Delhi District Court
Shri Krishan Kumar vs Smt. Rachna Sharma on 7 June, 2019
CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 199/2016 (517145 / 2016)
In the matter of:
Shri Krishan Kumar
S/o Late Sh. Dayanand
R/o D62, Matiala Extension,
Uttam Nagar, New Delhi
........ Plaintiff
VERSUS
1. Smt. Rachna Sharma
r/o Plot No. 64, Block B,
Pocket3, Sector 17,
Dwarka, New Delhi
Also at :
Flat No. 240, Sarvoday Apartments
Pocket 8, Sector 12, Dwarka,
New Delhi.
2. Sh. Raj Singh,
C34, Ist Floor,
Swami Nagar, Hauz Khas,
New Delhi
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CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
3. Delhi Development Authority,
Through its Vice Chairman/Secretary
Vikas Sadan, INA
New Delhi.
...............Defendants
Date of Institution of Suit : 16.09.2008
Date of transfer to this court : 09.07.2016
Date of reserving judgment : 07.06.2019
Date of pronouncement : 07.06.2019
SUIT FOR DECLARATION, CANCELLATION AND INJUNCTION
JUDGMENT
1. The plaintiff has filed the present suit seeking declaration, cancellation and injunction w.r.to plot of land admeasuring 150 sq. yards, bearing plot no. 16, BlockD, in Bagdola Residential Scheme (hereinafter referred to as the said plot)
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiffs, for filing the present suit are that facts of the case are as under:
Page No. 2 of 47CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 A) It is averred that plaintiff is one of the son of Sh.
Dayanand, who owned a agricultural land in the revenue estate of Village Matiala Uttam Nagar, New Delhi, which was acquired by the government for setting up a colony known as Pappan Kalan and now known as Dwarka. The said land belonging to father of plaintiff was acquired by Government of India by way of Award bearing No. 164/8687 dated 19.09.1986. In lieu thereof, the plaintiffs father applied for allotment of alternative plot of land. The Joint secretary (L&B), Delhi Administration by letter dated 31.07.1989 written to the Deputy Director of the DDA recommended for allotment of plot of land to the father of the plaintiff, in lieu of the acquired land.
B) It is averred that vide letter dated 30.10.1992 issued by the Deputy Director (residential) DDA, the plot of land admeasuring 150 sq. yards bearing plot no. 16, BlockD, in Bagdola residential Scheme was allotted to father of the plaintiff.
C) It is averred that defendant no. 3 DDA vide its letter dated 06.04.1996 sought to cancel the aforesaid allotment alleging that father of plaintiff failed to deposit the demanded amount. It is averred that father of the Page No. 3 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 plaintiff died intestate on 23.11.1996 leaving behind his wife Smt. Mankori Devi (hereinafter referred to as the deceased) and three sons namely Sh. Krishan Kumar (Plaintiff), Sh. Sanjay Sehrawat and Sh. Dharmender Sehrawat. The deceased moved a letter dated 05.02.2002 to defendant no. 3 DDA for restoration of the said plot in her name however, in the meantime Smt. Mankori Devi also died on 28.01.2005.
D) It is averred that after the death of the deceased all her legal heirs relinquished their respective shares in favour of the plaintiff vide registered relinquishment deed dated 27.12.2005. it is averred that since the construction of the suit plot was not complete, defendant no. 3 DDA vide letter dated 03.11.2005 granted extension of time for raising construction over the said plot.
E) It is averred that as the plaintiff is entitled to the said plot and he was in the process for applying mutation of the suit plot in his name, however, plaintiff visited the said plot in the year 2006 and it was noticed that construction was carrying out over the said plot by defendant nos. 1 & 2. Plaintiff met defendant no. 1 who informed that she had been Page No. 4 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 allotted the said plot and she is entitled to raise construction on the said plot. It is averred that defendant no. 3 has maliciously transferred the said plot in the name of defendant no. 1. It is averred that one Sh. Raj Singh is running a racket of transferring plots in lieu of acquired land on the basis of forged documents and in this case also the said plot has been transferred in the name of defendant no. 1 in terms of forged and fabricated documents.
F) It is averred that the plaintiff sent a letter dated 12.05.2007 to defendant no. 1, which was received unserved. Thereafter, a notice dated 26.07.2007 was again sent to defendant no.1, which was duly received by defendant no. 1. The plaintiff through letter dated 07.01.2008 sought information from def. no. 3, which was replied by DDA and DDA/def. no. 3 in its reply has informed that owner of the said plot had transferred the same in the name of defendant no. 1 in her lifetime and DDA had executed a conveyance deed in favour of defendant no. 1. It is averred that defendant no. 1 had acted dishonestly and by virtue of forge and fabricated documents has conveyed the said plot in her name. It Page No. 5 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 is also averred that defendant no. 3 DDA has illegally executed the lease deed in favour of defendant no.1.
3. After filing of the suit, summons for settlement of issues were issued to the defendants. Pursuant to service of summons, appearance was tendered by defendants.
4. Written statement was filed on behalf of defendant no.1 Rachna Sharma, wherein, the contents as mentioned in the plaint were denied in toto. It has been contended that defendant had legally purchased the plot i.e. Plot No. 64, Pocket 3, Bock B Sector 17, Dwarka, New Delhi, from Smt. Premwati Tanwar vide registered agreement to sell dated 11.08.2002 and registered GPA dated 14.08.2002. It is submitted that defendant no. 1 had persued the previous status of the property and it was evident that the deceased was having a perpetual lease deed in respect of the said plot in her favour, who had executed Agreement to sell, general Power of Attorney, Will, SPA, possession letter as well as receipt on 28.02.1997 in favour of Smt. Premwati Tanwar from whom the defendant no. 1 had purchased the said plot. Smt. Premwati Tanwar, in August 2002 had executed the registered sale documents in favour of the defendant no. 1. It is contended that after purchasing the Page No. 6 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 said plot defendant no. 1 had applied for conversion of the said plot from lease hold to free hold and after pursuing all the registered sale documents of the said plot, defendant no. 3/DDA issued a conveyance deed in favour of defendant no. 1 on 15.09.2008. It is contended that during the course of conversion of the said plot plaintiff had also approached defendant no. 3 for taking some objections, w.r.to the said plot, however, defendant no. 3 had called the defendant no. 1 and verified the sale documents and thereafter issued conveyance deed in favour of defendant no.1. It is submitted that plaintiff has no cause of action to file the present suit as his mother (the deceased) had already executed the registered sale documents in favour of Smt. Premwati Tanwar, from whom defendant no. 1 had purchased the said plot, hence the suit deserves to be dismissed.
5. The name of defendant no. 2 already stands deleted from the array of parties.
6. Written statement have also been filed on behalf of the defendant no. 3/DDA whereby it has been contended that the Late Sh. Dayanand, the father of plaintiff applied for an alternate plot of land, which was to be allotted in lieu of land Page No. 7 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 acquired by DDA belonging to the father of the plaintiff under Bagdola Residential Scheme. After the death of Sh. Dayanand the said plot was substituted for the purpose of allotment on 13.12.1996. Accordingly, Plot No. 64, Pocket 3, Bock B Sector 17, Dwarka, New Delhi, was allotted in favour of the deceased vide demand cum allotment letter dated 21.01.1997. Physical possession of the said plot was handed over to the deceased in 11.02.1997. It is contended that DDA had also executed lease deed in favour of the deceased on 24.09.1997. It is submitted that on request of the deceased she was granted extension of time for construction over the said plot upto 31.12.2005. It is contended that Smt. Rachna Sharma, acting as attorney of the deceased applied for conversion of the said plot from leasehold to freehold vide conversion application No. 80217 dated 16.11.2005. She has also deposited the amount of Rs. 26,700/ towards conversion charges besides completion of other formalities. Defendant no.1 also filed an agreement to sale executed by the deceased in favour of Smt. Premwati Tanwar. Subsequently, a registered agreement to sell dated 11.08.2002 allegedly executed by Smt. Premwati Tanwar in favour of defendant no. 1 along with registered power of attorney dated 14.08.2012 was also filed. It is contended that plaintiff vide letter dated 07.02.2006 had applied for mutation of the said plot in his name however, DDA had called the plaintiff as well as defendant no. 1 along with relevant documents, however, Page No. 8 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 plaintiff failed to produce any such original sale documents. Thereafter, conveyance deed dated 15.09.2008 was executed in favour of defendant no. 1
7. Plaintiff has filed replication to the written statement of the defendants, thereby, denying all the allegations and has reiterated its allegations leveled in the suit.
8. On the basis of pleadings of the parties, following issues were framed : Issues
1. Whether the suit property was transferred by Smt. Mankori Devi, mother of the plaintiff in favour of Smt. Premwati Tanwar vide documents dated 28 th February, 2007 ? If so, to what effect ? OPD
2. Whether the suit property was transferred by Smt. Premwati Tanwar to defendant no. 1 vide documents executed on 14th August, 2002 ? If so to what effect ? OPD
3. Whether the plaintiff is entitled to cancellation of the Conveyance Deed executed by defendant no. 3/DDA in favour of defendant no. 1 ? OPP Page No. 9 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
4. Whether the suit is bad for nonjoinder of the necessary parties as alleged in the preliminary objection No. 8 in Written Statement of D2/DDA OPD
5. Relief
9. Thereafter, matter was listed for recording of plaintiffs evidence. In support of his case, the plaintiff examined himself as PW1, and has proved on record further documents :
i) Original letter of allotment dated 31.07.1989 is Ex.
PW1/1,
ii) Correct copy of letter dated 30.10.1992 is Mark A,
iii) Original letter dated 06.04.1994, is Ex. PW1/3,
iv) Original letter dated 05.02.2001, is Ex. PW1/4,
v) Original letter dated 16.07.2002, is Ex. PW1/5,
vi) Original acknowledgement dated 04.07.2002 is Ex.
PW1/6,
vii) Correct copy of the relinquishment deed dated 27.12.2005 is Mark B,
viii) Original letter dated 03.11.2005 is ex. PW1/8,
ix) Correct copy of the receipt dated 07.02.2006 is Mark C
x) Original letter dated 08.03.2007 issued by DDA is Ex.
PW1/10,
xi) Office copy of the legal notice dated 26.07.2007 along with original postal receipt is Ex. PW1/12, Page No. 10 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
xii) Office copy of the legal notice dated 26.07.2007 along with original postal reciept is Ex. PW1/12,
xiii) Response dated 26.09.2007 under RTI is Ex. PW1/13,
xiv) Response dated 06.02.2018 under RTI is Ex. PW1/14,
xv) Response dated 26.09.2007 under RTI is Ex. PW1/15,
10. Plaintiff has also examined PW2 Sh. Layak ram UDC from Land & Building department DDA, who has proved on record the allotment letter dated 31.07.1989 as Ex. PW2/1(already exhibited as Ex. PW1/1).
11. Plaintiff has also examined Sh. B.S. Puniya, ASO as PW3, from DDA who has proved on record the letter dated 06.04.1994 as Ex. PW3/A, letter dated 05.02.2002 as Ex. PW3/B and letters dated 16.07.2002 as Ex. PW3/C, letter dated 03.11.2005 as ex. PW3/D, the guidelines as Ex. PW3/E, and the conveyance deed executed in favour of Rachna Sharma as ex. PW3/F.
12. Plaintiff has also examined Sh. Dharmender Sehrawat, the son of late Sh. Dayanand, brother of the plaintiff as PW4, he has brought on record copy of the death certificate Page No. 11 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 as Mark PW4/A, his ration card as Ex. PW4/2, copy of relinquishment deed dated 27.12.2005 as Mark PW4/3 and copy of the Aadhar Card as Ex. PW4/4. PW5 Smt. Geeta and PW6 Smt. Nirmala both the daughters of the deceased (sisters of plaintiff) has appeared and deposed on the same lines as that of PW4.
13. Thereafter, the matter was listed for recording of defendants evidence. Defendant no. 1 Rachna Sharma is examined as D1W1, she is relying on the following documents :
i) Copy of Recommendation letter dated 13.12.1996 is exhibited as Ex.D1W1/1,
ii) Copy of Allotment letter dated 21.01.1997 is exhibited as Ex.D1W1/2.
iii) Copy of Possession Letter dated 11.02.21997 is exhibited as Ex.D1W1/3.
iv) Copy of cancelled perpetual lease deed is exhibited as Ex.D1W1/4
v) Agreement to Sell dated 26.02.1997 is exhibited as Ex.D1W1/5,
vi) Possession Letter dated 26.02.1997 is exhibited as Ex.D1W1/6
vii) Receipt dated 26.02.1997 is exhibited as Ex.D1W1/7.Page No. 12 of 47
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viii) Registered GPA dated 28.02.1997 is exhibited in favour of Mrs.Premwati Tanwar is exhibited as Ex.D1W1/8
ix) Registered WILL in favour of Smt.Prewmati Tanwar is exhibited as Ex.D1W1/9
x) Registered Special Power of Attorney dated 28.02.1997 in favour of Smt.Premwati Tanwar is exhibited as Ex.D1W1/10,
xi) Agreement to Sell dated 14.08.2002 executed by Smt.Premwati Tanwar is exhibited as Ex.D1W1/11
xii) GPA executed by Smt.Premwati Tanwar dated 14.08.2002 is exhibited as Ex.D1W1/12
xiii) WILL executed by Smt.Premwati Tanwar dated 14.08.2002 is exhibited as Ex.D1W1/13
xiv) Special Power of attorney executed by Smt.Premwati Tanwar dated 14.08.2002 is exhibited as Ex.D1W1/14
xv) Possession letter dated 14.08.2002 executed by Smt.Premwati is exhibited as Ex.D1W1/15 xvi) Receipt dated 14.08.2002 executed by Smt.Premwati is exhibited as Ex.D1W1/16 xvii) Conveyance deed dated 15.09.2008 executed by DDA is exhibited as Ex.D1W1/17 Page No. 13 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
14. Sh. Anil Kumar LDC from the office of Sub Registrar, Vikas Sadan, DDA is examined as D1W2 who has proved on record conveyance deed dated 15.09.2008 (already exhibited as Ex. D1W1/17. Sh. Satainder Sharma is Examined as D1W2 (though D1W2 has already been examined) who has also signed conveyance deed Ex. PW1/17.
15. Sh. Pramod Garg is Examined as D1W3, who is the attesting witness of the documents exhibited as Ex. D1W1/5 to Ex. D1W1/7 and also D1W1/11 to Ex. D1W1/16.
16. The defendant has also examined one Sh. Vivek Yadav, Jr. Asst., as D1W4 from the Office of Sub Registrar, who has proved the documents which has already been exhibited,
i) The GPA dated 28.02.1997 Ex.D1W1/8A (already exhibited as Ex.D1W1/8)
ii) Special Power of Attorney dated 28.02.1997 is exhibited as Ex.D1W1/10A (already exhibited as Ex.D1W1/10),
iii) Will dated 28.02.1997 is exhibited as Ex.D1W1/9A (already exhibited as Ex.D1W1/9), Page No. 14 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
iv) GPA dated 14.08.2002 is exhibited as Ex.D1W1/12A (already exhibited as Ex.D1W1/12)
v) Special Power of Attorney dated 14.08.2002 is exhibited as Ex.D1W1/14A (already exhibited as Ex.D1W1/14)
vi) Agreement to Sell dated 14.08.2002 is exhibited as Ex.D1W1/11A (already exhibited as Ex.D1W1/11)
vii) Will dated 14.08.2002 is exhibited as Ex.D1W1/13A (already exhibited as Ex.D1W1/13)
17. The crossexamination of these witnesses is not mentioned here, for the sake of brevity and the material portion thereof, shall be referred and adverted to, while appreciating the evidence, vizaviz the arguments on behalf of the parties while giving findings on the issues so framed.
18. I have heard Ld counsels for the parties and have carefully gone through the record.
19. Ld. Counsel for the plaintiff has contended that Sh. Dayanand, father of the plaintiff was having an agricultural land, which was acquired and in lieu of said acquisition and Page No. 15 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 alternative plot, vide letter dated 31.07.1989 was allotted in the name of Sh. Dayanand. Father of the plaintiff died on 23.11.1996 leaving behind his legal heirs namely the deceased, three sons and two daughters and thereafter, the said plot was allotted in the name of Sh. Dayanand vide letter dated 31.07.1989 but, lateron, the said plot was reduced to an area of 100 sq. mtr. in terms of letter dated 30.10.1992 and the said plot is substituted in the name of the deceased vide letter dated 13.12.1996 (Ex. D1W1/1) and the said plot was allotted through letter dated 21.01.1997 (Ex. D1W1/2) and through letter dated 05.02.2002, the time for raising construction over the said plot was extended, however, the deceased died on 28.01.2005 and all the other legal heirs of the deceased relinquished their share in the said plot in favour of plaintiff through relinquishment deed dated 27.12.2005. defendant no. 3 through letter dated 03.11.2005 granted extension of time for construction of the said plot, however, plaintiff visited the said plot in the year 2006 and it was noticed that construction was carrying out in the said plot and it transpired that the said plot has been transferred in favour of defendant no. 1 by defendant no. 3 through conveyance deed.
20. The plaintiff sent a letter dated 12.05.2007, which was returned unserved. Thereafter, a notice dated Page No. 16 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 26.07.2007 was again sent, which was duly received by defendant no. 1. The plaintiff through letter dated 07.01.2008 sought information from defendant no. 3, which was replied by DDA but ultimately DDA/defendant no. 3/DDA had executed a conveyance deed in favour of defendant no. 1.
21. It is submitted that as per Clause 6(i)(a) of the allotment letter dated 21.01.1997, the allottee was not entitled to create any interest in the said plot except with the consent of defendant no. 3. However, the deceased allegedly disposed off the said plot without the permission of defendant no. 3 in favour of Smt. Premwati Tanwar in violation of the allotment letter dated 31.07.1989. It is further submitted that as per the guidelines issued by DDA, as per PW2/3, the mutation was transferred in favour of the deceased without any relinquishment deed. This fact is supported by the testimony of PW4, PW5 & PW6. All the PWs 4 & 5 have denied their signatures on the affidavit/NOC filed in the office of the defendant no.3 by the deceased, for seeking mutation of said plot in her favour. The admission of defendants witnesses makes it clear that construction was allowed by defendant no. 3 on the basis of handwritten letter dated 10.10.2005 of the deceased allegedly bearing thumb impression of the deceased. This letter bears the date after death of the deceased, meaning thereby that all the Page No. 17 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 documents submitted by defendant no. 1 with defendant no.3, after death of the deceased were forged and fabricated. The same set of witnesses are attesting witnesses of the sale documents allegedly executed by the deceased in favour of Smt. Premwati Tanwar and, in turn, after five years the sale documents executed by Smt. Premwati Tanwar in favour of defendant no. 1. even defendant no. 3 has overlooked mandatory provisions in as much as death certificate of the deceased is on record, despite that the extension was granted by defendant no. 3 for construction over the said plot on the basis of application bearing thumb impression of the deceased. Defendant no. 3 DDA has also overlooked the fact that defendant no. 1 submitted the documents for conversion of the said plot from leasehold to freehold on 12.09.2008 detailing in Clause 12 regarding completion certificate, meaning thereby that the construction over the said plot was raised by defendant no. 1 after the demise of the deceased by tendering documents in this regard by affixing fake thumb impressions of the deceased.
22. It is further contended that the deceased has executed two documents namely GPA Ex. D1W1/7 & D1W1/9, authorising Smt. Premwati Tanwar to act on her behalf and the deceased died on 28.01.2005, however, Smt. Premwati Tanwar transferred the said plot in the year 2002 in favour of defendant no. 1 on the basis of Will which could not be acted upon.
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23. Per contra Ld. Counsel for defendant no. 1 has filed the written submissions and, interalia, contended that father of the plaintiff died intestate on 23.11.19996 leaving behind his wife (the deceased) and three sons namely Sh.Krishan Kumar (Plaintiff), Sh. Sanjay Sehrawat and Sh. Dharmender Sehrawat. the deceased moved an application for restoration of the said plot in her name to defendant no. 3 through letter dated 05.02.2002 and the deceased died on 28.01.2005. The plaintiff has detailed the said plot with different numbers i.e.
i) In para no. 03 of the plaintiff, the said plot has been mentioned as plot of land measuring 150 sq. yards bearing plot No. 16, Block D in Bagdola residential Scheme, Dwarka, New Delhi
ii) In para no. 21 of the plaintiff, the said plot has been mentioned as plot of land measuring 180 sq. yards bearing plot No. 15, Block D in Bagdola residential Scheme, Dwarka, New Delhi
iii) In prayer of the plaint, the said plot has been mentioned as plot of land measuring 100 sq. yards bearing plot No. 64, Block B3, Sector 17, in Dwarka Residential Scheme, Dwarka, New Delhi, seeking Page No. 19 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 declaration that all the documents in favour of defendant no.1 showing her owner of the said plot as null and void.
Therefore, plaintiff is not sure about the number of the said plot, meaning thereby the pleadings are vague and on this ground, suit deserves to the dismissed.
24. It is further submitted that the deceased had executed the sale documents in respect of the said plot i.e. registered Agreement to Sell, registered GPA, registered Will, possession letter and receipt on 28.02.1997 in favour of Premwati Tanwar (she has not been impleaded as a party by plaintiff) and thereafter, defendant no. 1 purchased the said plot through sale documents from Smt. Premwati Tanwar on 14.08.2002. Defendant no. 1, thereafter, applied for conversion of said plot from lease hold to free hold and defendant no. 3 allowed the same through conveyance deed dated 18.09.2008. Therefore, defendant no. 1 has become owner of the said plot and not only by registered sale documents but also being an ostensible owner by virtue of the provisions of Transfer of Property Act.
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25. It is further submitted that the plaintiff has not challenged the sale documents executed by the deceased in favour of Smt. Premwati Tanwar, nor the said documents are challenged by plaintiff in the crossexamination of D1W1 and in his crossexamination, PW1 has testified that he is not aware whether the said plot was cancelled by DDA nor he is aware that as to when the deceased had sold the said plot. D1W3 and D1W4 has proved the registered sale documents executed by the deceased in favour of Smt. Premwati Tanwar and thereafter, Smt. Premwati Tanwar executed sale documents in favour of defendant no.1. The sale documents of the defendant are registered and same are to be presumed to be genuine and an rebuttable presumption is to be raised against the plaintiff, which plaintiff failed to rebutt. In this regard, reliance has been placed on the following judgments :
a) Maya Devi v. Lalta Prasad (2015) 5 SCC 588,
b) Prem Singh & Ors. v. Birbal & Ors (2006) 5SCC 353,
c) Vimal Chand Ghevarchand Jain & ors v. Ramakant Eknath Jadoo (2009) 5 SCC 713.
26. It is further submitted that the plaintiff is neither aware of the number of the said plot nor aware about the allotment, not plaintiff knew in what circumstances all the sale documents were executed in favour of Smt. Premwati Tanwar and how she happened to be in possession of the original sale documents of the said plot including the possession thereof.
Page No. 21 of 47CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 Therefore, the suit of the plaintiff deserves to be dismissed on this ground alone.
27. It may be relevant to mention here that although the plaintiff has sought three reliefs in the plaint which are as follows:
"(i) Pass a decree of Declaration in favor of the Plaintiff and against the Defendants declaring the Plaintiff to the owner of suit plot being land admeasuring 100 Sq.
Yds., bearing Plot No. 64, Block:B3, Sector 17 in Dwarka Residential Scheme, Dwarka, New Delhi and also declaring that all documents in favour of Defendant No. 1 showing her owner of the aforesaid suit plot are null and void.
(ii) Pass a decree of Cancellation canceling all documents executed by Defendant No.3 and conveying ownership of suit plot ie., being land admeasuring 100 Sq. Yds., bearing Plot No. 64, Block:B3, Sector 17 in Dwarka Residential Scheme, Dwarka, New Delhi Unto Defendant No. 1.
(iii) Pass a decree of Perpetual Injunction in favour of the plaintiff and against the Defendants thereby restraining the Defendants, their servants, agents, employees, officers, representatives or anybody claiming through them or on their behalf from in any manner whatsoever creating third party rights over the suit plot ie., being land admeasuring 100 Sq.Yds., bearing Plot No. 64, Block:B3, Sector 17 in Dwarka Residential Scheme, Dwarka, New Delhi."
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28. However, issues have been framed regarding cancellation of conveyance deed executed by defendant no. 3 in favour of defendant no. 1 and no issues has been framed qua prayer (i) of the plaint. During the course of arguments, Ld. Counsel for the parties have never pressed for any issue regarding the declaration in favour of plaintiff, be framed as per the prayer (i) as detailed above. However, additional issues can be framed at any time, in view of amendment in the of the Code of Civil Procedure, under Order XIV Rule 5 CPC and after amendment, it now be reads as under :
"Power to amend and strike out issues - (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additiona issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to be wrongly framed or introduced"
29. At the very outset it may be noted that first hearing of the suit the court shall, after reading the plaint and the written statement, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders ascertain upon what material propositions of fact or of law the parties are Page No. 23 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Nothing in this rule requires the court to frame and record issues where the defendant at the first hearing of the makes no defence.
30. Rule 3 says that the court may frame the issues from the following materials (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories in the suit; (c) the contents of documents produced by either party. Rule 5 is about power of the court to amend, and strike out issues, which is relevant. The said Rule was deleted by the Amendment Act,1999, but came to be restored verbatim with effect from 01st July, 2002 as per CPC (Amendment) Act, 2002 (22 of 2002), "5. Power to amend, and strike out, issues. (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
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31. It is clear from the aforesaid provisions that the issues are framed on the basis of the pleadings. In terms of Order XIV Rule 1, issues arise when material proposition of fact or law is affirmed by one party and denied by the other. Framing of issues is not adjudicatory process. Nor it is a decisional process in itself. Framing of issues in the trial of the suit or any other proceedings facilitates adjudication and decision in the case. They are framed to identify the crux areas of controversy and focus them. The object of framing issues is to shorten the arena of dispute, and to ascertain the real dispute between the parties. The issues can be framed or altered at any stage. Framing of issues has to be a free exercise so long as the issues stem from the pleadings and bring out the points in controversy. The issues are the points for decision. At the appellate stage they are called points for determinations in terms of Order XLI Rule 31 of the Civil Procedure Code, 1908.
32. The issues do not decide rights of any of the parties. They are framed in course of the trial by the court so as to properly address the controversy for its complete and wholesome decision. The purpose is to pinpoint the essential postulates in the controversy towards which the adjudication and ultimate decision is to be guided. As Rule 4 of Order XIV of CPC describes the issues are of two kindsthe issues of fact and Page No. 25 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 issues of law. Based on contents and pleadings in the plaint and the written statement, says Rule 5 of Order XIV CPC the issues are material propositions of fact or of law the parties are at variance.
33. Decision of the Supreme Court in Makhan Lal Bangal Vs Manas Bhunia, (2001) 2 SCC 652 explained legal contours of the issues and their importance, and it was observed as under :
"The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided."
34. It was further observed, "The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of Page No. 26 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend.
35. It is in the interest of all the parties that appropriate issues encompassing the entire controversy and focusing the material aspects thereof are framed. It was therefore only that in Makhan Lal Bangal (supra), the Supreme Court underlined the role of parties and counsels in assisting the Court in framing proper issues, in the following words, "The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission.
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36. The Court stated further, "The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issuewise would be able to tell precisely how the dispute was decided."
37. Reverting back to the facts of the present case, it may be noted that issue nos. 1 & 2 have already been framed regarding genuineness of registered sale documents in respect of the said plot executed by the deceased in favour of Smt. Premwati Tanwar and thereafter, registered sale documents executed by Smt. Premwati Tanwar in favour of defendant no. 1 and in case both these issues are decided against defendant no.1, then as a natural corollary of the same the plaintiff would be held entitled to be declared as owner of the said plot. Therefore, following additional issue deserves to be framed :
Page No. 28 of 47CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 "Additional Issue No. 6
6. Whether the plaintiff is entitled to the decree of declaration declaring that the registered sale documents executed in favour of defendant no. 1 through which she has claimed ownership over the said plot be declared as null and void and plaintiff be declared as owner of the said plot ?
OPP"
38. Parties have already led evidence regarding the mode, manner, circumstances under which the registered sale documents were executed by the deceased in favour of Smt. Premwati Tanwar and, thereafter, Smt. Premwati Tanwar in favour of defendant no. 1. Furthermore, evidence has been led by parties regarding nature, character and genuineness of the sale documents in question therefore, no further evidence, is required for and I am of the opinion that evidence already on record will suffice the purpose of adjudication of this additional issue so framed above.
My issue wise findings are as under : ISSUE No. 1, 2 & 6
39. These issues are overlapping each other in as much as if issues nos. 1 & 2 are decided in favour of defendant no. 1, the Page No. 29 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 entitlement of the plaintiff seeking declaration of his ownership qua the said plot under additional issue i.e. Issue no. 6, will fall flat.
40. First of all, the question as to whether the deceased had transferred the said plot in favour of Smt. Premwati Tanwar vide registered sale documents dated 28.02.1997. (Wrongly mentioned in issues as 2007, though stood corrected in terms of order dated 09.12.2011) and Smt. Premwati Tanwar transferred the said plot through sale documents dated 14.08.2002 in favour of defendant no. 1 are valid and genuine documents or has been forged and fabricated by the defendants.
41. It may be noted that the deceased had executed the following documents in favour of Smt. Premwati Tanwar:
Name of Document Date Exhibit
Agreement to sell 26.02.1997 Ex.D1W1/5
Possession letter 26.02.1997 Ex.D1W1/6
Receipt 26.02.1997 Ex.D1W1/7
Registered GPA 28.02.1997 Ex.D1W1/8
Registered WILL 28.02.1997 Ex.D1W1/9
Special Power of Attorney 28.02.1997 Ex.D1W1/10
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42. Smt. Premwati Tanwar had executed the
following documents in favour of defendant no. 1 :
Name of Document Date Exhibit
Agreement to Sell 14.08.2002 Ex.D1W1/11
GPA 14.08.2002 Ex.D1W1/12
WILL 14.08.2002 Ex.D1W1/13
Special Power of attorney 14.08.2002 Ex.D1W1/14
Possession letter 14.08.2002 Ex.D1W1/15
Receipt 14.08.2002 Ex.D1W1/16
Conveyance Deed (Executed 15.09.2008 Ex.D1W1/17
by DDA in favour of defendant
no. 1)
43. Last document was conveyance deed executed by defendant no. 3 DDA in favour of defendant no. 1 Ex. DW1/17. D1W3 Sh. Pramod Garg proved the already exhibited documents Ex. D1W1/5 to Ex. D1W1/7 and also D1W1/11 to Ex. D1W1/16, as an attesting witness. In his cross examination nothing could be elicited which may raise doubts regarding credit worthiness of this witness. It may be noted that D1W4 Sh. Vivek Yadav, from the office of Sub Registrar, has also proved the already exhibited registered sale documents executed in favour of Smt. Premwati Tanwar by the deceased and thereafter, Smt. Premwati Tanwar in favour of defendant no.1.
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44. It may be noted that the case of the plaintiff to the extent that the defendant no. 3 (DDA) allotted the plot in the name of Sh. Dayanand, father of the plaintiff and husband of the deceased in terms of Ex. PW1/1 dated 31.07.1989 i.e. Plot admeasuring 150 sq. mtrs. Thereafter, through letter dated 30.10.1992 (Ex. PW1/2) the area of the proposed alternative plot was reduced from 150 sq. yards to 100 sq. mtr. Thereafter, the said plot admeasuring 150 sq. mtr. (which stood reduced to 100 sq. mtrs.) allotted through Ex. PW1/2 was cancelled, vide Ex. PW1/3, The number of the plot as detailed in Ex. PW1/3 is Plot No. 16, Block D, in Bagdola Residential Scheme. The said plot was substituted in the name of the deceased vide letter dated 13.12.1995 (Ex. D1W1/1) and was allotted to the deceased vide letter dated 21.01.1997 (Ex. D1W1/2),the deceased was granted time for raising construction over the said plot vide letter dated 05.02.2002 (Ex. PW1/4) and letter dated 16.07.2002 (Ex. PW1/5) upto 30.06.2002 for the said plot i.e. bearing Plot No. 64, Block B, Pocket3, Sector 17, Dwarka, New Delhi. This factual position has not been controverted by defendants regarding allotment of the said plot in the name of the deceased. In this regard it may also be further clarified that contention of Ld. Counsel for defendant no.1 is that there is discrepancy regarding number of the said plot, however, as discussed above this discrepancy in the plaint might have occurred on account of inadvertence, but such Page No. 32 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 mistake has been corrected in the affidavit of evidence tendered by PW1, PW2 & PW3.
45. It may be noted that the deceased was issued a letter by defendant no. 3 dated 05.02.2002 for construction of the said plot upto 20.06.2002 on payment of Rs. 3054/ as extension fees. Thereafter, defendant no. 3 through letter dated 16.07.2002 (Ex. PW1/3) in response to the letter dated 08.07.2002, written by the deceased granted extension of time for completion of construction over the said plot upto 30.06.2002. The deceased has allegedly written a letter dated 24.10.2005 seeking extension of time from defendant no. 3. The defendant no. 3 in response of letter dated 20.10.2005 informed the deceased through letter dated 03.11.2005 (Ex. PW1/8), that extension of time is granted to the deceased for raising construction in the said plot upto 31.12.2005.
46. As per the defence of defendant no. 1, the deceased has executed the sale documents as detailed in Para No. 41 of this judgment in favour of Smt. Premwati Tanwar and Smt. Premwat Tanwar in turn executed the sale documents in favour of defendant no. 1 as detailed in para no. 42 of this judgment. All these registered documents have been proved Page No. 33 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 by D1W4 being registered in the office of Sub Registrar and apart from that D1W3 has proved the said registered sale documents executed in favour of smt. Premwati Tanwar by the deceased and Smt. Premwati Tanwar, in turn, executed in favour of defendant no. 1 as an attesting witness. The law with regard to the registered documents is well settled and the ratio of case law relied upon by Ld. Counsel for defendant no. 1 namely Prem Singh(Supra), Maya Devi (Supra) & Vimal Chand (Supra), is to the extent that registered sale documents are to be preferred over unregistered documents and registered documents would score over others. It was further mandated that there is presumption of valid execution of registered documents in favour of the vendee and onus of rebuttal of said presumption is on the person who leads evidence to rebut the said presumption.
47. It may be noted that to challenge a document which is a registered document, foundations have to be laid in the pleadings and thereafter, keeping in view the provisions of the Evidence Act, relevant and admissible evidence brought on record. It was opined that till a document, avoidance whereof is sought is got cancelled by a proper declaration, the registered document binds the parties.
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48. There is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie be valid in law. The onus of proof, thus, would be on a person who questions the same. There is a distinction between a void and a voidable document. A person is not required to seek cancellation of a document which is void, but he is required to seek cancellation of the document which is voidable. When a document is valid, no question can arise of its cancellation. Section 31 of the Specific Relief Act, 1963 refers to both void and voidable documents. It provides for a discretionary relief.
49. It is settled law that when in respect of a transaction, a written document is executed, any kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud if made by a party, must specify giving role of each person and all those involved in the fraud must be made a party. Bare allegation that plaintiff had not received the full consideration or that the plaintiff signed the documents without reading the contents there of, is not a ground for cancellation of the sale deed. If the plaintiff chooses not to read the documents, he does so at its own peril.
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50. The defendants have proved the valid execution of these registered sale documents by the deceased in favour of Smt. Premwati Tanwar and by Smt. Premwti Tanwar in favour of defendant no.1. The plaintiff as PW1 has pleaded on one side that allotment in favour of her mother was not as per law in as much as brother and sisters, who appeared as PW4, PW5 & PW6 have denied the execution of NOC in favour of their mother i.e. the deceased. However, on the other hand plaintiff is relying upon the said allotment and seeking cancellation of conveyance deed executed by DDA after declaring all the sale documents executed in favour of defendant no. 1 as null and void. The prayer clause in the plaint is to the extent that plaintiff is seeking declaration of the ownership qua the said plot and cancellation of the all the documents executed by defendant no. 3 conveying the ownership of the said plot to defendant no. 1, meaning thereby that plaintiff has also admitted the legality of allotment of said plot in the name of the deceased. It may be relevant to mention here that at no point of time, plaintiff has challenged the substitution and thereafter allotment of the said plot in the name of the deceased in terms of Ex. D1W1/1 and Ex. D1W1/2 respectively. Therefore, the contention of the plaintiff that allotment in favour of the deceased is illegal, stands rejected.
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51. It may be relevant to observe that plaintiff appeared as PW1 and at no point of time has challenged the sale documents executed by the deceased in favour of Smt. Premwati Tanwar, who has even not been impleaded as a party in the present suit in as much as in the prayer clause plaintiff only sought declaration of ownership of the said plot and further sought declaration that all the documents in favour of defendant no. 1 showing her ownership of the said plot as null and void. But in crossexamination, PW1 has admitted that he did not know whether the deceased has disposed off the said plot. Therefore, plaintiff has not only failed to implead Smt. Premwati Tanwar as defendant but also has not challenged the documents detailed in Para No. 41 of this judgment.
52. D1W1 in her crossexamination has admitted that when she purchased the said plot, it was partly built, thereafter, defendant no. 1 got constructed a room, kitchen and toilet after 23 months of purchasing the said plot after taking permission from defendant no. 3. D1W1 denied having deposited the charges mentioned in Challan Mark A and she further stated that she has never got deposited the amount mentioned in the challan. No suggestion has been given to D1W1 that the registered sale documents executed by the deceased in favour of Smt. Premwati Tanwar were forged and Page No. 37 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 fabricated. No suggestion has been given that the alleged registered sale documents executed by Smt. Premwati Tanwar in favour of defendant no. 1 are also forged and fabricated. Whereas, it is pleaded case of the plaintiff that sale documents are forged and fabricated.
53. From the conjoint reading of deposition of PW1, D1W1, D1W3 & D1W4 it can be safely concluded that the registered sale documents executed by the deceased in favour of Smt. Premwati Tanwar and thereafter, registered sale documents executed by Smt. Premwati Tanwar in favour of defendant no. 1 are genuine documents which plaintiff failed to prove as being forged and fabricated in as much as, except his oral testimony including deposition that of his brothers and sisters, plaintiff has led no evidence even to infer that the registered sale documents were never executed by the deceased in favour of Smt. Premwati Tanwar at any point of time.
54. So far as additional issue no. 6 is concerned, it may be noted that the sale documents in question allegedly executed by the deceased in favour of Smt. Premwati Tanwar and thereafter by Smt. Premwati Tanwar in favour of defendant Page No. 38 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 no. 1 cannot be proved as forged and fabricated by the plaintiff. Therefore, in the absence of any evidence lead to the contrary by the plaintiff, raising doubt regarding veracity or genuineness of the sale documents, plaintiff is not entitled to seek declaration that registered sale documents in favour of defendant no. 1 are null and void and plaintiff is also not entitled to declaration declaring plaintiff as owner of the said plot. Apart from that, plaintiff has not asked for any consequential relief in as much as the plaintiff is out of the possession of the said plot, and therefore, the present suit is barred by proviso appended under Section 34 of the Specific Relief Act, which provides that in case plaintiff is entitled to ask for consequential relief and failed to do so, in that case suit for declaration is not maintainable. These issue nos. 1,2 & 6 are decided in favour of defendant no. 1.
Issue no. 3
55. Now coming to issue no. 3, regarding cancellation of conveyance deed executed by defendant no.3 in favour of defendant no. 1, it can be noted under Section 31 of the Specific Relief Act that documents can be cancelled by any person if he only is successful in establishing three conditions namely :
(i) The instrument is void or voidable against him,
(ii) He may have a reasonable apprehension that such instrument may cause serious injury, Page No. 39 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019
(iii) Court must adjudicate the instrument as void or voidable.
56. It may be noted that whether an instrument can be said to be void and voidable against the person claiming relief under Section 31 of the Specific Relief Act, was considered by Hon'ble Allahabad High Court in Kedar Prasad vs Ganga Prasad And Ors., and it was observed that :
"16. "Section 31 has been expressed in the widest terms. In my judgment, an instrument can be void or voidable even against persons who are not directly parties to it. Where, as here, one of the members of a family or cosharers of a property purports to transfer the whole of the rights in a property belonging to a family or to a body of persons, the other members and persons having a right, title or interest in that property are clearly persons against whom such a transaction would be void or voidable, even though they may not be parties to it. That being so, on the instrument being adjudged void, the Court may, in its discretion, order the instrument to be cancelled. In B. Rajgorhia v. Central Bank of India reported in (1972) 76 Cal WN 807 (858) it has been held that this section is available to a person affected by an instrument even though he may not be a party to the instrument. To the same effect are the decisions reported in (1948) 52 Cal WN 389 (392) and AIR 1934 All 1071 (1072)."
18. "Learned counsel for the appellant cited two decisions, (1) in the case of M. Pillai v. K. Pillai Page No. 40 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 reported in AIR 1960 Mad 1 (FB) and (2) in the case of Niasha Ghose v. Kari Siddek Ali reported in AIR 1963 Assam 4, in support of his submission that a suit under S. 31 of the aforesaid Act could lie only at the instance of a person who is a party to the instrument which is sought to be adjudged void and cancelled. I have perused the two decisions and in my view neither of these two decisions supports the broad proposition which the learned counsel for the appellant has contended for. These cases have clearly held that the relief under Section 31 of the aforesaid Act could be granted only in respect of an instrument which was likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title. On the facts of these cases, the two High Courts held that title of the plaintiff was not in any way affected by the impugned instrument. These cases are, therefore, of no assistance to the appellant. Section 31 of the Specific Relief Act speaks both of void and voidable instrument, and in my judgment, on the facts of the present case, the plaintiffs were clearly entitled to urged that the sale deed in question was void to the extent of their 4/5th share and was liable to be declared void to the extent of their share. As the sale deed had been executed by one of the cosharers purporting to transfer the entire shop in favour of the appellants, the plaintiffs could justifiably entertain an apprehension it would cause serious injury to their rights. I, therefore find no illegality in the decree passed by the lower appellate court adjudging the sale deed as void and in ordering its cancellation to the extent of the share of the plaintiffs."
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57. Therefore, the plaintiff has challenged the registered sale documents executed by the deceased in favour of subsequent vendees and the conveyance deed executed by defendant no. 3 in favour of defendant no. 1. Therefore, plaintiff is entitled to seek cancellation of the conveyance deed executed by defendant no. 3 in favour of defendant no. 1. As such, plaintiff is entitled to seek cancellation of the conveyance deed but in view of my findings on issue nos. 1 & 2, that these documents are duly executed by the deceased, therefore, neither the registered sale documents are void nor voidable, therefore, plaintiff is not entitled to the relief of the cancellation of conveyance deed executed in favor of defendant no. 1 by defendant no. 3 on the basis of documents detailed in Para Nos. 41 & 42 of this judgment.
58. So far as the contention of the plaintiff is concerned, that the said plot could not have been transferred without the prior consent of the lessor /DDA, as per Clause 6(i)
(a) of the policy of the DDA, therefore, transfer of the said plot by the deceased in favour of Smt. Premwati Tanwar is illegal per se, suffice it to say that it is in between the defendant no. 3 and defendant no. 1 and is to be dealt with whether the conveyance deed was to be executed in favour of defendant no. 1 or not. Apart from that the plaintiff has neither pleaded not proved that Page No. 42 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 the conveyance deed has been executed in violation of which provision of the policy framed by DDA. Otherwise also in in case titled as Bharat Singh & Anr. v. Ajay Kumar & anr. a verdict dated 27.5.2014 passed by Hon'ble High Court of Delhi in RSA No. 139/2014, wherein it was observed vide paragraph 13 thereof to the effect:
"13. The second argument urged is that since as per the allotment letter dated 01.7.2000, the appellant could not transfer the property except with the prior permission of the DDA, therefore, the documents being the receipt (Ex.PW1/1) dated 12.8.2000 and agreement to sell (Ex.PW1/2) dated 22.8.2000 are null and void, is in fact really a very specious argument. Firstly, permission is required from the DDA for selling the property and not at the time of entering into an agreement to sell with respect to the property. Secondly, as the first appellate court notes that it is not as if the DDA has refused to grant permission, and that therefore the agreement has become void. The first appellate court notes that there is difference between void and voidable agreement till DDA would refuse to grant permission to sell. and in the present case the agreement is voidable and not void agreement. Thirdly, I would like to state that this argument raised before the Court below and this Court is misconceived and fully covered against the appellants in view of the judgment of the Supreme Court in the case of Chandnee Widya Vati Madden vs. Dr. C.L. Katiai, AIR 1964 SC 978., and which holds that wherever a suit for specific performance is filed on the basis of the agreement to sell which requires a prior permission of the superior lessor such as the DDA, then, the Page No. 43 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 contract is not a void contract but only a contingent contract as per Section 31the Contract Act, 1872. The Supreme Court in the judgment in Chandnee Widya Vati (supra) holds that such suits for specific performance have to be decreed and only after the decree is passed, that issue will come up in execution as to the DDA giving or not giving permission to sell the property. I may note that under Order 21 Rule 32 of CPC, if the defendant refuses to apply for permission to sell from the competent authority such as the DDA, the executing court can appoint a local commissioner to act for and on behalf of the seller/defendant so as to obtain permission from the competent authority. Thus, in my opinion, the second argument urged on behalf of the appellants does not have any merits and is accordingly rejected."
Therefore, this contention is also hereby rejected
59. The another contention of the plaintiff challenging the conveyance deed is that as per the guidelines Ex. PW3/A, framed by defendant no. 3, a registered relinquishment deed along with affidavit of LRs of Late Sh. Dayanand, husband of the deceased were required but despite those documents, the DDA mutated the alternative plot of Late Sh. Dayanand in favour of the deceased. In this regard, at the cost of repetition it may be noted that plaintiff has neither pleaded that the said allotment in favour of the deceased is illegal, per se, therefore, the said allotment made by DDA, rightly or wrongly had attained finality and never challenged by the plaintiff at any point of time.
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60. So far as the contention regarding raising construction over the said plot by defendant no. 1 after purchasing the same, as admitted by her in crossexamination that she has got constructed a room, kitchen and toilet after purchasing of the said plot on deposit of requisite papers as contained at internal page No. 58 of the documents filed by DDA and the affidavit/undertaking dated 24.10.2005 allegedly filed by the deceased and bearing thumb impression of the deceased at another page No. 55 of the DDA documents, suffice it to say that these documents dated 10.10.2005, i.e. the application moved by the deceased with thumb impression seeking extension of time for raising construction over the said plot and is not for raising the construction over the said plot and it bears the address of the deceased. In the same manner, in the affidavit/undertaking of deceased (on internal Page no. 55 of the documents filed by DDA), the deceased has allegedly sought permission that she will pay the enhanced penalty and this documents bears the address of the deceased and not that of defendant no. 1. Apart from that on the said letter dated 17.10.2005, (on internal Page no. 56 of the documents filed by DDA) the deceased already deposited a sum of Rs. 34,369/ on which the DDA had extended the time for construction upto 31.12.2005, and therefore, plaintiff has even failed to led evidence that extension of time for raising construction over the said plot was not moved by the plaintiff or by some other person Page No. 45 of 47 CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 for and on behalf of the deceased in as much as the deceased has died on 28.01.2005 and all the subsequent applications bearing address of the deceased, moved before defendant no. 3 are for seeking extension of time for raising constructions over the said plot.
61. Plaintiff has lead no evidence that such application are bearing the handwriting of defendant no. 1 or some other person, nor the plaintiff has lead evidence that the said application did not bear the thumb impression of the deceased. Therefore, in the absence of any evidence, plaintiff has failed to prove that the application seeking extension of time was moved by defendant no. 1 and not by him or any person on behalf of the deceased. Apart from that, case of defendant no. 1 is that she has moved application for raising construction over the suit property after purchasing the same from Smt. Premwati Tanwar. Therefore, contention of the plaintiff that defendant no. 1 has forged and fabricated the sale documents and subsequent applications as detailed above is devoid of merits and is hereby dismissed. The plaintiff has failed to prove this issue. This issue is decided in favour of defendants.
Page No. 46 of 47CS No. 199/2016 Krishan Kumar v. Rachna Sharma & Ors. DOD : 07.06.2019 Issue No. 4
62. The onus to proves this issues was on the defendant, but no evidence has been lead by defendant in this regard except bald allegations raised in the written statement, therefore issue nos. 4 is decided in favour of the plaintiff and against the defendant.
Relief.
63. In view of my findings on the above said issues, plaintiff has not been able to establish its case against the defendants. The suit filed by the plaintiff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed Announced in the open court on VIJAY by VIJAY KUMAR 07th Day of June, 2019. KUMAR DAHIYA Date: DAHIYA 2019.06.19 10:26:06 +0530 (V.K. DAHIYA) ADDL.DISTRICT JUDGE01 (SOUTH WEST) DWARKA DISTRICT COURTS: NEW DELHI. Page No. 47 of 47