Delhi District Court
Rajinder Prasad vs Smt. Anita on 24 April, 2015
In The Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi
RCA No.62/2008
Unique Case ID No.02402C0 21589 2008
In the matter of :
Rajinder Prasad
S/o Sh. Mani Ram
R/o House No.1/123, (Old No.1/122)
Trilok Puri, Delhi110091 .....Appellant/Plaintiff
Versus
1. Smt. Anita
W/o Sh. Dharmender
2. Sh. Dharmender
Both residents of House No.13/199,
Kalyanpuri, Delhi110091 .....Respondents/Defendants
Appeal instituted on : 19.03.2008
Arguments heard on : 06.04.2015
Judgment Announced on : 24.04.2015
JUDGMENT
1. This is an appeal directed against the impugned judgment and decree dated 21.02.2008 passed by the court of Shri M.P.Singh, Ld. Civil Judge, KKD Courts, Delhi, vide which, the Ld. Trial Court, had dismissed the suit of the plaintiff.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff has filed the suit for RCA No.62/2008 Page No.1 of 17 permanent injunction, mandatory injunction and declaration in the Ld. Trial Court, stating therein that plaintiff is lawful allottee of the suit property bearing No.1/123, Trilok Puri, Delhi91, which was allotted to him by Delhi Development Authority vide possession slip bearing No.422 dated 31.10.1976 and at the time of allotment, suit property was bearing No.1/22, Trilok Puri, Delhi91 and same is three storeyed and was constructed by the plaintiff from his own funds. The plaintiff is in actual physical possession, use and occupation of the suit property and is residing therein with his family members from the day of its allotment i.e. 31.01.1976, shown red in colour in site plan. Presently, plaintiff and his family members including his wife, sons, daughters and daughter in law have been residing in the suit property. The plaintiff has let out ground floor to his tenant Raju, who is lawful allottee and owner of the entire suit property. The plaintiff is having a ration card, caste certificate dated 31.07.1995 issued by Deputy Commissioner, Delhi, water and electricity connections, in his favour, wherein suit property is shown his residence. Several correspondence in the name of plaintiff and his family members show suit property as their residential address. The plaintiff has every right, title or interest in the suit property, being lawful allottee. As per terms and conditions of the allotment, the allottee is not entitled to sell or RCA No.62/2008 Page No.2 of 17 transfer the suit property to any third person, though, the allottee has every right, title or interest to remain in possession of the same and to construct the same.
3. In the month of September, 2001, the plaintiff was in need of some money and defendants are known to him. The plaintiff contacted the defendants and told them about his need of money and requested them to pay him a friendly loan of Rs.10000/. Defendants assured him to pay a friendly loan of Rs.10000/ and asked to bring the allotment letter of the suit property and four photographs, as same were necessary for preparation of the loan document. Accordingly, plaintiff and his son Prem Pal went to the house of the defendants and handed over allotment slip of the suit property and photographs to them. The defendants placed 20 papers before the plaintiff and his son Prem Pal, asking them to put their signatures and thumb impression on the same. Some of those papers were already typed, some were blank papers and revenue stamps were affixed on some blank papers. The plaintiff asked from defendants about obtaining their signatures and thumb impressions on those documents and on replying to the same, the defendants told that same is necessary for taking friendly loan. Defendants did not read the contents of the typed papers, although, plaintiff requested to read the same, but, defendants refused by saying that nothing is RCA No.62/2008 Page No.3 of 17 typed in said papers except the terms of friendly loan. Defendants assured that they would destroy the said loan documents and return the possession slip of suit property to the plaintiff after returning of loan by the plaintiff to the defendants. Defendants asked plaintiff and son to accompany the office of SubRegistrar, Seelampur, Delhi and asked the plaintiff to reply in positive manner, if officer asked about receiving of money from defendants. Accordingly, plaintiff and his son accompanied the defendants and reached at the office of Sub Registrar and did all necessary acts, as instructed and directed and after coming back from there, defendants had paid an amount of Rs.10000/ to the plaintiff at their residence, as friendly loan. After obtaining the friendly loan of Rs.10000/, defendants started collecting monthly interest @ Rs.200/. Defendants never issued any receipt to the plaintiff despite several requests and reminders. In the month of July, 2002 the plaintiff was again in need of Rs.10000/, so, he contacted defendants and requested him for granting friendly loan of Rs. 10000/. Defendants again asked him to bring his photographs and to come on 10.07.2002. On 10.07.2002 defendants had paid an amount of Rs.10000/ as friendly loan to the plaintiff at a monthly interest of 2% after obtaining signatures and thumb impressions of the plaintiff on 20 papers and plaintiff was again RCA No.62/2008 Page No.4 of 17 taken to the office of SubRegistrar and again above said entire exercise was repeated. Defendants continuously visited to the house of the plaintiff and collecting interest @ Rs.400/ per month. On 07.07.2003 plaintiff went to the house of the defendants for returning the amount of Rs.20000/ and for taking back and destruction of the loan documents. But, defendant no.1 refused to return the property papers and to destroy the loan documents. Plaintiff became surprised by seeing the attitude of defendant no.1 while this conversation was going on, defendant no.2 also arrived and supported the stand of defendant no.1. Defendants asked the plaintiff to hand over the vacant possession of the suit property to them within a period of three days. Defendants assert that they had become the owners of the suit property, which is denied by the plaintiff. Plaintiff had reported the matter to the police but no action was taken by the police, as dispute was of civil nature and prayed for passing a decree of permanent injunction restraining the defendants, their representatives, heirs, servants, agents, friends, relatives, supporters and associate etc. from dispossessing plaintiff forcibly from suit property, from entering in suit property and from interfering in any way whatsoever in peaceful possession, occupation and use of plaintiff in suit property, passing a decree of mandatory injunction thereby issuing directions to the RCA No.62/2008 Page No.5 of 17 defendants to return the documents of suit property to the plaintiff and passing a decree of declaration that defendants have no concern with suit property with cost of the suit, in favour of plaintiff and against the defendants.
4. The ld. trial court had issued the summons to the defendants and on completion of the service of the defendants, the defendants had appeared before the ld. Trial court and filed joint written statement and contested the case on various grounds that there is no cause of action to file the suit, there is no prima facie case in favour of plaintiff, balance of convenience does not lie in favour of plaintiff, plaintiff has not come to the court with clean hands, as he has suppressed the material facts. It is averred that plaintiff had already sold the suit property vide registered agreement to sell, GPA, affidavits and receipts dated 13.09.2001 for an amount of Rs.230000/, whereas, on the receipt, Rs. 130000/ is mentioned, at the request of plaintiff and after execution of aforesaid documents, plaintiff had asked to vacate the premises for sometime and agreed to live as tenant for 11 months at first and second floors @ Rs.300/ per floor and executed lease deed dated 13.09.2001, which was duly attested by Notary Public. Plaintiff stopped paying rent on one pretext or other and promised to vacate the suit property. After sometime, it came to the knowledge of the defendants that suit RCA No.62/2008 Page No.6 of 17 property has already been sold to one Sanjay Kumar through GPA, WILL, Agreement to sell, affidavits and receipts dated 18.09.2000, which were duly registered with the office of Sub Registrar, Delhi. Plaintiff got executed a rent agreement dated 18.09.2000 with Sanjay Kumar for 11 months on the same date @ Rs.600/ per month for two floors and the sole motive to defraud him and also retained the possession mischievously and due to intervention of the respectable persons of the locality, the matter was resolved between the defendants, Sh. Sanjay Kumar and plaintiff and it was agreed that plaintiff will return amount to Sh. Sanjay Kumar with extra amount of Rs.20000/, on this, Sh. Sanjay Kumar agreed to return all the documents. Accordingly, defendants had to pay a sum of Rs.250000/ to the plaintiff and fresh power of attorney was executed in favour of the defendants by the plaintiff on 10.07.2002 by executing receipt of Rs.150000/ only and the possession was kept by the plaintiff as a tenant. Plaintiff agreed for giving them possession, as soon as possible, without executing any documents. It is denied that plaintiff is owner of suit property and Sh. Raju Gupta is his tenant on the ground floor. Defendants have denied that transaction between the parties was of loan transaction. It is averred that parties had not appeared before the office of Sub Registrar for advancing the loan, but, they had appeared with RCA No.62/2008 Page No.7 of 17 the knowledge that necessary documents regarding transfer of the suit property would be executed. After denying other averments, they have sought dismissal of the suit.
5. The plaintiff has filed the replication and denied the averments made in the written statement and reiterated the contents of his plaint.
6. From the pleadings of the parties, vide order dated 29.01.2004, the ld. trial court was pleased to frame the following issues:
(i) Whether the plaintiff is lawful owner of the entire suit property as alleged in the plaint ? OPP
(ii) Whether the plaintiff is entitled to a decree of declaration as sought in the plaint ? OPP
(iii) Whether the plaintiff is entitled to a decree of mandatory injunction as sought in the plaint ? OPP
(iv) Whether the plaintiff is entitled to a decree of permanent injunction as sought in the plaint ? OPP
(v) Relief.
7. In order to prove his case, the plaintiff has examined himself as PW1 vide his affidavit Ex.PW1/A. He has relied upon the documents viz. Site plan Ex.PW1/1, copy of ration card Ex.PW1/2(OSR), water bill dated 25.08.95 Ex.PW1/4, possession slip dated 31.01.1976 Ex.PW1/9, copy of police report Ex.PW1/10, first page of passbook Ex.PW1/11(OSR), photocopy of the caste certificate mark A, copy of electricity and water bills mark B to E. He has deposed that there is no RCA No.62/2008 Page No.8 of 17 documents on record which are mentioned in his affidavit as Ex.PW1/3 and Ex.PW1/5 to PW1/8. He has reiterated the contents of the plaint in his affidavit. He was subjected to cross examine by the ld. Counsel for the defendant.
8. The plaintiff has also examined Sh. Rajesh Singh, LDC from Slum and JJ Department, MCD, as PW2, who has proved the possession slip dated 25.03.76 Ex.PW2/1 and deposed that Sh. Rajender is allottee of plot No.1/122, Trilokpuri, Delhi, on the basis of license @ Rs.8/ per month and he has no right to sell or transfer the property, as he is not entitled for the same and also deposed that DDA is owner.
9. The plaintiff has also examined ASI Sushila from the office of DCP, Vigilance, Asif Ali Road, Delhi, as PW3, who has proved complaint dated 01.10.2003 Ex.PW3/1 and letter dated 16.04.2004 Ex.PW3/2.
10. The plaintiff has also examined Sh. Raghunath Singh, Record Clerk from Lal Bahadur Shastri Hospital, Khichripur, Delhi, as PW4, who has proved MLC No.6560/03 Ex.PW4/1.
11. The plaintiff has also examined Sh. D R Joshi, UDC from the office of Lt. Governor, as PW5, who has proved diary register Ex.PW5/1.
12. The plaintiff has also examined Ct. Ravinder from PS Kalyanpuri, as PW6, who has proved NCR No.270/99 RCA No.62/2008 Page No.9 of 17 Ex.PW6/1, copy of local complaint register showing complaint of Smt. Shakuntala at S. No.961, as Ex.PW6/2 and of complaint of Sh. Rajender at S. No.987 Ex.PW6/3. Plaintiff has not examined any other witness.
13. Whereas, the defendant no.1 has examined herself as DW1 vide his affidavit Ex.DW1/A. She has reiterated the contents of the Written statement in her affidavit. She was subjected to cross examine by the ld. Counsel for the plaintiff.
14. Defendants have also examined Sh. Sohan Lal, as DW2, vide his affidavit Ex.DW2/1. He was also subjected to cross examine by the ld. Counsel for the plaintiff.
15. Defendants have also examined Sh. Sanjay Kumar, as DW3 vide his affidavit Ex.DW3/A. He was also subjected to cross examine by the ld. Counsel for the plaintiff.
16. Defendants have also examined Sh. Safya, as DW4 vide his affidavit Ex.DW4/A. He was also subjected to cross examine by the ld. Counsel for the plaintiff. Defendants have not examined any other witness.
17. The ld. trial court vide its impugned judgment and decree dated 21.02.2008 had dismissed the suit of the plaintiff.
18. Feeling aggrieved with the impugned judgment and decree under appeal, the appellant/plaintiff has filed the present appeal.
19. The notice of the appeal was issued to the respondents, who RCA No.62/2008 Page No.10 of 17 have put their appearance through their counsel.
20. The record of the trial court is also requestioned and perused.
21. I have heard the ld. counsels for the parties and perused the record.
22. The appellant had filed the suit for permanent injunction, mandatory injunction and declaration. It was prayed that the defendants / respondents be restrained from dispossessing the plaintiff forcibly from the suit property and/or from entering into the suit property and/or entering into the peaceful possession of the appellant in the same. It was further prayed that by way of passing mandatory injunction, defendants be directed to return the documents of the suit property, on which, the signatures of the appellant were taken. It was further prayed that a decree of declaration be also passed to the extent that defendants have no concern whatsoever with the suit property nor have any right, title or interest in the same and/or defendants are not owners of the suit property on the basis of said documents.
23. On the basis of the pleadings, besides framing issues on the reliefs as prayed by the appellant / plaintiff, one more issue was framed as to whether the appellant is the owner of the suit property. This issue was decided against the appellant. The suit RCA No.62/2008 Page No.11 of 17 property belongs to DDA and as per evidence brought on record by PW2 Rajender Singh, LDC from the office of Slum & JJ, MCD, the plot of the suit property was allotted to the appellant and he has further deposed that the allottee has no right to sell or transfer the same, because, he is not entitled for the same. Ld. Trial court has relied upon this evidence, which is also otherwise not denied, as appellant himself has claimed before the ld. Trial court that the suit plot was allotted to the appellant vide possession slip No.422 dated 31.10.1976. In view of the same, there is no ground to interfere in the findings of issue no. 1, as given by the ld. Trial court and there is no irregularity or infirmity in the same.
24. The ld. Trial court decided issues no.2,3&4 collectively and ultimately dismissed the suit. In the appeal, it is submitted that after allotment of the plot in question, the appellant could not sell the suit property, which the ld. Trial court has over looked. It is further submitted that the signatures of the appellant were obtained on the documents of sale under the garb of loan documents. It is further submitted that if the property had been sold by the appellant to the respondents, then, the possession must have been taken over by the respondents. It is further contended that ld. Trial court over looked the financial position of the respondents and there is no registered deed in favour of RCA No.62/2008 Page No.12 of 17 the respondents, so, the findings of the ld. Trial court are not sustainable in any manner.
25. According to the documents placed on record, firstly, vide Ex.PW1/D10, the appellant had sold the suit property on 18.09.2000 by way of executing agreement to sell, receipt, affidavit, GPA, rent agreement etc. It was sold against a sum of Rs.50000/. The remaining documents are Ex.PW1/D11, 1/D12, 1/D13 & 1/D14. These documents were executed in the name of one Sanjay Kumar, who has been examined as DW3. He had stated that he came to know that the said plot was again sold to one Anita, so, due to intervention of friends and common persons, the appellant had to return the amount taken from him and in the said transaction Smt. Anita had to pay an amount of Rs.20000/ besides consideration amount of Rs.230000/ to him. Witness has not been cross examine in any manner as to in what circumstances, these documents were executed by the appellant in favour of this Sanjay Kumar, examined as DW3. Rather, this transaction has been concealed by the appellant in the suit itself and he did not mention about the same in any manner. In the entire cross, even it is not suggested that these documents are forged and fabricated, rather, DW3 in the cross examination had stated that when the appellant was confronted with the deal made with Smt. Anita, he started weeping and defendant Smt. RCA No.62/2008 Page No.13 of 17 Anita stated that she will return the money to him and he agree for this.
26. After this transaction, the appellant again executed GPA, Agreement to sell, receipt, WILL, rent agreement etc. Ex.PW1/D5, 1/D6, 1/D7, 1/D8 &1/D9 on 13.09.2001 and executed receipt for a sum of Rs.130000/. Thereafter, again on 10.07.2002 appellant executed similar documents Ex.PW1/D1, 1/D2, 1/D3 & 1/D4 and executed receipt for a sum of Rs. 150000/, so, the conduct of the appellant itself speaks and shows that he had sold the suit property, which he was not eligible for and the pleadings to the extent that he had signed the documents twice at the time of obtaining loan of Rs.10000/ from defendants, is not believable. It is admitted fact that defendants have given the payment to Sh. Sanjay Kumar with whom appellant had entered with the sale of the suit property for the first time in the year 2000 and the said documents were obtained by the defendants from said Sanjay Kumar after making payment to him and these documents have also been filed before the court by the defendants, which have been concealed by the appellant in the suit itself. The ld. Trial court also observed that plaintiff has failed to prove his case to the extent that it was a loan transaction.
27. The relief claimed of permanent injunction, mandatory RCA No.62/2008 Page No.14 of 17 injunction and declaration have been declined.
28. From the documents executed by the appellant / plaintiff firstly in favour of one Sanjay Kumar and thereafter twice in favour of Smt. Anita shows that he intentionally and knowingly executed these documents of sale of the suit property, so, there could not be any declaration to the extent that the said documents are invalid and illegal and have no importance in the eyes of law. Similarly, in the mandatory injunction prayer, it is claimed that the defendants be directed to return the documents. As the plaintiff had failed to prove the loan transaction, so, there could not be any decree of said mandatory injunction, as prayed to return the documents.
29. Written submissions have also been filed on behalf of appellant and in support of the same, the ld. counsel for the appellant has relied upon following judgments :
a) Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana and others, VII(2001) SLT 494, Supreme Court of India.
b) Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana and others, AIR 2009 Supreme Court
c) Ram Gopal Reddy v. The Additional Custodian Evacuee Property, AIR 1966 Supreme Court 1438
d) Rambaran Prasad v. Ram Mohit Hazra & Ors., 1967(1) Supreme Court Reporter, page no.293
e) Patel Natwarlal Rupji v. Sh. Kondh Group Kheti Vishayak & Ors., 1996 I AD Superme Court 572
f) Jayshree Oza v. Rakesh Mohan & Ors., 1998 IV AD (Delhi) 770
g) G. Ram v. Delhi Development Authority, AIR 2003 (Delhi) 120 RCA No.62/2008 Page No.15 of 17
h) Amol & Ors. v. Deo Rao & Ors., AIR 2011 (NOC) (Bombay)
i) Rajesh Aggarwal v. Balbir Singh & Anr., 56 (1994) Delhi Law Times 83
30. The first judgment is in reference of section 53A, 54, 55 of Transfer of Property Act. It is contended that sale can be made only by way of registered instrument and agreement to sell does not create any right, title or interest. Before the ld. Trial court, it is not the defendant, who is claiming the right, title or interest on the basis of agreement to sell, rather, appellant has sought declaration that said agreements are null and void, but, it has been held that said documents were duly executed by the appellant with the intention to sell the property and without any further prayer nothing could be held further. Other judgments relied upon are also on the same footing. The documents executed by the appellant for sale of the suit property twice in favour of the defendant, are held to be duly executed and the court has not believed the contention of the appellant that the documents were got executed on the pretext of loan transaction, so, the judgments relied upon are not applicable to the facts and circumstances of the suit.
31. Consequently, appellant has not been able to raise any material point to interfere in the judgment of ld. Trial court. If the defendants have not taken any action against the plaintiff on the basis of these documents, then, it does not mean that the RCA No.62/2008 Page No.16 of 17 documents were not executed by the plaintiff with the intention to sell the suit premises.
32. Accordingly, appeal being meritless, is dismissed. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. The record of the trial court is ordered to be returned.
Announced in the open Court on 24.04.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi / 24.04.15 RCA No.62/2008 Page No.17 of 17