7 SCC 363, a two-Judge Bench of the Supreme Court declared "power of attorney" sales to be an CS No.7734/2016 page 30 of 37 invalid mode of property transfer.
65. A three-Judge Bench issued a clarificatory judgment substantiating this point in 2011 in Suraj Lamp & Industries (P) Ltd. v. State of Haryana (2012) 1 SCC 656 (Suraj Lamp II), the Court conclusively stated that the parties could not effectuate a valid sale by executing a power of attorney, nor by entering into a sale agreement (SA) which was followed by a power of attorney (GPA) and will - a transaction termed as SA/GPA/will transfer.
DECISION:
66. The Court has considered the various, facts, circumstances and the pleading of the parties. The parties have chosen neither to admit and/or to deny the documents as filed before the Court.
67. It is also observed that the bills details pertaining to utility charges, etc bearing the energization dated 1989, is in the name of the plaintiff.
68. It is also found that the public witnesses have lead evidence wherein the certified details, bills/ details pertaining to Delhi Jal Board services ranging from 1998- 2011/12 also bear the name of the plaintiff with reference to the subject property.
69. Neither of the parties have led satisfactory evidence which could conclusively establish their better title over the other. It is CS No.7734/2016 page 31 of 37 also observed that the parties herein have also not been able to establish that either of them was in exclusive possession of the subject property prior to May, 2011.
70. In light of the above mentioned, this Court is impressed upon to allow the present suit in favor of the plaintiff and against the defendants through his LR's limited to the prayer possession of the subject property with respect to the ground floor and second floor only, by way of restitution under the inherent powers of the Civil Court, to the position/ situation as was existing prior to the plaintiff being dispossessed.
71. Further, the defendants, his LR's agents etc herein are restrained from creating any third party interests qua the ground floor and second floor of the subject property.
72. With respect to the prayer seeking declaration, the same is disallowed as neither of the parties are in possession of the title documents, as required and mandated under the law, nor have they been established their respective titles.
73. There is a possibility that the subject property may be under valued/incorrectly valued. The Court is bound by duty and statute to adjudicate upon a matter effectively, subject to fulfillment of requisite/ ad-valorem Court fee.
74. Further, for the purpose of granting the relief of CS No.7734/2016 page 32 of 37 possession, as claimed by the plaintiff, the Court by way of the present order is inclined to appoint a Court Commissioner to inspect the suit property, see the status of affairs, construction and determine the condition of the suit property along with the situation on ground, nature of occupancy, nature and details of the occupants, the same directions not being exhaustive, for the said purpose, and to submit a report before this Court, along with ascertaining the requisite/ ad-valorem Court fee as is to be filed before the Court.
75. For the same, Adv Yashna Pahwa D/4302/2016, having address and contact details as Ch. No 824, C/o Adv Dhruv Alagh, Lawyers Block, Saket Court New Delhi-110017, 9953874730 [email protected], is appointed as the Local Commissioner.
76. The Fees of the Local Commissioner is fixed at Rs 50,000/-.
77. Upon filing of the report by Local Commissioner and deficit court fees, decree sheet be prepared accordingly as per law.
78. Further, the concerned parties are directed to assist the Ld. Local Commissioner in the process of execution of the Court Commission. The Ld. Local Commissioner is at liberty to seek the assistance any person deemed fit for the effective execution CS No.7734/2016 page 33 of 37 of the proceedings, including a Draughtsman and/or an architect, concerned SDM/ MCD officials, as the case maybe, for which the expenses shall be paid by the plaintiff, if any.
79. The Local Commissioner shall be empowered to enter the subject property in order to inspect and ascertain the nature of the subject property, its present existence in order to assist the Court.
Further, the Local Commissioner is empowered to break open the locks, and or remove all and any hindrances, if any, for the purpose of execution of the orders of the Court.
80. The plaintiff is directed to contact the Ld. Local Commissioner and to remunerate her before the commencement of commission proceedings by paying his fees within a period of seven (7) days from today.
81. It is evident that the plaintiff is not in possession of the subject property, and thus, the court fee has to be calculated on the market value of the subject property (Ground floor & Second Floor), in accordance with the Court Fee Act. The Ld. Local Commissioner is also directed to assist the Court with the present issue at hand.
82. The plaintiff is directed to file a valuation report based on the present market value of the property (GF & SF), and accordingly file the requisite court fee as per the statute within a period of four (4) weeks from the date of the order.
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83. The relief(s), as granted, shall be subject to filing of the requisite Court fees, as stated in the preceding paragraphs.
84. Costs of Litigation of Rs 25,000/- are being granted in favour of the plaintiff and against the defendant.
85. The Ld. Local Commissioner is directed to file his/her report within a period of twenty one (21) days from today in accordance with the directions of the Court, and the law of the land.
86. Further, in several judgments as pronounced by The Hon'ble High Court of Delhi, it has been held as follows:
Louis Vuitton Malletier Petitioner vs. Mr. Omi & Anr. S CCP(O) 10/2018 in CS(COMM) 291/2018 Delhi High Court (07 Aug 2018)
22. In the opinion of this Court, a Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site.
[See: Autodesk Inc. & Anr. v. Arup Das & Ors, 2013 SCC OnLine Del 4225 and Anil K. Aggarwal V. Union of India, 2014 SCC OnLine Del 2292].
87. Cited in: Anil K. Aggarwal vs. Union Of India & Anr CS No.7734/2016 page 35 of 37 2014 SCC OnLine Del 2292 Delhi High Court (05 Nov 2014)
12. The person to whom commission to record evidence is issued acts as an arm/agent of the Court which has issued the commission. We find a Single Judge of this Court in Autodesk INC v. Arup Das 205 (2013) DLT 665 to have, while holding so, also observed that the Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out the precincts of his Court and a Local Commissioner is appointed to act as the eyes and ears of the Court.
88. In Light of the above stated, the Ld. Court Commissioner is directed to complete the proceedings of the commission in an expeditious manner, whilst acting as an extension of the Court.
89. The SHO of the concerned police station is directed to provide police assistance and protection to the Ld. Local Commissioner for effective execution of proceedings of the Commission. The concerned SHO is hereby directed to depute two (2) police constables, male & female, for the protection and assistance of the Ld. Local Commissioner on the day(s) of the execution of the proceedings.
90. Ordered accordingly.
91. Decree sheet be prepared accordingly, as directed above, as per law.
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92. Let separate miscellaneous file be prepared and registered for compliance.
93. Suit stands disposed off and the main file be tagged with miscellaneous file.
94. Copy of the judgment be given Dasti, as prayed.
Announced in the open court on 06.05.2024.
(Sunil Beniwal)
Additional District Judge06(South),
Saket Courts, New Delhi
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