Delhi District Court
O58 vs Delhi Development Authority on 15 May, 2019
CS No. 173-16 / 17-17 dated 15.05.2019
IN THE COURT OF MS. VANDANA,
SCJ Cum RC (NORTH), ROHINI COURTS, DELHI.
In the matter of:
SH. PREHLAD
S/o Sh. Sadhu Ram,
R/o A281,
Peeragarhi Relief Camp,
New Delhi
Also at:
O58, Chankya Place, PartII,
Near C1, Janakpuri,
Uttam Nagar, New Delhi ........Plaintiff
Versus
1. DELHI DEVELOPMENT AUTHORITY
DBlock, Vikas Sadan,
Behind INA Market,
New Delhi, through
its Asstt. Director (Housing)
JantaII
2. MR. TUSHAR,
Flat No. 417, PocketI, SectorA6,
Narela, Delhi. ........Defendants
Prehlad Vs. DDA & Anr. 1/22
CS No. 173-16 / 17-17 dated 15.05.2019
JUDGMENT
1. New CS No. : 17316 / 1717
2. Under section : Declaration of title &
Possession with
consequential reliefs
possession
3. Date of Institution : 25.01.2017
4. Date of final order : 15.05.2019
5. Final order : Dismissed
The suit is for declaration of title with consequential relief of possession filed by the plaintiff against the defendants.
1. Succinctly stated the fact as mentioned in the plaint are as under: 1.1 The plaintiff is a "punjabi migrant" and was earlier residing at A281, Peeragarhi Relief Camp, Delhi under temporary allotment/arrangement made by the Govt. of Delhi. Later on, in lieu of the aforesaid allotment, the plaintiff applied for allotment of residential flat under the scheme announced by the NHRC. The defendant no. 1 issued a demand letter No. 2751 dated 30.07.2001-01.08.2001 in favour of the plaintiff for allotment of Prehlad Vs. DDA & Anr. 2/22 CS No. 173-16 / 17-17 dated 15.05.2019 Flat No. 417, PocketI, Sector A6, Narela, Delhi (hereinafter referred as suit property). The plaintiff deposited a sum of Rs. 10,000/ as the booking amount vide Demand Draft and the plaintiff later on, also made a payment of sum of Rs. 50,000/ within the stipulated period, out of the total hire purchase amount of Rs. 1,80,000/.
1.2 It has been further averred that the plaintiff made several visits to the office of defendant no. 1 for getting physical possession of the said flat but till date the defendant no. 1 has neither given the physical possession to the plaintiff nor has raised any demand of outstanding from the plaintiff.
1.3 It has been further averred that the plaintiff had taken a loan of Rs. 20,000/ from some local dealer and the same was paid back to the said dealer by the plaintiff. But, the said local dealer taking advantage of the plaintiff's illiteracy and vulnerability made the plaintiff sign and deliver some blank papers as a security against the said loan amount to the plaintiff at the time of giving the said loan to the plaintiff. Later on the plaintiff discovered that some other person (third party) is in possession of the aforesaid flat allotted to the plaintiff.
1.4 It has been further averred that the plaintiff immediately
Prehlad Vs. DDA & Anr. 3/22
CS No. 173-16 / 17-17 dated 15.05.2019
informed the defendant no. 1 as well as the Hon'ble Lieutenant Governor of Delhi about the said fact and also made a demand of physical possession of the aforesaid allotted flat bearing no. 417, PocketI, Sector A6, Narela, Delhi.
1.5 It has been alleged that the abovesaid flat allotted to the plaintiff could not be handed over by defendant no. 1 to any third person or a stranger/ defendant no. 2 except the plaintiff, who is allottee of the said plot. It has been further averred that the plaintiff made repeated requests to the defendant no. 1 to receive the balance of hirepurchase amount and to execute a conveyance deed in his favour, but the defendant no. 1 did not pay any heed. In these circumstances, the plaintiff served a legal notice dt. 17.04.2013 but the defendant no. 1 neither replied the same nor acted upon it. Hence, the present suit has been filed seeking the following reliefs: A) A decree of declaration, declaring that the plaintiff is the sole and absolute owner of the Flat No. 417, PocketI, SectorA6, Narela, Delhi.
B) A direction to the defendant no. 1 to give peaceful and vacant possession of Flat No. 417, PocketI, SectorA6, Narela, Delhi to the plaintiff.
Prehlad Vs. DDA & Anr. 4/22CS No. 173-16 / 17-17 dated 15.05.2019
2. WRITTEN STATEMENT OF DEFENDANT NO.1/DDA 2.1 Vide detailed WS, preliminary objections were raised regarding no cause of action and nonmaintainability of the present suit for want of mandatory notice. On merits, it was submitted that on the basis of recommendation from SDM (Punjabi Bagh) in the name of Shri Prahlad S/o Sadhu Ram and subsequent application Form No. 3920 filled up by the recommendee DDA Flat N. 417, Ground Floor, PktI, TypeA, SectorA6, Narela was allotted to Shri Prahlad in the draw held on 06.07.2001 on HirePurchase Basis against file No A339(636)2001/HSRPM/NA(P6/C). It was further stated that on completion of codal formalities towards issuance of Possession Letter and NOC (for applying Electricity/Water Connection), Possession Letter and NOC was handed over in person to Shri Prahlad on 04.04.2002. Thereafter, no communication was received from the plaintiff. But on 12.03.2013, a letter on judicial paper was received from him stating that DDA has not given him the possession.
2.2 It was further stated that in response, reply was sent to him on 19.03.2013 informing about the fact that possession of the flat has already been handed over to him, however, for any further information/clarification, he may appear in it's office. On 02.04.2013, again a letter was received in DDA office from Shri Prehlad Vs. DDA & Anr. 5/22 CS No. 173-16 / 17-17 dated 15.05.2019 Prahlad stating that dealer from whom he had taken Rs. 20,000/ as loan for 6 months has forcibly occupied his flat and requested for possession.
2.3 Thereafter, a legal notice dated 17.04.2013 was received from Shri L. S. Rana, Advocate on behalf of Shri Prahlad for intimating balance statement and urged for handing over physical possession to Shri Prahlad by getting the flat freed from unauthorized occupant. Legal notice was replied by DDA office on 02.06.2013. In response, Executive Engineer ND12/DDA was sent on 26.04.2013 to confirm the details of physical possession of flat and current status, followed by reminder on 16.05.2013. Response dated 03.06.2013 was received from the engineering wing by enclosing copy of possession slip wherein it was evident that the physical possession was handed over to allottee Shri Prahlad. Further stated that Shri Prahlad took the loan against the allotted flat from other than authorized financial institution which was illegal and status of the allottee remains as tenant till he clears the dues of the DDA, which are still outstanding.
2.4 It was also informed by the Executive Engineer, ND12 vide letter dated 14.02.2017 that Smt. Sonia Malhotra W/o Sh. Devender Malhotra has been residing in the flat for the last 4 years having purchased the suit property from Smt. Seema Dahiya.
Prehlad Vs. DDA & Anr. 6/22 CS No. 173-16 / 17-17 dated 15.05.2019
3. WRITTEN STATEMENT OF DEFENDANT NO. 2
3.1 Taking preliminary objections, it was submitted that the
present suit has been filed after concealing the material facts. On merits, it was submitted that the suit property was sold by the plaintiff in the year 2002 to Mr. Rajesh Gupta by executing GPA duly registered with subregistrar and registered will dt. 05.06.2002. The plaintiff also executed agreement to sell and the receipt towards sale consideration of the flat and handed over all the original papers including possession slip etc. to the said purchaser of the flat. Thereafter, the suit property was sold to Mr. Rajesh Kumar by Sh. Rajesh Gupta on 26.07.2002 by executing a registered GPA and Will dt. 26.07.2002. The suit property was again sold to Mrs. Seema by Mr. Rajesh Kumar on 21.07.2003 by executing a registered GPA and Will dt. 21.07.2003.
3.2 Thereafter, the suit property was purchased by the mother of defendant no. 2 namely Mrs. Sonia Malhotra in the year 2006 from Mrs. Seema by way of registered agreement to sell, GPA dt. 10.07.2006. The possession letter and other original documents were handed over to the mother of defendant no. 2. The mother of defendant no. 2 duly got house tax and electricity papers transferred in her name. The name of mother of defendant no. 2 stands substituted in all the municipal record qua the suit Prehlad Vs. DDA & Anr. 7/22 CS No. 173-16 / 17-17 dated 15.05.2019 property. It has been further stated that the defendant no. 2 alongwith his mother have been residing in the suit property since 2006 and they are the bonafide purchaser of the suit property. The defendant no. 2 also claimed adverse possession against the plaintiff.
3.3 It was further stated that the plaintiff is claiming possession from the defendants by making false and frivolous allegation that some local dealer took his sign on some blank papers and gave him loan which is completely false and have no iota of truth. It was further stated that the suit property was transferred by the plaintiff himself by executing general power of attorney, sale deed and Will which were got registered in the office of Subregistrar, bearing the plaintiff's signature and his thumb impression. It was further stated that this fact shows and proves that he has not transferred the suit property under any type of coercion and undue influence. Hence, prayer was made to dismiss the present suit as plaintiff is neither the owner of the suit property nor is in the possession of the same.
4. REJOINDER 4.1 Rejoinder to the WS on behalf of defendant no. 1 & 2 was filed separately vide which the averment made by the plaint Prehlad Vs. DDA & Anr. 8/22 CS No. 173-16 / 17-17 dated 15.05.2019 were reiterated and submissions made in the WS were refuted.
5. FRAMING OF ISSUES 5.1 Vide order dated 07.11.2017 following issues were framed :
(i) Whether plaintiff is entitled to the decree of declaration as prayed for ? OPP.
(ii) Whether plaintiff is entitled to the possession of the suit property i.e. Flat no. 417, Pocket1, SectorA6, Narela, Delhi ? OPP
(iii) Whether signature of the plaintiff obtained on possession letter, NOC and in register of the defendant no. 1 at the time of handing over the physical possession of the suit property are forged and fabricated ? OPP
(iv) Whether the suit is not maintainable as it has been filed after concealment of material fact ? OPD1
(v) Whether the suit has been filed without any cause of action hence not maintainable ? OPD2
(vi) Whether the suit is not maintainable for want of service of notice under Section 54 (D) of DD Act ? OPD2
(vii) Relief.
Prehlad Vs. DDA & Anr. 9/22CS No. 173-16 / 17-17 dated 15.05.2019 6. PLAINTIFF'S EVIDENCE 6.1 Plaintiff examined himself as PW1 and tendered his
evidence by way of affidavit Ex. PW1/A. He relied upon the following documents as under:
(i) Ex. PW1/1 is election identity card ;
(ii) Ex. PW1/2 is receipt of diet money ;
(iii) Ex. PW1/3 is receipt of inventory issued by the office of deputy commissioner ;
(iv) Ex. PW1/4 is electoral I card ; (v) Ex. PW1/5 family photographs ; (vi) Ex. PW1/6 is ration card ;
(viii) Mark B is a demand letter dt. 30.07.2001 of DDA ;
(x) Ex. PW1/10 is letter to LG of Delhi ; (xi) Mark C is legal notice dt. 17.04.2013 ;
(xii) Mark D is a photocopy of earlier suit filed by the plaintiff i.e. suit no. 187/13 ;
(xiii) Ex. PW1/13 is order dated 22.11.2016 by the predecessor of this court.
Prehlad Vs. DDA & Anr. 10/22CS No. 173-16 / 17-17 dated 15.05.2019 6.2 PW2 Smt. Nirmala Devi W/o Sh. Prahald was examined
and tendered her evidence via affidavit Ex. PW2/1.
6.3 PW1 and PW2 were duly crossexamined and discharged and thereafter, PE was closed.
7. EVIDENCE OF DEFENDANT NO. 17.1 D1W2 Sh. Kuldeep Bhatia, Assistant Director (Housing) DDA, Vikas Sadan, INA, New Delhi examined himself and tendered his evidence by way of affidavit Ex. D1W2/A. He relied upon the following documents as under :
(a) The recommendation letter received by SDM, Punjabi Bagh Ex. D1W2/1 ;
(b) The application form is Ex. D1W2/2 which was already exhibited as PW1/D6 ;
(c) The demand cum allotment letter is Ex. D1W2/3 ;
(d) The acknowledgment slip dated 26.08.2001 is Ex. D1W2/4 ;
(e) The challan dated 30.01.2002 is Ex. D1W2/5 ;
(f) The letter alongwith documents filed by the plaintiff dt.04.02.2002 exhibited as Ex. D1W2/6 (colly.) (The same are Prehlad Vs. DDA & Anr. 11/22 CS No. 173-16 / 17-17 dated 15.05.2019 already exhibited as Ex. PW1/D2, D3, D4 and D5) ;
(g) The letter dated 01.04.2002 is Ex. D1W2/7 (The same is already exhibited as Ex. PW1/D1) ;
(h) The possession slip dated 04.04.2002 is Ex. PW1/D6
(i) The NOC dated 04.04.2002 is Ex. D1W2/9.
7.2 Despite opportunity, he was not crossexamined by the plaintiff. Thereafter, DE on behalf of defendant no. 1/DDA was closed.
8. EVIDENCE OF DEFENDANT NO. 28.1 The defendant no. 2 got examined himself as D2W1 and tendered his evidence via affidavit Ex. D2W1/A. He relied upon the document Mark A i.e copy of Aadhar card.
8.2 Smt. Sonia Malhotra (mother of defendant no. 2) was examined as D2W2 who tendered her evidence via affidavit Ex. D2W2/A. She relied upon the following documents :
a) Ex. D2W2/1 i.e. GPA, Ex. D2W2/2 i.e agreement to sell, Ex. D2W2/3 i.e. Will, Ex. D2W2/4 i.e. receipt executed by plaintiff Prehlad Vs. DDA & Anr. 12/22 CS No. 173-16 / 17-17 dated 15.05.2019 in favour of Rajesh Gupta with respect to the suit property;
b) Ex. D2W2/5 i.e. GPA, Ex. D2W2/6 i.e. receipt, Ex. D2W2/7 i.e. agreement to sell, Ex. D2W2/8 is deed of Will executed by Sh. Rajesh Gupta S/o late Kanshi Ram R/o C51, Ashok Vihar, PhaseI, Delhi in favour of Sh. Rajesh Kumar S/o Sh. Kulbhushan Kumar with respect to the suit property.
c) Ex. D2W2/9 i.e. GPA, Ex. D2W2/10 i.e. Will, Ex. D2W2/11 i.e. agreement to sell, Ex. D2W2/12 is receipt executed by Sh. Rajesh Kumar S/o Sh. Kulbhushan Kumar with respect to the suit property in favour of Smt. Seema.
d) Ex. D2W2/13 i.e. GPA, Ex. D2W2/14 i.e. agreement to sell, Ex. D2W2/15 i.e. possession letter executed by Smt. Seema W/o Sh. Bijender Singh with respect to the suit property in favour of Sonia Malhotra.
e) Ex. D2W2/16 is house tax receipt dt. 26.03.2011 issued by Municipal Corporation in favour of Smt. Sonia Malhotra ;
f) Ex. D2W2/17 is copy of gas connection in her favour;
g) Mark X is telephone bill of MTNL in her favour dated
Prehlad Vs. DDA & Anr. 13/22
CS No. 173-16 / 17-17 dated 15.05.2019
21.12.2015 to 11.01.2016 ;
h) Mark Y (colly.) are electricity bills of NDPL issued in
regard to month of August 2017, and for the month of December,
2016 as well as acknowledgement receipt issued by NDPL dated 28.12.2006 ;
i) Ex. D2W2/20 is a passbook of Bank of India issued in his favour regarding his account with bank opened in the year 2007;
j) Ex. D2W2/21 is voter ID card ; k) Ex. D2W2/22 is adhar card. 8.3 D2W1 and D2W2 were duly crossexamined and discharged.
8.4. Thereafter, DE on behalf of defendant no. 2 stands closed.
9. Final arguments heard. Case file perused.
10. Issue wise findings are as under:
11. I shall decide the legal issue first.
Prehlad Vs. DDA & Anr. 14/22CS No. 173-16 / 17-17 dated 15.05.2019
12. ISSUE NO. (VI) Whether the suit is not maintainable for want of service of notice under Section 54 (D) of DD Act ? OPD2.
12.1 From the DD Act, it is clear that it has to be section 53 (B) and not Section 54 (D) which provides for the mandatory requirement of notice to the DDA before filing the suit against DDA. However, Subsection 2 of Section 53 (B) itself lays down a suit for recovery of immovable property or for a declaration of title as an exception. Hence, the bar of Section 53 (B) is not applicable in the present case. Accordingly, the abovesaid issue is decided in favour of the plaintiff and against the defendant.
13. Now I shall decide the issue based on facts.
14. ISSUE NO. (I) Whether plaintiff is entitled to the decree of declaration as prayed for?
OPP.
14.1 Before discussing the testimony of plaintiff, I deem it appropriate to mention that the affidavit of plaintiff i.e Ex. PW1/A is not reliable one as he candidly admitted before the court Prehlad Vs. DDA & Anr. 15/22 CS No. 173-16 / 17-17 dated 15.05.2019 that he does not have any knowledge as to what is written in his affidavit.
14.2 Coming to the facts of the case, the plaintiff has prayed that he be declared the sole and absolute owner of the suit property alleging that he never sold the suit property to the person who is residing in the suit property and in fact the DDA never handed over the possession of the suit property to him till date. On the other hand, the DDA has taken the plea that possession has already been handed over to the plaintiff on 04.04.2002. Besides, the defendant no. 2 has relied upon the chain of property documents submitting that the plaintiff himself sold the suit property to Sh. Rajesh Gupta, who further sold it out to Sh. Rajesh Kumar. Thereafter, Sh. Rajesh Kumar sold it out to Smt. Seema from whom, it was purchased by the mother of the defendant no. 2.
14.3 With respect to the above, when plaintiff / PW1 was crossexamined, he duly admitted his signature on the document Ex. PW1/D10 i.e. GPA, Agreement to sell, deed of will, receipt and indemnity bond all dated 05.06.2002 executed by the plaintiff in favour of person namely Sh. Rajesh Gupta. In the indemnity bond it has been clearly mentioned that executant i.e. plaintiff is in the possession of suit property. The contention of the plaintiff is that he signed on some blank documents as security for the purpose of Prehlad Vs. DDA & Anr. 16/22 CS No. 173-16 / 17-17 dated 15.05.2019 taking loan of Rs. 20,000/ from a local dealer. But he did not even mention the name of the said local dealer or even the number of papers on which he allegedly put his signatures. Moreover, it is the matter of common knowledge that for the purpose of taking loan, that too of Rs. 20,000/ only a loan agreement is to be executed. The plaintiff has tried to represent himself as an innocent person by deposing that he was made to sign some blank papers as security for the purpose of taking loan. But the documents i.e. GPA, Agreement to Sell, Will etc. bears the signature and thumb impression of the plaintiff on each and every page at the right place, which is not possible, had his signatures were obtained on blank papers. It is important to mention here that the GPA and Will are the registered documents.
14.4 Further, the plaintiff, since 05.06.2002 never challenged those documents. He did not take any action to file the suit for getting the above said documents cancelled which admittedly bears his signatures. Now, the present suit has been filed on 25.01.2017, but, still, no relief for cancellation of the above said documents was sought by the plaintiff which ought to have been filed by him. Admittedly, not even a single complaint was filed by him against the said dealer. Therefore, the above said issue is decided against the plaintiff and in favour of the defendant.
Prehlad Vs. DDA & Anr. 17/22CS No. 173-16 / 17-17 dated 15.05.2019
15. Now, I shall decide both the issue no. II and III together being connected one.
16. ISSUE NO. (II) Whether plaintiff is entitled to the possession of the suit property i.e. Flat no. 417, Pocket1, SectorA6, Narela, Delhi ? OPP & ISSUE NO. (III) Whether signature of the plaintiff obtained on possession letter, NOC and in register of the defendant no. 1 at the time of handing over the physical possession of the suit property are forged and fabricated ?
OPP 16.1 The case of the plaintiff is that the suit property was allotted to him but possession of the suit property was not handed over to him despite his repeated requests and defendant no. 2 is in the illegal possession of the suit property. On the other hand, the defendant no. 1 has contended that it has already handed over the possession of the suit property to the plaintiff on 04.04.2002 vide possession letter and NOC. However, the signature on the said Prehlad Vs. DDA & Anr. 18/22 CS No. 173-16 / 17-17 dated 15.05.2019 documents were alleged to be false and fabricated by the plaintiff. The onus to prove the forgery was upon the plaintiff. However, the plaintiff did not lead any evidence in this regard at all. Even, he did not move any application for getting his signature verified on the above said documents from FSL.
16.2 During crossexamination, the plaintiff/PW1 was confronted with Ex. PW1/D1 i.e. the submission of the original acknowledgment of Form no. 3920 dt. 01.04.2002. The plaintiff duly admitted his signature "at point A" but having admitted the same, he refused the same to be his signature. He even denied the signature on Ex. PW1/D2 i.e. submission of required document for taking possession of the suit property. Though he admitted his signature on affidavit Ex. PW1/D3 and the undertaking Ex. PW1/D4 but he stated that it was signed by him as it was told to him that these documents were pertaining to the loan of Rs. 20,000/ from the above. From the above, it is evident that the plaintiff has admitted and denied his signatures on different documents according to his convenience. When he could not defend himself then, he took the false plea that he signed the those documents whatsoever for the purpose of taking of loan of Rs. 20,000/. But, it is interesting to note that he could not even recall the name of the person from whom he took the alleged loan of Rs.
Prehlad Vs. DDA & Anr. 19/22CS No. 173-16 / 17-17 dated 15.05.2019 20,000/. None of the documents, where the plaintiff has admitted his signature bears any figure of Rs. 20,000/. Therefore, it is clear that the testimony of plaintiff is not reliable one. Otherwise also, the witness of DDA was not crossexamined by the plaintiff which again strengthens the stand of DDA.
16.3 As the plaintiff has failed to prove the alleged forgery and fabrication of the possession letter and NOC, therefore the above said issues are decided against the plaintiff and in favour of the defendant no. 1.
17. ISSUE NO. (IV) Whether the suit is not maintainable as it has been filed after concealment of material fact ? OPD 1 17.1 The plaintiff did not disclose the factum of filing of previous suit. It was deposed by PW1/plaintiff that he has not filed any suit earlier against DDA and this is his first case against DDA. However, from the case file of suit no. 187/13, it is apparent that the plaintiff had filed a suit on 22.05.2013 against the DDA, which was later on withdrawn by him.
Prehlad Vs. DDA & Anr. 20/22CS No. 173-16 / 17-17 dated 15.05.2019 17.2 Therefore, it is clear that the defendant has deliberately
concealed the abovesaid fact from the court reasons best know to him, accordingly, the abovesaid issue is decided in favour of the defendant and against the plaintiff.
18. ISSUE NO. (V) Whether the suit has been filed without any cause of action hence not maintainable ? OPD2 18.1 The plaintiff has himself admitted his signature on the documents vide which suit property was sold out to Sh. Rajesh Gupta on 05.06.2002, though he alleged that his signatures were obtained on blank papers by one local dealer as security for granting loan to plaintiff. However, he never filed any case against the alleged local dealer whose name was not even mentioned by him. Neither, the plaintiff filed any suit for cancellation of the above said documents despite having knowledge that the GPA and Will are registered documents and suit property was transferred for consideration. Therefore, plaintiff, at present that too, after 15 years of execution of those documents has no cause of action against the defendant, accordingly the above said issue is decided against the plaintiff and in favour of the defendant no.
2. Prehlad Vs. DDA & Anr. 21/22
CS No. 173-16 / 17-17 dated 15.05.2019
19. In view of my above said findings, the suit of the plaintiff is dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the Open Court on 15.05.2019.
(VANDANA) SCJcumRC (North) Rohini Courts, Delhi/15.05.2019 Prehlad Vs. DDA & Anr. 22/22