Delhi District Court
M/S Loharu Infrastructures Private Ltd vs Prem Shankar Aggarwal on 28 October, 2017
IN THE COURT OF SH. ANIL KUMAR SISODIA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/612749/2016
M/s LOHARU INFRASTRUCTURES PRIVATE LTD.
M-28, Greater Kailash-II(Market)
3rd Floor, New Delhi-110048 ...........Plaintiff
Versus
1.PREM SHANKAR AGGARWAL
S/o Sh. Banarasi Dass
R/o West Enclave, Pitam Pura,
New Delhi-34.
2.ATMA RAM AGGARWAL
S/o Late Shri Lalta Prasad Aggarwal
R/o C-616, Main Rohtak Road,
Nangloi, New Delhi-41.
3.M.S. VATS, Tehsildar
C.O.Punjabi Bagh, Main Rohtak Road,
Nangloi, New Delhi-41.
4.RANBIR SINGH
S/o Shri Shish Ram
R/o Village & P.O.
Mubarak Pur Dabas, Delhi. .........Defendants
Date of institution :- 21.07.2001
Order Reserved On:- 25.10.2017
Date of Decision:- 28.10.2017
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 1/36
For the Plaintiff:-Sh. B.D. Kaushik & Sh. T.C. Sharma, Advocate
For the Defendant no.1, 2 & 4:-Sh. Ravinder Yadav, Advocate.
SUIT FOR CANCELLATION OF SALE DEED DATED
05.03.2001, DECLARATION, PERMANENT
INJUNCTION AND DAMAGES
JUDGMENT
1. P LA I N T 1.1. Plaintiff Smt. Saraswati Mishra filed the present suit against the defendants for cancellation of sale deed dated 05.03.2001, declaration, permanent injunction and damages. During the pendency of the suit, M/s Loharu Infrastructures Pvt Ltd. was substituted as a plaintiff in place of Smt. Saraswati Mishra, on an application under Order 22 Rule 10 CPC filed by it, vide order dated 11.08.2017.
1.2. Facts of the case as stated in plaint are that plaintiff and her husband came to Delhi in 1981 and met defendant no.-2 who is a property dealer and requested him for his help in purchasing some land in Delhi. Plaintiff purchased agricultural land measuring 28 bigha and 16 biswa situated in village Safipur Ranhola Delhi comprising of Khasra nos.46/12(4-16), 19(4-16), 20(4-16), 21(4-16), 22/1(0-4), 22/2(4-12) and 47/16(4-16){hereinafter referred to as suit lands} through defendant no.-2 for valuable consideration from Sh. Dariya and Maya Ram vide two sale deeds dated 09.11.1981. Sh Dariya and Maya Ram handed over M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 2/36 the actual vacant and physical possession of suit lands to plaintiff on 09.11.1981. Before and after the purchase of suit lands, plaintiff and her husband frequently visited the office of defendant no.-2 who used to give them a warm welcome and defendant no.-2 also treated plaintiff as his elder sister. Since plaintiff and her husband were not familiar with the procedure of mutation, they entrusted the same to defendant no.-2 who assured to get suit land mutated in the name of plaintiff. After purchase of the suit lands, plaintiff's husband used to get the same cultivated through hired labourers from 1990 onwards through his agent. In 1992 plaintiff's husband met with a major accident and in the end of 1997, suffered from angenial ailments and fluctuating blood pressure and often used to remain on complete bed rest and therefore, the plaintiff and her husband were unable to look after their suit lands in Delhi. Defendant no.-2 who used to visit plaintiff's family at Cuttack and more particularly around Raksha Bandhan was aware about the helplessness and inability of plaintiff to look after the suit lands. Defendant no.-2 being aware about the aforesaid facts, hatched a criminal conspiracy in collusion and connivance with his associates namely Rajender, Suresh Kumar and Hariram to grab the suit lands and manufactured a forged GPA dated 13.05.1994 by forging the signatures of plaintiff in Hindi and got the same notarized but defendant no.-2 and his associates could not succeed in their illegal plans to grab the suit lands belonging to plaintiff.
1.3. It is further stated in the plaint that defendant no.-2 and his associates again manufactured another set of forged documents containing GPA, affidavit, Deed of Will, Agreement to Sale all dated M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 3/36 18.01.2000 by forging signatures of plaintiff in Hindi and got the GPA registered before the Sub-Registrar, Khurda Orissa by personating some lady as plaintiff. Plaintiff lodged FIR at PS Khurda against defendant no.-2 and his associates. On the basis of forged GPA dated 18.01.2000, aforesaid Rajender executed Conveyance Deed dated 28.01.2000 in favour of Suresh Kumar and got it registered before Sub-Registrar Mumbai. Suresh Kumar applied for mutation of the suit lands in his name before defendant no.-3 on the basis of conveyance deed dated 28.01.2000 but could not succeed in grabbing suit lands. In the meanwhile, one Azad Singh forged number of documents and filed suit no.36/2000 in High Court on the basis of those documents which was dismissed as withdrawn after defendant no.-2 and his associates settled the matter among themselves. Thereafter, defendant no.-2 visited family of plaintiff at Cuttack in August 2000 and induced her to sell her suit lands and agreed to purchase the same for a total sale consideration of Rs.1,10,00,000/- and was ready to pay Rs.60 lacs by demand drafts and with balance sale consideration of Rs.50 lacs. Defendant no.-2 assured the plaintiff to install and handover three fully operational petrol pumps, one each in the name of plaintiff, her major son and her daughter at Cuttack. Defendant no.-2 again visited the family of plaintiff at Cuttack during Ganesh Chaturthi and induced her to sell the suit lands to him. In pursuance of the oral agreement to sell, defendant no.-2 handed over four demand drafts amounting to Rs.16 lacs on 01.09.2000 as advance and also handed over one more demand draft of Rs.3 lacs being the price of usufructs of the suit lands and requested plaintiff to sign the back dated receipts dated 28.08.2000, one in his own name and another in the name M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 4/36 of defendant no.1 to which plaintiff obliged. Defendant no.-2 also obtained her signatures on a blank stamp paper of Rs.50/- and blank papers for submitting applications for allotment of petrol pumps alongwith photographs of plaintiff, her husband, her major son and daughter, photocopies of their election I card and some typed papers signed by major son of plaintiff. Thereafter, defendant no.-2 took plaintiff's husband and her neighbour Sh. P.P. Satpathy to Chandi Khol for purchasing land for petrol pumps where he spoke to some property dealers and visited a few sites and returned to Delhi after paying token charges to property dealers but without finalizing anything.
1.4. In November 2000, defendant no.-2 telephonically informed plaintiff that allotment letters of petrol pumps were likely to be issued soon and he would be visiting her in near future for purchasing land for petrol pump but defendant no.-2 did not visit her. The husband of plaintiff came to Delhi in last week of November 2000 and inquired about progress in allotment of petrol pumps and remaining balance consideration amount from defendant no.-2. Defendant no.-2 informed plaintiff's husband that certain minor formalities were yet to be completed and allotment letters will be issued within a week or so. Thereafter, husband of plaintiff went to the suit lands and met his agent who told him that defendant no.-2 is fraudulently trying to sell part of the suit lands in the absence of plaintiff. Plaintiff's husband met Halka Patwari and obtained Khatoni and came to know that land measuring 7 bigha and 4 biswas(hereinafter referred to as the said land) was not mutated in the name of plaintiff in the revenue records. Husband of the M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 5/36 plaintiff tried to meet defendant no.-2 but could not succeed in meeting with him and left for Cuttack. The husband of plaintiff again visited Delhi in January 2001 and tried to find out the status of the said land but could not succeed due to indifferent and careless attitude of defendant no.-2. Defendant no.-2 informed that he forgot to apply for mutation and assured plaintiff's husband to get the same mutated in her name and asked him to bring original sale deeds and plaintiff with him in March 2001 for completing sale of the suit lands. Plaintiff and her husband came to Delhi and signed four applications for obtaining NOC on 28.02.2001 after defendant no.-2 had shown various demand drafts amounting to Rs.44 lacs and handed over photocopies thereof to the plaintiff. Defendant no.2 told her that original drafts will be given at the time of execution and registration of sale documents in favour of his nominees. It was also informed by him that due to some inquiry, applications for allotment of petrol pumps were cancelled and he will pay balance sum of Rs.50 lakhs also by demand drafts at the time of registration of sale deeds in respect of the suit lands.
1.5. On 05.03.2001, defendant no.-2 alongwith defendant no.-1,4 and his other nominees took the plaintiff and her husband to the office of Sub-Registrar and asked her to execute sale deeds in favour of his nominees in the presence of Sub-Registrar. The plaintiff denied and asked defendant no.-2 to first obtain NOCs and make payments of balance sale consideration. Defendant no.-2 told plaintiff that NOC were not being issued by the competent authorities under the impression that the applications were forged and fabricated and requested the plaintiff to M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 6/36 give a statement before defendant no.-3 for issuance of NOC. On the request of defendant no.-2, plaintiff alongwith her husband, went to the office of defendant no.-3 who recorded her statement on 07.03.2001. The statement was signed by the plaintiff as well as by her husband. Thereafter, defendant no.-2 told her that he will inform her on telephone about issuance of NOCs and will ask her to come to Delhi to complete the formalities of sale as soon as the balance consideration amount is arranged.
1.6. On 18.03.2001, defendant no.-2 visited the house of plaintiff at Cuttack and informed that his associates will come in a day or two alongwith balance consideration of Rs.50 lacs and handover the same to plaintiff. However, no one came to Cuttack and defendant no.-2 left Cuttack on 28.03.2001 to enquire as to why his associates had not come. On 03.04.2001, plaintiff received a postal envelope from the office of defendant no.-3 containing an undated notice to appear before him on 31.03.2001. The said envelope was posted on 28.03.2001 from Post Office Nangloi. Thereafter, on 07.04.2001, plaintiff was shocked when she received final notice dated 31.03.2001 from the office of defendant no.-3 which required her to appear before defendant no.-3 on 04.04.2001 regarding mutation proceedings of the suit lands and the said notice was posted from Post Office Nangloi on 03.04.2001. Immediately upon the receipt of final notice, husband of plaintiff reached on Delhi on 09.04.2001 and went to the office of the defendant no.-3 and inquired about the notice whereupon it was revealed that the suit lands have already been mutated in the names of nominees of defendant no.-2 but M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 7/36 the number of case and date of order were not supplied to him. Thereafter, husband of plaintiff obtained photocopies of NOC from the notification branch Tis Hazari Court Delhi and went to office of Sub- Registrar-II Janakpuri New Delhi and conducted inquiry about execution and registration of the suit lands and it was revealed that sale deeds were registered on 13.03.2001. Plaintiff's husband applied for certified copies of sale deeds which were supplied to him on 09.04.2001 i.e. the same day. Thereafter, husband of plaintiff informed her and asked her to come to Delhi immediately as defendant no.-2 acting as her attorney had sold land measuring 1 bigha bearing Khasra no.46/22/2 min out of the suit lands to defendant no.1 vide sale deed 05.03.2001 registered on 13.03.2001. Defendant no.1 applied for mutation of the aforesaid land in his favour after getting the sale deed registered and defendant no.-3 granted mutation in his favour vide order dated 07.04.2001 against which plaintiff preferred Civil Appeal no.4/2001 which is pending in the Court of Addl. Collector(West) Delhi and Addl. Collector stayed the operation of impugned order dated 07.04.2001 of defendant no.-3 on 25.04.2001.
1.7. It was further stated that since defendant no.-2 had sold the aforesaid land to defendant no.-1 on the basis of forged and fabricated GPA dated 28.08.2000 therefore, the sale deed dated 05.03.2001 is illegal and void ab initio. The mutation granted by defendant no.-3 vide order dated 07.04.2001 is also illegal, null and void ab initio. On 17.04.2001, Halka Patwari told the case no. and date of order of mutation of the aforesaid land to plaintiff's husband who applied for certified copy of M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 8/36 mutation file. Perusal of the mutation file revealed that defendant no.-2 had dishonestly and fraudulently manufactured a forged GPA in his favour and also forged the signatures of husband of the plaintiff. The statement of plaintiff dated 07.03.2001 recorded before defendant no.-3 was also tempered by inserting one sentence "now land may be mutated in favour of vendee" as well as by accepting the words of defendant no.2 and intentionally dispatching the postal envelopes belatedly thereby rendering it impossible for plaintiff to appear before him on the date fixed in mutation proceedings. Therefore, defendant no.-3 has misused his official powers for causing wrongful gains to defendant no.1 and 2. It was stated that defendant no.-1 and 2 are trying to illegally and forcibly dispossess the plaintiff from the suit lands. On 07.06.2001, defendant no.-1,2 and 4 tried to forcibly and illegally cultivate the suit land but could not succeed due to timely intervention of plaintiff's husband, his agent and labourers. Plaintiff also sent a legal notice dated 30.06.2001 to the defendants and all defendants except defendant no.-1 have been duly served with the same as AD cards have been received back. The registered cover, AD Card or envelope containing notice sent by UPC to defendant no.-1 has not been received back till date giving rise to presumption of service on defendant no.-1. Defendants failed to comply with the notice despite its service. Finding no other alternative, plaintiff filed the present suit.
2. WRITTEN STATEMENTS BY THE DEFENDANTS 2.1. Defendant no.-1, 2 and 4 have filed a joint written statement M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 9/36 raising preliminary objections that the suit is cognizable by the Revenue Court and cognizance by Civil Court is barred. Suit is barred under Order 2 Rule 2 CPC. Plaintiff is estopped from denying the truth of the selling of the suit lands to defendant no.-2 and plaintiff has issued a receipt dated 28.08.2000 admitting the receipt of Rs.16 lacs as sale consideration of suit land. Plaintiff also executed GPA dated 28.08.2000 and also handed over original documents of suit lands and also handed over the vacant possession of the suit lands to defendant no.-2 on 28.08.2000. Plaintiff has not approached the Court with clean hands and has concealed material facts. Plaintiff cannot be allowed to retain both the benefits as she has received the entire sale consideration of the suit lands and she cannot be allowed to claim the suit lands after selling the same. There is no cause of action against the defendants for filing the suit.
2.2. On merits, the contents of para 1 and 2 of the plaint have been admitted but the remaining contents of the plaint were denied and it has been stated that plaintiff and her husband are habitual cheaters and they used to sell the same land to several persons and while executing the documents they used to sign in different manner and also used to sell the lands through other ladies posing as plaintiff. Defendant no.-2 paid the sale consideration in the form of demand drafts and obtained the receipt dated 28.08.2000. The plaintiff filed application for NOC and gave statement before defendant no.-3 only when defendant no.-2 told them that he would enforce the specific performance of the agreement through Court. It was also stated that plaintiff and her husband visited Delhi in M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 10/36 August 2000 and met defendant no.2 and expressed their eagerness to sell the suit lands measuring 28 bigha and 16 biswas bearing Khasra no.- 46/12(4-16), 19(4-16), 20(4-16), 21(4-16), 22/1(0-4), 22/2(4-12) and 47/16(4-16). Plaintiff and defendant no.-2 entered into oral agreement and defendant no.-2 agreed to purchase suit lands for Rs.16 lacs and plaintiff agreed to execute GPA and handover original title documents to defendant no.-2. Plaintiff also agreed to complete formalities and to get the suit lands mutated in the name of defendant no.2 or his nominees. Plaintiff executed GPA in August 2000 and her husband signed the same as a witness. Plaintiff also handed over the vacant possession of the suit lands and further agreed to come to Delhi and complete formalities regarding mutation. It was further stated that plaintiff and her husband cheated Mr. Rajender and when he demanded money back from the plaintiff, she instituted false case against the defendants and Mr Rajender and also filed false complaint against them in Orissa. It was denied that total sale consideration agreed was Rs.1.10 crores. It was also denied that defendant no.-2 assured the plaintiff to install and handover fully operational petrol pumps. It was also denied that defendant no.-2 handed over Rs.3 lacs in form of demand draft beside Rs.16 lacs. It was stated that plaintiff had requested for loan of Rs.6 lacs from defendant no.-1 and he agreed to give friendly loan of Rs.6 lacs for a period of 1 year @24% p.a. Defendant no.-1 gave Rs.3 lacs by way of cash on 28.08.2000 for which plaintiff gave a receipt and on 29.08.2000 Rs.3 lacs were given in the form of bank draft. It was further stated that the plaintiff had put a proposal to defendant no.-2 that she had a land in Chandi Khol which she wanted to sell. Defendant no.-2 accepted the M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 11/36 proposal and price for the said land was agreed at Rs.44 lacs. Plaintiff alongwith her husband and her neighbour took defendant no.-2 to Chandi Khol to show the land and also assured to bring the documents of the land in Chandi Khol to Delhi and to execute the documents. Later on defendant no.-2 came to know that plaintiff does not have any land in Chandi Khol and they wanted to cheat defendant no.-2. Plaintiff failed to show the original documents of land in Chandi Khol despite the fact that the defendant no.2 had shown bank drafts of Rs.44 lacs to plaintiff and also handed over photocopies of drafts to plaintiff.
2.3. It was further stated that Sh. Suresh Kumar Mangla is the owner of the land mentioned in para 15 of the plaint. It was admitted that plaintiff and her husband came to Delhi and made applications for obtaining NOC. It was denied that demand drafts of Rs.44 lacs were towards the sale consideration of the suit lands measuring 28 bigha 16 biswa. It was also admitted that plaintiff and her husband went to office of Tehsildar Punjabi Bagh on 07.03.2001 where her statement was recorded and same was signed by plaintiff and her husband. It was denied that any balance payment was left to be made to the plaintiff and it was reiterated that full and final payment for purchase of the suit lands was made on 28.08.2000. It was denied that receipt and GPA dated 28.08.2000 were forged and fabricated and the same were manufactured by defendant no.2. It was also denied that plaintiff is in possession of the suit lands and it was stated that suit lands are in possession of Sh Arvind Aggarwal, Gurcharan Singh and Prem Shankar Aggarwal. All other contents of the plaint were denied and prayer was made for dismissal of M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 12/36 the suit.
2.4. Defendant no.-3 has filed written statement raising preliminary objections that the Civil Court has no jurisdiction in the matter as plaintiff herself had approached revenue authorities in the matter against mutation orders which also involved the question of validity of sale deed in dispute. On merits, the contents of plaint were denied for the want of knowledge. It has been denied that the statement of plaintiff was tempered or that defendant no.-3 misused his official powers. Prayer was made for dismissal of the suit.
3. REPLICATION Plaintiff filed replications to the written statements of defendants and reiterated the contents of the plaint and denied the averments contrary to the plaint.
4. ISSUES After completion of pleadings, the following issues were framed on 24.08.2012:-
1. Whether the present suit filed on behalf of the plaintiff is time-
barred u/o2 rule 2 CPC? OPD-1,2&4
2. Whether this court does not have the jurisdiction to try the present suit?OPD-1,2&4.
3. Whether the Sale Deed dated 05.03.2001 is liable to be canceled, as prayed for in prayer clause-(a) of the plaint?OPP
4. Whether the Order of Mutation dated 07.4.2001 is liable to be M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 13/36 declared as null and void, as prayed for in prayer clause-(b) of the plaint?OPP
5. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for in prayer clause-(d) of the plaint?OPP
6. Whether the plaintiff is entitled to a decree for a sum of Rs.50,000/- as damages, as prayed for in clause-(e) of the plaint?OPP.
7. Relief.
Thereafter, the parties were directed to lead evidence.
5. EVIDENCE BY THE PLAINTIFF 5.1. Plaintiff has examined five witnesses in support of her case. PW-1 Sh. Govind Chandra Mishra tendered his evidence by way of affidavit Ex.PW-1/A. He also proved General Power of Attorney dated 24.11.2000 as Ex.PW-1/1; Office Copy of the legal notice dated 30.06.2001 as Ex.PW-1/2; The postal receipts as Ex.PW-1/3 & Ex.PW- 1/4.
5.2. PW-2 Sh. Neelam Sudhir, Kanoongo, Office of the SDM, Pujabi Bagh, New Delhi brought the summoned record pertaining to Khasra no.46/12(4-16), 46/21(4-16), 46/22/1(0-4), 46/22/2(4-12) and 47/16(4-16) situated at Village Safipur, Ranholla, Delhi.
5.3. PW-3 Ram Kumar Sehrawat, LDC from the office of SDM, West, Punjabi Bagh, Nangloi did not produce any records and testified that record summoned is available with the office of SDM Rampura, M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 14/36 New Delhi.
5.4. PW-4 Sh. Mokhtar Mahto, Record Keeper from the office of e- Sub Registrar-II, Basai Darapur, Delhi brought the summoned record i.e. a registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Gurcharan Singh and the certified copy of the same was exhibited as Ex.PW-4/1. He also brought another registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Arvind Aggarwal and the certified copy of the same was exhibited as Ex.PW-4/2 and another registered sale deed dated 05.03.2001 executed by Smt. Saraswati Mishra (through her attorney defendant no.2) in favour of Sh. Prem Shanker Aggarwal was exhibited as Ex.PW-4/3.
5.5. PW-5 Inspector Vinod Gandhi no.D-818, EOW, Crime Branch Delhi was IO in Case FIR no.443/2002 registered in PS Nangloi. He testified that the FIR was lodged by plaintiff and he had filed the chargesheet against the accused persons namely Atma Ram Aggarwal, Arvind Aggarwal, Suresh Kumar Mangla, Gurcharan Singh, Prem Shanker Aggarwal, Suresh Kumar Mangla, Gurcharan Singh, Prem Shanker Aggarwal, Rajinder, Ranvir Singh, Hari Ram, Azad Singh, Mahinder Singh Vats, Maya Ram before Ld.ACMM(West) in December 2010.
Thereafter, P.E. was closed.
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 15/366. EVIDENCE BY DEFENDANTS 6.1. Defendants have examined four witnesses in support of their case.
DW-1 Sh. Prem Shankar Aggarwal(defendant no.-1) tendered his evidence by way of affidavit as Ex.DW-1/A. He also proved the sale deed dated 05.03.2001 in his favour as Ex.PW-4/3; Mutation Order dated 07.04.2001 as Ex.DW-2/1; Khatoni of the suit land as Ex.DW- 2/2; Sale deeds in favour of plaintiff(Saraswati Mishra) were proved as Ex.DW-2/3 and Ex.DW-2/4; GPA dated 28.08.2000 as Ex.PW-1/D1/2; receipt dated 28.08.2000 as Ex.PW-1/D1/1; Photographs showing possession of defendant no.-2 as Mark A to Mark G11; Application filed by the plaintiff for obtaining NOC in favour of defendant no.-1 as ExPW-1/D1/3; Application filed by the plaintiff for obtaining NOC in favour of Arvind Aggarwal as Ex.PW-1/D1/4; Application filed by the plaintiff for obtaining NOC in favour of defendant no.-1 as Ex.PW- 1/D1/5; Sale deed executed by plaintiff(Smt. Saraswati Mishra) in favour of Arvind Aggarwal as Ex.PW-4/2; the sale deed executed by plaintiff in favour of Gurcharan Singh as Ex.PW-4/1; the copies of electricity bill as Mark H to Mark Q; receipt no.15708 as Mark R and the receipts for sale of vegetable produce as Mark S1 to S13.
6.2. DW-2 Sh. Atma Ram Aggarwal (defendant no.-2) tendered his evidence by way of affidavit Ex.DW-2/A. He has relied upon the documents already exhibited as Ex.PW-4/1 to Ex.PW-4/3, Ex.PW- 1/D1/3, Ex.PW-1/D1/4, Ex.PW-1/D1/5 and Ex.DW-2/1. He also relied on photographs Mark A to Mark G11, Copies of the electricity bill as M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 16/36 Mark H to Mark Q. The Copies of the receipt towards sale of vegetable produced obtained from the suit land as Mark S1 to S13 and Copy of FIR dated 20.04.2010 as Mark T. 6.3. DW-3 ASI Mahavir Singh testified that inspector Vinod Gandhi was the IO in FIR no.103/10, PS Ranholla and he had filed chargesheet in the aforesaid FIR and originals were filed in the Court of Ld.CMM(West) alongwith the Chargesheet.
6.4. DW-4 Sh. Suresh Kumar Ahlmad from the Court of Ms Charu Aggarwal, Ld.CMM, West, Tis Hazari Courts produced the record file of FIR no.103/2010 PS Ranhola tiled as State Vs. Arvind Aggarwal(complainant)(cancellation report). He has also brought original seizure memo dated 25.04.2010 as Ex.DW-4/1; the original electricity bill dated 25.09.2005 as Ex.DW-4/2; the original electricity bill dated 17.03.2006 as Ex.DW-4/3; the original electricity bill dated 17.05.2006 as Ex.DW-4/4; the original electricity bill dated 08.09.2006 as Ex.DW-4/5; the original electricity bill dated 20.11.2006 as Ex.DW- 4/6; the original electricity bill dated 01.11.2007 as Ex.DW-4/7; the original electricity bill dated 26.02.2008 as Ex.DW-4/8; the original electricity bill dated 28.05.2008 as Ex.DW-4/9; the original electricity bill dated 03.07.2008 as Ex.DW-4/10; the original electricity bill dated 02.11.2008 as Ex.DW-4/11; the original electricity bill dated 21.10.2009 alongwith payment receipt as Ex.DW-4/12(Colly); the original electricity bill dated 01.11.2009 as alongwith receipt Ex.DW- 4/13(Colly); the original electricity bill dated 29.12.2009 alongwith M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 17/36 receipt as Ex.DW-4/14(Colly); and the original electricity bill dated 19.02.2010 as Ex.PW-4/15; original receipt issued by Sh.Aaryavarat Ghosala dated 19.01.2009 as Ex.DW-4/16, original receipt dated 1665 of sale of vegetables as Ex.DW-4/17; original receipt bearing no.1241 of sale vegetables as Ex.DW-4/18; original receipt bearing no.1222 of sale vegetables dated 12.04.2010 as Ex.DW-4/19; Original receipt bearing no.5045 of sale vegetables dated 01.02.2010 Ex.DW-4/20; Original receipt bearing no.5054 of sale vegetables dated 01.02.2010 as Ex.DW- 4/21; original receipt bearing no.852 of sale of vegetables dated 08.04.2010 as Ex.DW-4/22; original receipt bearing no.3126 of sale of vegetables dated 2010.2009 as Ex.DW-4/23; original receipt bearing no.2975 of sale vegetables dated 10.10.2009 as Ex.DW-4/24; original receipt bearing no. 5552 of sale vegetables dated 06.09.2010 as Ex.DW- 4/25; original receipt bearing no.3130 of sale of vegetables dated 21.10.2009 as Ex.DW-4/26; original receipt bearing no.2229 of sale of vegetables dated nil is Ex.DW-4/27; original receipt bearing no.549 of sale of vegetables dated 05.04.2010 as Ex.DW-4/28; original saving bank passbook of Gurcharan Singh of account no.90372010010660 issued by Syndicate Bank branch Vijay Nagar, Delhi having entries from year 2007 till 2010 is Ex.DW-4/29; original 9 photographs of the land measuring 28 bighas 16 biswa and 7 bigha 4 biswas as Ex.DW-4/30.
Thereafter, D.E. was closed.
7. I have heard Ld. Counsels for plaintiff as well as Ld. Counsels for defendant no.-1, 2 & 4 and I have perused the record carefully.
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 18/368. My findings on the issues are as under:-
ISSUE No.-(1):-
Whether the present suit filed on behalf of the plaintiff is time- barred u/O 2 Rule 2 CPC?OPD-1,2&4 Onus of proving this issue was upon defendant nos.1, 2 and 4. It has been argued by Counsel for defendant no.1, 2 and 4 that cause of action for filing present suit accrued to plaintiff on 28.08.2000 when plaintiff had sold the suit lands to defendant no.-2 and executed GPA and receipt dated 28.08.2000. It was also argued that plaintiff was well aware about the mutation proceedings and in fact she had appeared before the Tehsildar and made statement giving her no objection for mutation of the suit land in favour of the defendant no.-1 on 07.04.2001. The plaintiff has also sought to challenge the mutation dated 07.04.2001 and has prayed for relief of declaring the order of mutation dated 07.04.2001 as null and void. It was argued that the period of limitation for challenging the mutation is only 30 days under DLR Act and there is no application for condonation of delay.
9. Per contra, Counsel for plaintiff has argued that plaintiff has categorically mentioned in the plaint that she came to know about registration of sale deed and mutation order on 18.04.2001 when the plaintiff through her husband came to know about the illegal and unlawful acts of defendant no.1, 2 & 4 and therefore the suit filed by the plaintiff on 21.07.2001 is within the period of limitation. Article 59 of The Schedule of Limitation Act provides :
"a cause of action to sue accrues to a person only M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 19/36 when fraud comes to the knowledge of the person and a period of limitation starts when the facts entitling the plaintiff to have the instrument cancel first become known to him".
10. In the present case, plaintiff has categorically stated in para no.25 of the plaint that she came to know through her husband on 17.04.2001 about the illegal and unlawful acts of defendant no.1, 2 & 4 for the first time. Hence, the suit filed on 21.07.2001 for seeking cancellation of sale deed, declaration of GPA dated 28.08.2000 as null and void and declaration of mutation order dated 07.04.2001 is well within the period of limitation.
11. Defendants no.1,2 and 4 have also taken an objection in their written statement that the suit is barred under Order 2 Rule 2 CPC. However, Order 2 Rule 2 CPC is applicable only when earlier suit has been decided on merits. The plaintiff has challenged the mutation order dated 07.04.2001 before the revenue authorities but the said application has not been finally decided and the appeal against the order of Tehsildar is stated to be pending adjudication. Hence, the provisions of Order 2 Rule 2 CPC are not applicable to the present set of facts. Further the present suit relates to the relief of cancellation of sale deed dated 05.03.2001 and declaration of GPA dated 28.08.2000 as null and void. The said reliefs cannot be claimed before the revenue courts as they do not have the power to decide these issues. Hence, objection raised by the defendants no.-1, 2 and 4 is rejected being devoid of any merits.
Accordingly, the issue is decided in favour of the plaintiff and M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 20/36 against the defendants.
12. ISSUE NO.(2):-
Whether this court does not have the jurisdiction to try the present suit?OPD-1,2&4.
Onus of proving this is on the defendant no.1,2 and 4. Defendants no.1,2 and 4 have taken preliminary objections in their written statement that prior to the institution of the suit, plaintiff has filed an appeal against the answering defendants in the Court of ADM(West) and the issues raised in this suit are directly in issue in that appeal and the said appeal is pending. It was also stated that the suit is cognizable by a revenue Court and its cognizance by Civil Court is barred. Plaintiff in her replication has denied both the objections and has submitted that the suit is maintainable in the Civil Court.
13. Counsel for the plaintiff has placed reliance on the judgment of Sri Bhagwan Vs. VBM Marketing Estates Pvt Ltd & Anr. 2015(4) CLJ 316(Delhi) (DB) and has argued that under Section 9 of CPC, civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implications by any statutory provisions and conferred on any other tribunal or authority. It was argued that the plaintiff in the present suit has sought the relief of declaration of cancellation of sale deed dated 05.03.2001 and also for decree of damages against the defendants. It was argued that the revenue Court does not have the power or jurisdiction to decide a suit seeking cancellation of GPA having been obtained by fraud or misrepresentation M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 21/36 and in consequence of which, the sale deed had been registered by playing a fraud. It was argued that the issue of fraud and misrepresentation can only be decided by Civil Court. It was argued that the plaintiff has pleaded in the plaint that defendant no.-2 have obtained GPA dated 28.08.2000 from the plaintiff by fraud and misrepresentation and has executed sale deed dated 05.03.2001 in favour of defendant no.1. Therefore, these issues of fraud and misrepresentation cannot be decided by revenue Court.
14. Hon'ble Supreme Court in Shriram Vs. First Additional District Judge(2001) 3 SCC 24 has held that when a recorded tenant holder having prima facie title in his favour and being in possession seeks cancellation of void documents obtained by fraud and impersonation, he need not file a suit for declaration before the Revenue Courts and the Civil Court has jurisdiction to decide such a suit for cancellation and injunction. It was held that the issue of fraud and misrepresentation can only be decided by Civil Court and Revenue Courts are neither equipped nor competent to effectively adjudicate upon allegations of fraud that have overtones of criminality and the Courts really skilled and experienced to try such issues are the Courts constituted under CPC.
15. In the present suit also, the plaintiff has pleaded in the plaint that defendant no.-2 has obtained GPA dated 28.08.2000 from plaintiff by fraud and misrepresentation and has executed sale deed dated 05.03.2001 in favour of defendant no.1. Hence, the suit filed by the plaintiff in Civil Court is maintainable and mere filing of appeal by the plaintiff in the M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 22/36 Court of ADM(West) does not create any bar in trying the present suit. In Ishwar Singh Vs. Suraj Bhan 2016(4) CLJ Delhi 663, it was held that there is no bar of jurisdiction of a Civil Court to decide the issue of transfer of a title of Bhumidhari to transferee as there is no provision in DLR Act or in Delhi Land Revenue Act for deciding the disputes with respect to the transfer of title.
Therefore, in view of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendants.
16. ISSUE NO.(3):-
Whether the Sale Deed dated 05.03.2001 is liable to be canceled, as prayed for in prayer clause-(a) of the plaint?OPP Onus of proving this issue is on plaintiff. The case of plaintiff is that she had purchased suit lands through defendant no.-2. Defendant no.-2 visited house of plaintiff at Cuttack and induced her to sell the suit lands for a sum of Rs.1.10 crore and agreed to pay Rs.60 lacs by demand drafts and for balance Rs.50 lacs he agreed to get three petrol pumps installed in the name of plaintiff, her major son and daughter at Cuttack. It was further stated that defendant no.-2 handed over demand draft of Rs.16 lacs to plaintiff on 01.09.2000 as advance and obtained signatures of plaintiff on receipt dated 28.08.2000 and blank non judicial stamp paper of Rs.50/- and blank papers on the pretext of applying for petrol pumps. Later on plaintiff came to know that defendant no.-2 had fraudulently converted the blank stamp paper into GPA dated 28.08.2000 and on the strength of the said GPA, executed three sale deeds in respect of the suit lands in favour of Gurcharan Singh, Arvind Aggarwal and M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 23/36 Prem Shankar Aggarwal. It is further the case of the plaintiff that the defendant no.-2 also induced the plaintiff to sign the mutation forms and got her statement recorded before the Tehsildar and further manipulated the statement by adding the words "now land may be mutated in favour of the vendee". The plaintiff has claimed that she never executed the GPA dated 28.08.2000 and the receipt dated 28.08.2000 was only towards the advance money paid by the defendant no.-2 towards total sale consideration of Rs.1.10 crore. Defendant no.-2 also failed to make the balance payment and the advance amount paid by him was forfeited by the plaintiff.
17. Case of defendants no.-1,2 and 4 on the other hand is that the plaintiff agreed to sell suit lands to defendant no.-2 for a sum of Rs.16 lacs only. Defendant no.-2 paid the sale consideration by way of demand drafts on 28.08.2000 and the plaintiff executed receipt acknowledging the payment dated 28.08.2000 and further executed GPA dated 28.08.2000 in favour of defendant no.-2 and also agreed to execute the sale deed in favour of the nominees of defendant no.-2. It was denied by the defendants that the sale consideration of the suit land was Rs.1.10 crore.
18. Counsel for the plaintiff and defendant no.1, 2 and 4 have argued on the lines of their cases. Counsel for plaintiff has argued that defendants have not denied that plaintiff is the owner of the suit land. It was further argued that the defendants have not cross examined PW-1 Govind Chand Mishra on paragraphs no. 2,8,9,11 and 14 of his affidavit M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 24/36 and thus testimony of the PW-1 in these paragraphs is admitted by the defendants or atleast there is no rebuttal to the facts stated in these paragraphs. It was argued that PW-1 has categorically denied that sale consideration of the suit land was Rs.16 lacs and has testified that the agreement to sell was for a sum of Rs.1.10 crore. PW-1 has also denied his signatures on the receipt Ex.PW-1/D1/1 and GPA Ex.PW-1/D1/2 and he has categorically testified that the plaintiff had signed the stamp papers in blank and the receipt was only towards the part payment of the sale consideration of the suit land. The PW-1 has also testified that the defendant no.-2 failed to either install the three petrol pumps and further failed to make the balance payment.
19. It was further argued by the Counsel for the plaintiff that a bare perusal of the GPA Ex.PW-1/D1/2 would show that it is a forged and fabricated document. The stamp paper on which GPA has been executed was purchased from Kashmere Gate, Delhi on 28.08.2000. The GPA was executed at Cuttack Orissa on 28.08.2000 and the GPA was notarized at Delhi on 28.08.2000 itself which is humanly impossible. It was argued that the plaintiff never visited Delhi on 28.08.2000 as alleged by defendant no.-2 and therefore it is clear that the GPA Ex.PW-1/D1/2 is a forged and fabricated document and the sale deed executed on the basis of forged and fabricated GPA does not confer any right, title or interest on the defendant no.-1 in respect of 1 bigha of land comprised in Khasra no.46/22/2 min.
20. It was also argued that defendant no.-2 has committed fraud upon M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 25/36 the plaintiff and defendant no.-1 and 2 are in collusion with each other. The mutation has also been obtained by the defendant no.-2 in favour of defendant no.-1 by playing fraud on the plaintiff and tempering with the records of Tehsildar.
21. Counsel for defendant no.1, 2 and 4 has argued that the suit filed by plaintiff is liable to be dismissed. The plaintiff and her husband have admitted the receipt of the sale consideration of Rs.16 lacs and PW-1 has also admitted the signatures of plaintiff on receipt Ex.PW-1/D1/1 and GPA Ex.PW-1/D1/2. It was argued that the plaintiff now cannot take contradictory stand in view of Section 91 and 92 of Indian Evidence Act. It was argued that the plaintiff has executed the GPA on 28.08.2000 after receipt of Rs.16 lacs and original title documents were handed over to defendant no.-1 and physical possession of the suit land was also handed over to defendant no.-2. It was argued that PW-1 has admitted in his cross-examination that plaintiff had put her signatures on the application for obtaining NOC and had given the statement before the Tehsildar.
22. It was argued that the plaintiff has not appeared in the witness box to prove her case and hence the case of the plaintiff has remained unproved and the suit is liable to be dismissed. It was also argued that the receipt Ex.PW-1/D1/1 shows that entire sale consideration had been paid to the plaintiff in advance and nothing was due and outstanding. The plaintiff cannot add or delete to the contents of the receipt Ex.PW-1/D1/1 in view of Section 91 & 92 of Indian Evidence Act. PW-1 has also not filed original Power of Attorney and reliance has been placed on the M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 26/36 judgments:- (1) Vidhyadhar Vs. Manik Rao & Anr. (1999) 3 SCC 573; (2) Ram Prasad Vs. Hari Narayan AIR 1998 Raj.185; (3)Janki Vasudev Bhojwani Vs. Indusind Bank Ltd. 2005(2) SCC 217 to argue that when the plaintiff does not enter into the witness box state her own case and if she does not depose or get cross examined, adverse inference can be drawn against her. It was argued that non examination of the plaintiff is fatal in the present case.
23. Counsel for the plaintiff in rebuttal have argued that receipt Ex.PW-1/D1/1 is not clear as to what was the total sale consideration and the payment received by the plaintiff was only towards advance payment and the plaintiff can explain the same as Section 91 and 92 of Indian Evidence Act do not create any bar to lead oral evidence to explain the contents of the documents. It was also argued that proviso of Section 92 allows oral evidence in this regard. It was argued that non examination of plaintiff in the case is not fatal to the case of the plaintiff as PW-1 Govind Chand Mishra is the husband of the plaintiff and he has remained present during the entire transactions between plaintiff and defendant no.-2 and he has personal knowledge of the facts of the case and thus is competent to depose about the facts. It was also argued that Section 120 of Indian Evidence Act permits the husband to depose for wife and vis a versa and he is the competent witness for the wife in Civil proceedings. In support of his arguments, Counsel for the plaintiff has relied upon the following judgments:- (1)Kailash Devi Vs. Matadeen Aggarwal AIR 2001 Rajasthan 306; (2)Smt.Gangvva Vs. Arjunsa AIR 2001 Karnataka 231; (3)Munni Devi Vs. Sona Devi 2014 Law Suit (All) M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 27/36 3157; (4) Sagar Bhagwat Vs.Kiran 2016 Law Suit (Bom)1174 and (5) A.C. Narayanan Vs. State of Maharashtra AIR 2014 SC 630.
24. I have perused the judgments relied upon by the Counsel for the plaintiff as well as Counsel for the defendant no.1,2 and 4. From the perusal of the judgments, the propositions of law culled out are that a power of attorney is a competent witness for the acts done by him as an attorney and he is also competent witness to depose on the facts which are in his personal knowledge although, he cannot appear as a witness in place of his principal. In the facts of the present case, the husband of the plaintiff is a competent witness to appear on behalf of his wife in view of Section 120 of Indian Evidence Act as all the transactions between the plaintiff and defendants have taken place within his personal knowledge. Hence, non examination of the plaintiff in the present suit will not lead to any adverse inference against her.
25. A careful perusal of the documents relied upon by the parties and evidence led by the parties would show that the GPA dated 28.08.2000 and sale deed dated 05.03.2001 executed in favour of defendant no.-1 by defendant no.-2 are not genuine documents and the same have been executed in suspicious circumstances.
26. At the outset, it may be noted that the execution of the GPA Ex.PW-1/D1/2 itself is surrounded by suspicious circumstances. Plaintiff claims that she had signed on the blank papers at her house at Cuttack(Orissa) whereas defendant no.-2 in his evidence claims that M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 28/36 plaintiff and her husband hand come to his office on 28.08.2000 alongwith the GPA. The GPA shows that the stamp paper was purchased on 28.08.2000 from the stamp vendor at Kashmere Gate Delhi and the GPA was attested by the Notary Public at Delhi on 28.08.2000. However, the opening line of the document reads that GPA was made at Cuttack(Orissa) on 28.08.2000. If at all the GPA was executed at Cuttack, it should have been on the stamp paper from the state of Orissa and not on the stamp paper purchased from Delhi. Similarly, if it was executed at Delhi, there was no occasion to mention that the GPA was made at Cuttack. Further, PW-1 has admitted the signatures of his wife(i.e. plaintiff) on the GPA but he has testified that she had signed on blank stamp paper and blank paper at the instance of the defendant no.-2. PW-1 has also denied his signatures on the GPA as well as the receipt Ex.PW-1/D1/1.
27. It is an admitted fact that statement of the plaintiff was recorded before the Tehsildar on 07.03.2001. A copy of this statement is available on record although the same has not been exhibited. However, in view of the fact that the statement is admitted by both the parties, I am of the considered opinion that the court can look into this statement. Perusal of this statement of plaintiff recorded on 07.03.2001 also shows that the plaintiff in her statement has categorically deposed that she has never executed any document pertaining to the sale/transfer of the abovesaid land(suit lands) nor appointed any GPA except my husband to execute any document for the sale/transfer of this land. This also clearly establishes that plaintiff has not executed the GPA Ex.PW-1/D1/2.
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 29/3628. It is pertinent to mention here that during the course of cross- examination of defendant no.-2 Atma Ram Aggarwal, he was confronted with the certified copy of the chargesheet filed against him and other accused persons in case FIR no.443/2002 filed by the plaintiff Smt Saraswati Mishra. DW-2 in his cross-examination has admitted the filing of the chargesheet against him and claimed that it was the false chargesheet. However, certified copy of the chargesheet Ex.DW-2/P1 shows that during the course of investigation, the police has collected the documents and made inquiries from the stamp vendor as well as the notary public who had attested the GPA Ex.PW-1/D1/2 and it was revealed that the stamp paper was purchased at Delhi but the Notary Public has disclosed that his signatures on the GPA have been forged and forged rubber stamp and seal have been used in the GPA. The signatures of PW-1 Govind Chand Mishra on the GPA Ex.PW-1/D1/2 and receipt Ex.PW-1/D1/1 were also found to be forged by GEQD Shimla as well as FSL Rohini. These circumstances clearly indicate that the documents relied upon by the defendant i.e. receipt Ex.PW-1/D1/1 and GPA Ex.PW- 1/D1/2 are not genuine documents but are forged and fabricated documents and no reliance can be placed on these documents.
29. A perusal of the sale deed dated 05.03.2001 Ex.PW-4/3 executed by defendant no.-2 in favour of defendant no.-1 shows that the sale deed has been executed by defendant no.-2 acting as an attorney of plaintiff on the basis of the GPA Ex.PW-1/D1/2. In view of my findings hereinbefore, that the GPA Ex.PW-1/D1/2 is a forged and fabricated document, the sale deed executed by defendant no.-2 is not a valid M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 30/36 document in the eyes of law as defendant no.-2 was never authorized by the plaintiff to execute the sale deed. Apart from this, perusal of the sale deed Ex.PW-4/3 shows that there are manipulations in the sale deed. On the first page of the sale deed after the words "(hereinafter called the vendor/s)", the following lines have been inserted:-
"through her Gen. Attorney Sh. Atma Ram Aggarwal S/o Sh. Lalta Prasad R/o F-49, Vishal Colony, Nangloi, Delhi, vide G.P.A. dt:28.8.2000"
30. It can be seen from the naked eyes that the aforesaid lines have been inserted later on by using manual typewriter whereas the entire remaining sale deed is typed on computer. This addition/insertion corroborates the version of the plaintiff that the sale deed was executed by defendant no.-2 after the plaintiff refused to execute the sale deed on the ground that she has not been paid the balance sale consideration.
31. Not only this, there are contradictory versions regarding the payment of the sale consideration by defendant no.-1. In the Sale Deed Ex.PW-4/3, it has been mentioned that the land has been sold for Rs.1 lac and vendor has already received the entire sale consideration. However, it is not mentioned in the sale deed if the sale consideration was received in cash or by way of cheque/demand draft or any other mode of payment and the space for the same has been left blank which again gives rise to a suspicion that the sale deed is not a genuine document. The defendant no.-1 in his cross-examination has also testified that he has not made any payment to defendant no.-2 on M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 31/36 05.03.2001 and volunteered that he had made the payment of Rs.3 lac through pay order in favour of the plaintiff on the advise of defendant no.-2 before the execution of the sale deed. He further testified that he does not have any receipt now regarding the payment of Rs.3 lacs to the plaintiff nor he has placed on record the receipt of the said pay order. He also admitted that he has not mentioned this fact in his affidavit Ex.DW- 1/A. This statement of defendant no.-1 creates a doubt as to why defendant no.-1 had paid an amount more than the sale consideration to the plaintiff and that too without obtaining any receipt. DW-1 has also failed to mention either the number of the draft or the date when such payment was made to the plaintiff. This fact also raises a serious doubt that whether any such sale consideration was at all paid by defendant no.-1.
32. Perusal of the chargesheet Ex.DW-2/P1 also shows that during the course of the investigation the original sale deed dated 05.03.2001 Ex.PW-4/3 was also seized by the IO and it was found that the aforementioned lines were typed by manual typewriter. The IO also examined the deed writer Ramdhari Singh Dhankar who admitted that he had typed these three sale deeds on computer but also clarified that addition/correction made later on by manual typewriter were not made by him on the sale deed which again points out to the factum of forgery/manipulation in the sale deed Ex.PW-4/3 and raises serious doubts about its genuineness.
33. From the aforesaid discussion, I am of the considered opinion that the plaintiff has been able to prove by way of preponderance of M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 32/36 probabilities that the sale deed Ex.PW-4/3 dated 05.03.2001 executed by defendant no.-2 in favour of defendant no.-1 is not a genuine and valid document as the same has been executed by defendant no.-2 without any lawful authority from the plaintiff and has no value in the eyes of law. Hence, the sale deed Ex.PW-4/3 is void ab initio and does not confer any right, title or interest in favour of defendant no.-1 and is liable to canceled.
The issue is accordingly decided in favour of the plaintiff and against the defendants.
34. ISSUE NO.(4):-
Whether the Order of Mutation dated 07.4.2001 is liable to be declared as null and void, as prayed for in prayer clause-(b) of the plaint?OPP The onus of proving this issue is on the plaintiff. It is an admitted fact that the plaintiff had already filed an application for cancellation of the mutation order dated 07.04.2001 before the ADM(West) and the said proceedings are pending adjudication. The revenue courts have exclusive jurisdiction to decide the issue of mutation/correction in entries in revenue records and the plaintiff has taken the legal remedies available to her under the law. Hence, I am of the considered opinion that no finding is required to be given on this issue by this Court.
The issue accordingly stands disposed off.
35. ISSUE NO.(5):-
Whether the plaintiff is entitled to decree of permanent injunction, as prayed for in prayer clause-(d) of the plaint?OPP M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 33/36 Onus of proving this issue was on the plaintiff. The plaintiff has averred that the defendants no.1, 2 and 4 and their associates attempted to forcibly and illegally dispossess the plaintiff from the suit lands. On 07.06.2001, defendant no.-1, 2 & 4 alongwith their associates tried to forcibly and illegally cultivate the suit land but due to timely intervention of the husband of the plaintiff, his agent and labourers, defendants could not succeed in dispossessing the plaintiff from the suit land. On 03.07.2001, when the plaintiff and her husband were present on the suit lands, defendant no.1 and 2 threatened them with dire consequences if they dared to challenge their illegal acts and misdeeds in any court of law.
36. The defendants have denied the averments made by the plaintiff. Perusal of the affidavit Ex.PW-1/A filed by the husband of the plaintiff shows that PW-1 has reiterated these facts in para 29 of his affidavit. However, no other witness has been examined by the plaintiff in support of her averments. The plaintiff could have examined the agent of her husband or labourers who were present at the time of incident but none of these witnesses have been examined by the plaintiff nor any complaint to this effect has been proved on record. In the absence of any corroboration, either in oral or documentary form, I am of the considered view that the plaintiff has failed to discharge the onus cast on her.
The issue is accordingly decided against the plaintiff.
37. ISSUE NO.(6):-
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 34/36Whether the plaintiff is entitled to a decree for a sum of Rs.50,000/- as damages, as prayed for in prayer clause (e) of the plaint?OPP.
The onus of proving this issue was placed on the plaintiff. Plaintiff has claimed damages of Rs.50,000/- from the defendants for dragging the plaintiff into unnecessary litigation or for causing mental agony and physical harassment. However, no evidence has been led by plaintiff in support of her claim. Plaintiff has only examined her husband as PW-1 to prove this issue. There is no averment in the entire affidavit of PW-1 stating that plaintiff suffered any physical or mental harassment. Plaintiff has also failed to show as to how the damages have been quantified at Rs. 50,000/-. Hence, in the absence of any evidence in this regard, I am of the considered opinion that the plaintiff has failed to discharge the onus cast on her.
The issue is accordingly decided against plaintiff.
38. RELIEF:-
In view of my findings on the issues hereinabove, the suit is decreed in favour of the plaintiff and against the defendants and the sale deed dated 05.03.2001 executed in favour of defendant no.-1 in respect of sale of agricultural land measuring 1 bigha comprising of Khasra nos. 46/22/2min situated in revenue estate of village Safipur, Ranholla, Delhi, registered on 13.03.2001 vide Registration No.2587 in Addl. Book No.1, Vol. No.9845 on pages 121-124 is declared null and void and is hereby cancelled. Sub-Registrar-II is directed to make necessary endorsement regarding the cancellation of this sale deed in his records.M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 35/36
The suit of the plaintiff is dismissed qua the other reliefs claimed by her.
Plaintiff shall be entitled to proportionate costs of the suit. Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court (ANIL KUMAR SISODIA)
Dated : 28th October 2017 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
M/s Loharu Infrastructures Pvt. Ltd Vs. Prem Shankar Aggarwal & Ors. Page No. 36/36