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[Cites 5, Cited by 0]

Delhi District Court

Albel Singh ( Now Deceased) vs Smt. Premwati W/O Sh. Than Singh on 19 December, 2011

IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JUDGE­05 
                                       CENTRAL, DELHI
                                            Suit No. 683/2010

IN THE MATTER OF:­ 

Albel Singh ( Now deceased)
Through LR 's 
i) Phoolo Devi Wd/o Sh. Albel Singh
ii) Jagdish Singh
iii)Jai Bhagwan
iv)Sri Bhagwan
v) Jagbir Singh
vi)Rakesh Kumar
    All son of Late Sh. Albel Singh
vii)Shakuntala Devi 
    W/o Sh. Dharam Pal
    R/o VPO Lakhu Buana, Distt., Panipat
    Haryana.
                                                                                 ............Plaintiff
VERSUS
Smt. Premwati W/o Sh. Than Singh
R/o H. No. 114, Block­1, Kirti Nagar, Delhi.                                               ......Defendant

Date of Institution: 29.04.2003
Date of reserved for judgment: 14.12.2011
Date of decision: 19.12.2011

SUIT FOR DECLARATION /CANCELLATION OF SALE DEED DT.
18­06­1987 AND ALSO THE MUTATION ORDER DT. 14­02­2000
 AND & PERMANENT INJUNCTION
                            



Suit no. 683/10                                                                                      Page  1    of 16
 JUDGMENT:

­

1. Vide this judgment, I shall disposed of the suit for declaration / cancellation of sale deed dt. 18­06­1987 and also the mutation order dt. 14­02­2000 as null and void and for permanent injunction filed by the plaintiff.

2. The brief facts of the case are as follow :­ The plaintiff in his plaint has submitted that he was landless person of Village Auchandi , Delhi and under 20 economic progress he was alloted land bearing Khasra No. 41/21 measuring 4B­14B situated in Village. Auchandi as an Asami. It is further submitted that after the lapse of five years he was declared as Bhumidar by the revenue Assistant.

3. It is further submitted that in the year 1987, plaintiff wanted to take loan from Sh. Ranbir Singh and defendant Smt Radha on occasion of his daughter's marriage. Plaintiff signed certain written documents in good faith without knowing the contents of the same in order to take the loan from the defendant and her relative. But later on the defendant refused to give any loan . It is further submitted that plaintiff had never handed over the physical possession of the land in dispute to the defendant. It is further submitted that in a precautionary measure the plaintiff moved an Suit no. 683/10 Page 2 of 16 application to Tehsidar , Alipur Delhi not to taken any action on the basis of signed documents of the plaintiff in favour of the defendant as fraud has been committed by the defendants . It is further submitted that the plaintiff kept quit after moving the objection and enquired of copy of Khasra Girdawari in the years 1997­98 that the name on the plaintiff was depicted in the revenue record qua the suit property. It is further submitted that plaintiff obtain the copy of Khatoni from Halqa Patwari on 15­04­2002 and came to know that defendant in collusion with his relative got sale deed executed in their favour of the land in dispute measuring 3Bigha­14Biswas and other land 1Bigha in favour of Smt. Radha on the basis of signed documents on which the signature of plaintiff had been obtained by fraud. It is further submitted that plaintiff field objections on 09­09­1998 against the mutation order dt. 05­05­1998 . It is further submitted that the plaintiff had never sold the property to the defendant therefore, the present suit is filed.

4. On the other hand, the defendant in her written statement has submitted that the plaintiff after becoming Bhumidar of the suit property entered into an agreement with the defendant to sell part of his land measuring 3Bigha­14Biswa to the defendant for Rs. Suit no. 683/10 Page 3 of 16 22,000/­ vide written agreement dt. 26­04­1987 duly signed by plaintiff and witnessed by Sh. Khajan Singh. It is further submitted that the plaintiff received Rs. 2,000/­ as an earnest money vide receipt dt. 26­04­1987 duly signed by plaintiff. It is further submitted that on the request of the plaintiff the sale consideration was increased to 35,000/­ which was duly received by him and plaintiff executed sale deed dt. 18­06­1987 in respect of land measuring 3Bigha­14Biswa out of khasra No. 141/21. It is further submitted that the sale deed were duly signed by the plaintiff before the Sub Registrar and the plaintiff handed over the physical possession of the land to the defendant. It is further submitted that the plaintiff had also handed over all the original title document of the suit property to the defendant i.e. Allotment certificate dt. 06­ 04­1976, L.R. Form 37, Receipt dt. 20­03­1976 and Book under P Form 16 issued by the Tehsildar.

5. It is further submitted that the plaintiff again turned dishonest and got issued a legal notice dt. 11­12­1995 through his Advocate Sh. P.L. Handu. Where it is stated that the defendant by deceitful means taken over the possession of the suit property from the plaintiff.

6. It is further submitted that the on the basis of sale dt . 18­06­1987, Suit no. 683/10 Page 4 of 16 the defendant applied for mutation against which the plaintiff filed objection. But plaintiff agreed and made statement before the Tehsildar to the effect that he had received the consideration amount , handed over the possession of the land and executed sale deed. Therefore, mutation order in the name of defendant was sanctioned on 14­02­2000. It is further submitted that plaintiff further filed false complaint before the Magistrate in the year 2000 which was dismissed as the same was found based on false accusation on upon him. It is further submitted that the suit of the plaintiff is barred by limitation. It is further submitted that this court has no jurisdiction to enquired the legality of the Mutation passed by the revenue department.

7. In reply on merits the defendant has denied that she had agreed to give loan to plaintiff at his request to solemnize the marriage of his daughter in 1987. The defendant denied all other allegation made by the plaintiff and prayed that the suit of the plaintiff be dismissed.

8. The plaintiff has filed the replication to the written statement of defendant. In the replication the plaintiff again denied that he had sold the suit property to the defendant and also denied the fact that he had handed over the possession of the suit property to the defendant.

Suit no. 683/10 Page 5 of 16

9. But in his replication the plaintiff submits that he was under the belief that he had custody of titled document of the suit property i.e Allotment certificate dt. 06­04­1976, L.R. Form 37, Receipt dt. 20­ 03­1976 and Book under P Form 16 issued by the Tehsildar. But later on he expressed doubt as to who has actually taken the said document and he shall take appropriate action against the defendant. The plaintiff had also admitted that he had sent a legal notice dt. 11­12­1995. It is further submitted that the complaint before the Magistrate which was filed by him against the defendant is still pending. The plaintiff had also admitted that he had filed the objection application as a precautionary measure. Plaintiff had admitted that he had filed an appeal against the mutation order dt. 14­02­2000 and denied all the other allegation made by the defendant in her written statement .

10.From the pleadings of the parties, following issues were framed vide order dated 06.05.2004.

i) Whether the plaintiff is entitled for a decree of declaration , declaring the sale deed dt. 18­06­1987 as null and void, as prayed.

? OPP

ii) Whether the plaintiff is entitled for a decree of declaration in respect of Mutation order dt. 14­02­2002, as null and void, as Suit no. 683/10 Page 6 of 16 prayed. ? OPP

iii) Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP

iv) Whether the suit is not maintainable in its present form? OPD

v) Whether the suit of the plaintiff is barred by limitation as claimed? OPD

vi) Whether the suit is barred by the provision of Delhi Land Reforms Act as claimed? OPD

vii) Relief.

11.To prove his case, the plaintiff has examined himself as PW1 and filed evidence by way of affidavit Ex. P­1 where PW1 in his chief has reiterated the fact mentioned in the plaint . The plaintiff has not proved any document in his evidence.

12.On the other hand the defendant has examined Sh. Om Parkash UDC , in the officer of S.R. , Kashmiri Gate as DW1 , who has proved the sale deed dt. 18­06­1987 Register as document No. 7166 , Addition Book No. 1, Volume No. 52 to 40 , page 20 to 22 executed by plaintiff in favour of the defendant of land measuring 3Bigha­14Biswa out of khasra No. 41/21 which is Ex. DW1/1.

13.The defendant has also examined Sh. Khajan Singh as Dw2 , who has also identified the signature of plaintiff, defendant and Suit no. 683/10 Page 7 of 16 himself as witness on Ex. DW1/1.

14. Arguments heard . Record file perused.

15. My issue wise findings are as follow :­ I shall take issue No. 4 first.

16. Issue No. 4. Whether the suit is not maintainable in its present form? OPD The present case has been filed by the plaintiff to declare the sale deed executed by the plaintiff in favour of the defendant qua the suit property , as null and void. The plaintiff in his cross­ examination has admitted that the defendant is in the possession of the suit property . It is also admitted by the plaintiff that defendant has taken the possession of the suit property after 2 years of registry dt. 1987 . But in the present suit the plaintiff has not claimed the possession of the suit property.

17.Section 34 of the Specific Relief Act.

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right , and the court may in its discretion make therein a declaration that he is so entitled , and the plaintiff need not in such suit ask for for any further relief".
Suit no. 683/10 Page 8 of 16
"Provided that no court shall make any such declaration where the plaintiff being able to seek further relief that a mere declaration of title , omits to do so."

The defendant in their written statement has proved the sale deed dt. 18­06­1987 Register as document No. 7166 , Addition Book No. 1, Volume No. 52 to 40 , page 20 to 22 executed by plaintiff in favour of the defendant of land measuring 3Bigha­14Biswa out of khasra No. 41/21 which is Ex. DW1/1.

18.In view of the section 34 of the Specific Relief Act the plaintiff has not claimed the consequential relief of possession while claiming the relief declaration . Therefore, the suit of the plaintiff is not maintainable in its present form. Hence, this issue is decided in favour of the defendant and against the plaintiff.

19. Issue No. 5 Whether the suit of the plaintiff is barred by limitation as claimed? OPD The present suit has been filed by the plaintiff for declaration to delcare the sale deed dt. 18­06­1987 as null and void only on 29­ 04­2003.

The defendant in their evidence has proved the sale deed sale deed dt. 18­06­1987 Register as document No. 7166 , Addition Book No. 1, Volume No. 52 to 40 , page 20 to 22 Suit no. 683/10 Page 9 of 16 executed by plaintiff in favour of the defendant of land measuring 3Bigha­14Biswa out of khasra No. 41/21 which is Ex. DW1/1. But the plaintiff in his cross examination has admitted that the defendant brought him for the purpose of registry . The copy of the said registry dt. 18­06­1987 is mark "A". It means that plaintiff had accompanied the defendant at the time of registration of sale deed dt. 18­06­1987 Ex. DW1/1. Therefore, the plaintiff was having very much knowledge of the sale deed dt. 18­06­1987 Ex. DW1/1 on the same when Ex. DW1/1 was executed i.e. 18­06­ 1987.

20.The defendant in his written statement has stated that plaintiff sent a legal notice dt. 11­12­1995 in respect of the fact that the defendant by deceitful means had taken the possession of the land from the plaintiff . The plaintiff in his replication in reply to written statement has submitted that the defendant has admitted the fact that he has got issued a legal notice dt. 11­12­1995 to the defendant . It means that plaintiff was having the knowledge of the sale deed and handing over the possession of the suit property to the defendant on 11­12­1995 . But even then the plaintiff has not took any action against the defendant in respect of the documents obtained on which the sign of the plaintiff was obtained Suit no. 683/10 Page 10 of 16 by defendant as alleged.

21.Article 56 of the Limitation Act.

The period of limitation to declare the forgery of an instrument issued or registered is three years from when the issue or registration becomes known to the plaintiff.

22.In view of the above discussion, it is proved that plaintiff was having the knowledge of the sale deed dt. 18­06­1987 Ex. DW1/1 on the very same day on which the same was executed . Therefore, the suit for declaration must have been filed within 3 years from the date i.e. 18­06­1987. But the present suit has been filed only on 29­04­2003, which is clearly barred by limitation. Hence this issue is decided in favour of the defendant and against the plaintiff.

23. Issue No. 6. Whether the suit is barred by the provision of Delhi Land Reforms Act as claimed? OPD In the present case, the plaintiff has claimed the relief of declaration to declare the mutation dt. 14­02­2002 in favour of the defendant as null and void.

As per the provision of section 185 of the Delhi Land Reform Act,and section 83 of the Delhi Land Revenue Act. , the civil court has no jurisdiction to change the revenue record . If the plaintiff is Suit no. 683/10 Page 11 of 16 aggrieved by any Mutation order passed by the Tehsildar. He may filed the complaint /appeal against the said mutation order to the higher authority in the revenue department i.e. Registrar . Hence this issue is decided in favour of the defendant and against the plaintiff.

24.Issue No. 1 & 2. i) Whether the plaintiff is entitled for a decree of declaration , declaring the sale deed dt. 18­06­1987 as null and void, as prayed. ? OPP ii) Whether the plaintiff is entitled for a decree of declaration in respect of Mutation order dt. 14­02­2002, as null and void, as prayed. ? OPP The plaintiff has also claimed the relief of declaration to declare the sale deed dt. 18­06­1987 as null and void on the basis that defendant by fraud had obtained the signature in certain documents when he has approached the defendant to take loan on occasion of marriage of her daughter. The plaintiff has in his plaint and affidavit Ex. P­1 has stated that he had signed some written documents on the saying of defendant without going through the contents of the same and the defendants have played fraud and converted those documents in sale deed in respect of the suit property.

25.To prove the fact of fraud, the plaintiff has to bring some strong Suit no. 683/10 Page 12 of 16 evidence against the defendant. But the plaintiff in his entire evidence has even not mentioned the date on which the defendant obtained sign on the said document. Moreover, the plaintiff had expired before his cross­examination be completed. The LR s of the plaintiff had not led any evidence to prove the plaintiff case.

26.Moreover, plaintiff in his cross­examination has admitted that he accompanied the defendant to the office of Sub Registrar at the time of registration of the sale deed dt. 18­06­1987. This fact has not been mentioned by the plaintiff in his plaint. The plaintiff has also admitted that defendant took the possession of the suit property after 2 years of registration of sale deed dt. 18­06­1987. If the plaintiff had not executed any sale deed in favour of the defendant, then why he has handed overt he possession of the suit property to the defendant.

27.The plaintiff has also deliberately concealed the fact that he has handed over the title documents i.e Allotment certificate dt. 06­04­ 1976, L.R. Form 37, Receipt dt. 20­03­1976 and Book under P Form 16 issued by the Tehsildar. Rather in his replication he has stated that he is not aware about the custody of his above mentioned title documents.

The plaintiff failed to give any satisfactory answer in his Suit no. 683/10 Page 13 of 16 replication as how the defendants came into the possession of the title documents of the plaintiff.

On the other defendant have duly proved the sale deed executed by the plaintiff in favour of the defendant which is Ex. DW1/1.

28.From these facts , it is proved that plaintiff had executed sale deed dt. 18­06­1987 Ex. DW1/1 qua the suit property in favour of the defendant voluntarily and no fraud has been played by the defendant upon the plaintiff at the time of execution of the sale deed dt. 18­06­1987. Hence this issue is decided in favour of the defendant and against the plaintiff.

29.Issue No. 3. Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP The plaintiff in his plaint has submitted that he had never handed over the possession of the suit property to the defendant . But in his cross­examination he has admitted that the defendant took the possession of the suit property after 2 years of registration of sale deed dt. 18­06­1987. It means that plaintiff had deliberatly concealed the fact of handing over/changing the possession of the suit property.

30.The Hon'ble Supreme Court of India in the case titled as M/s Suit no. 683/10 Page 14 of 16 Gujarat Bottling Co. Ltd. Vs. Coca Cola Company AIR 1995 SC 2372 has observed that:­ '' U/o 39 of the code of civil procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached , will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. ''

31.The person who seeks equity must do equity. In view of the above discussion, the plaintiff has not come with clean hands , as he has suppressed the material that he had already handed over the possession of the suit property to the defendant. Rather he had claimed that he had never handed over the possession of the suit property to the defendant . Therefore, he is not entitled to relief as prayed. Hence this issue is decided in favour of the defendant and against the plaintiff.

Suit no. 683/10 Page 15 of 16

32.Relief.

The plaintiff has failed to prove his case. Hence the suit of the plaintiff is dismissed.

Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. 

Announced & signed in the                                                          (Gagandeep Jindal)
open court  on 19.12.2011                              Civil Judge/Central­05
                                                                                               Delhi




Suit no. 683/10                                                                                      Page  16    of 16