Delhi District Court
Sh. Jai Bhagwan S/O Sh. Brahamanand vs Suresh Kumar S/O Late Sh. Arjun Ram on 13 July, 2012
IN THE COURT OF MS. SEEMA MAINI :
ADJ (3) NORTH: TIS HAZARI COURTS: DELHI
In re :
Civil Suit No. 60/08 (Old No. 1568/97) & 198/10 (Old No. 603/97)
Unique Case ID No. 02404C0013242006 & 02401C0407532010
In the matter of:
1. Sh. Jai Bhagwan S/o Sh. Brahamanand
R/o Village & P.O. Nangal Devat,
New Delhi
....(Plaintiff in suit no. 60/08)
VERSUS
1. Suresh Kumar S/o Late Sh. Arjun Ram
R/o WZ-288, Gali No.8, Shad Nagar,
Palam Colony, New Delhi -110045.
2. Smt. Ram Kumari, W/o Sh. Arjun Ram,
R/o WZ-288, Gali No.8, Shad Nagar,
Palam Colony, New Delhi -110045.
3. Smt. Sushma Rani, W/o Sh. Mahipal
R/o Village Ratanga P.O. Rol. Distt. Nagaur,
Rajasthan.
4. Smt. Usha Kiran, W/o Sh. Kana Ram,
R/o WZ-288, Gali No.8, Shad Nagar,
Palam Colony, New Delhi -110045.
.....(Defendants in suit no. 60/08)
AND
1. Sh. Suresh Kumar, S/o Late Sh. Arjun Ram
R/o WZ-288, Gali No.8, Shad Nagar,
Palam Colony, New Delhi -110045.
.... (Plaintiff in suit no. 198/10)
Suit No. 60/08 & 198/10 page no. 1 of 33
VERSUS
1. Sh. Jai Bhagwan, S/o Sh. Brahamanand,
R/o Village and PO Nangal Dewat,
Delhi.
2. Smt. Sushma Rani, D/o Late Sh. Arjun Ram,
W/o Sh. Mahipal,
R/o Village Ratanga, P.O. Rol,
Distt. Nagaur, Rajasthan.
Date of filing of the suit No. 60/08 : 01.08.1997
Date of filing of the suit No. 198/10 : 02.08.1997
Date of judgment : 13.07.2012
SUIT BEARING CS No. 60/08 FOR SPECIFIC PERFORMANCE OF AGREEMENT DATED
24.12.1996 AND IN ALTERNATE FOR DAMAGES
AND
SUIT BEARING CS NO. 198/10 FOR PERMANENT INJUNCTION
APPEARANCE:
Sh.H.S. Phulka Senior Advocate alongwith Sh. Israil Ali, counsels for plaintiff
Sh. A.S. Mathur , counsel for defendants no. 1 and 2
Sh. Harsh Jaidka, counsel for defendant no.3
Defendant no.4 is already exparte.
JUDGMENT
1. Vide this common judgment, I shall dispose off two suits bearing CS No. 60/08 preferred by the plaintiff Jai Bhagwan against the four defendants, for specific performance of the agreement dated 24.04.1996 and in the alternative for damages and suit bearing CS No. 198/10, instituted by Suresh Kumar, against Sh. Jai Bhagwan Suit No. 60/08 & 198/10 page no. 2 of 33 etc. for permanent injunction, as both the cases relate to the same property and the controversy in both the matters was substantially the same.
2. The facts in brief, as stated in the suit bearing CS No. 60/08, are that the plaintiff and late Sh. Arjun Ram, father of defendants no. 1, 3 and 4 and husband of defendant no .2 entered into an agreement dated 24.12.1996 for the sale of the property measuring 600 sq. yds, bearing plot no. RZ-C 172, Gali No. 14/3, out of Khasra No. 92/9, situated in the revenue estate of village Palam, popularly known as Shad Nagar, Palam Colony, New Delhi-45. It was stated that as per the terms of the agreement to sell, the plaintiff paid a sum of Rs. 10 lac to late Sh. Arjun Ram, which was duly acknowledged by Sh. Arjun Ram and his daughter namely Sushma Rani (defendant no.3), as a witness, who was a witness to the agreement. In the agreement, it was mentioned that, in the event of failure of the first party to comply with the performance of the agreement, the first party shall pay the double of the amount received. It was mentioned that, if the second party failed to perform his part within the specified period of 9 months from the date of entering into the agreement, the amount paid by the second party to the first party, would stand fortified.
3. It was also stated that as per the terms of the agreement, the possession of the vacant plot was also handed over to the plaintiff on the same day i.e on 24.12.1996 while late Sh. Arjun Ram, who was residing all alone with his daughter Sushma Rani (defendant no.3), was left only with the possession of a room and the shed constructed in one corner of the plot. It was also agreed that, before the expiry of 9 months from the date of entering into the agreement, Sh. Arjun Ram shall vacate the possession of the room occupied by him and handover the same to the plaintiff and shall also execute the requisite documents for sale in favour of the plaintiff. The balance amount of the sale consideration was to be paid latest by 24.09.1997 and possession was to be handed over to the plaintiff latest by the said date.
4. It was also stated that the no objection certificate from the competent authority Suit No. 60/08 & 198/10 page no. 3 of 33 and the income tax clearance shall be obtained by Late Sh. Arjun Ram in order to execute the sale deed and other requisite document of ownership in favour of the plaintiff.
5. It was also stated that as per the terms of the agreement, Sh. Arjun Ram had sought 9 months time for executing the sale deed, after accepting the major part of the agreement, after handing over the possession of the vacant land, retaining only the possession of a room and a shed, existing upon the plot, with him, so that he could make some alternative arrangement in the meantime, as he was not having cordial relations with his son (defendant no.1), who was occupying the complete house owned by Arjun Ram in the same locality.
6. It was further stated that late Sh. Arjun Ram died on 06.03.1997 without executing the required documents in favour of the plaintiff, leaving behind the four defendants herein as his legal heirs, who have thus been impleaded as defendants in the instant suit. It was stated that the plaintiff brought a truck and other building material to the suit property on 16.07.1997, in order to construct a gate and one room for his employees to look after the plot in question. Defendant no.3 objected to the driver unloading the bricks and called upon the defendants no. 1 and 2 and they all stopped the driver from unloading the bricks. On a telephonic call from the driver, the plaintiff reached the spot and tried to satisfy the defendants, and requested them to allow him to talk to Arjun Ram, who had entered into the agreement with the plaintiff. The plaintiff, at that point of time, came to know that Arjun Ram had expired on 06.03.1997 and that the defendants have become dishonest as the price of the land in question had seen a steep hike.
7. It was further stated that subsequently the plaintiff also came into the knowledge that a collusive suit has been filed by Sushma Rani (defendant no.3) against her brother Suresh Kumar (defendant no.), despite being well aware of the fact that her late father Arjun Ram, had entered into an agreement with the plaintiff for sale of the Suit No. 60/08 & 198/10 page no. 4 of 33 plot, to which she was also a witness.
8. It was further stated that the plaintiff has always been ready and willing to pay the balance amount of sale consideration, earlier to Late Sh. Arjun Ram and now to the legal heirs of late Sh. Arjun Ram. The plaintiff tried to persuade the defendants in every possible manner to execute the sale documents in his favour, but to no avail. Defendant no.1 even refused to acknowledge the agreement to sell, entered into by his late father and also asked the defendant no.3 to refute her thumb impression upon the agreement to sell.
9. It was also stated that subsequently, the plaintiff approached the defendant no.3 and advised her that in case, she refuted her signatures on the agreement to sell, she would be liable for criminal action and accepting the advice of the plaintiff, Sushma Rani /defendant no.3 withdrew her suit bearing CS No. 100/97, which she had filed at the instigation of defendant no.1. Furthermore, with the help of mediators and persuasion defendant no.3 handed over the possession of one room and the shed on the suit plot, to the plaintiff in the presence of her husband and defendant no.1, after receiving Rs. 50,000/- i.e her 1/4 th share of the balance amount of the consideration. The plaintiff also offered the balance amount of payment to the defendant no.1 and defendant no.2, but they specifically refused to accept the same, threatening the plaintiff with dire consequences.
10. It was further stated that prior to the taking of the possession of the room and the shed from defendant no.3, the plaintiff also conveyed to all the defendants through Sh. Pramod Kumar and Sushma Rani that he has always been ready and willing to perform his part of the contract of making the balance payment and for the sale deed prepared in the office of Sub-Registrar concerned, but defendant no.1 and 2 became dishonest and demanded another Rs. Ten lacs and that too secretly from their sisters i.e defendants no. 3 and 4, without any acknowledgment or receipt in lieu thereto, despite the fact that the original sale deed had been handed over to the plaintiff by late Suit No. 60/08 & 198/10 page no. 5 of 33 Sh. Arjun Ram, at the time of execution of the agreement.
11. It was also stated that the plaintiff has learnt from the locality people that defendant no.1 is trying to sell off the plot in question. As per the provisions of Transfer of Property Act, the plaintiff has every right to retain the possession of the suit land and therefore, the suit. The defendants have no right, title or interest in the suit land, after the delivery of the possession of the suit land to the plaintiff and after accepting the payment of Rs. Ten lac by Sh. Arjun Ram and Rs. 50,000/- by defendant no.3, except to receive the balance amount of consideration from the plaintiff and have the sale deed registered.
12. It was further stated that the cause of action arose in favour of the plaintiff and against the defendants on 14.12.1996 and on several dates thereafter. The value of the suit, for the purpose of court fee and jurisdiction has been assessed to Rs. 12 lacs, on which the requisite court fee has been paid. The property is situated at Delhi and therefore, this Court has the territorial jurisdiction to adjudicate upon the suit. It is prayed that a decree be passed in favour of the plaintiff and against the defendants no. 1 to 4 for specific performance of the agreement and to execute the sale deed and get it registered in the office of the Sub-Registrar in accordance with the agreement dated 24.12.1996. It was also prayed that in the event of defendants failure to execute the registered sale deed, the Court may have execute it and register through the official of the Court. It was also prayed that if the Court is not inclined to pass a decree of specific performance of the agreement, in the alternate a decree for damages to the tune of Rs. 20 lacs be passed in favour of the plaintiff and against the defendants together with interest, at the rate, which the Court deems fit alongwith the costs of the suit.
13. Written statement was filed jointly by the defendants no. 1 and 2, wherein preliminary objections were taken to the effect that the plaintiff has not approached the Court with clean hands and has filed the suit in collusion with defendant no.3 on the Suit No. 60/08 & 198/10 page no. 6 of 33 basis of false and fabricated documents. It was stated that defendant no.3 with a view to harass the answering defendants, had filed the suit bearing CS No. 100/97, titled as Sushma Rani Vs. Suresh Kumar for permanent injunction against the answering defendants, which was ultimately withdrawn by her on 28.07.1997 without even the notice of the same having been given to the answering defendants, who were the sole defendants in the said suit. In the said suit, the defendant no. 3 had falsely claimed to be the owner, in possession of the suit property and no where she mentioned the existence of the alleged agreement, but in her application for withdrawal of the said suit, defendant no.3 tried to create a third party interest in favour of the plaintiff herein by claiming for the first time to be a witness to the alleged agreement to sell dated 24.12.1996 and thereafter, also claimed to have handed over the possession of the suit land to the plaintiff herein. Significantly, there was not even a whisper about the said agreement to sell in the suit no. 100/97 and in reality, though neither the plaintiff nor defendant no.3 are the owner or in possession of the property but only want to unlawfully usurp it.
14. It was stated that from the bare reading of the suit of the plaintiff, it is apparent that absurd allegations have been made since it is not probable that out of the alleged total sale consideration of Rs. 12 lacs as much as Rs. 10 lacs, representing more than 90% of the total amount, has been paid in cash and not a single penny through cheque nor any single document would be executed other than the agreement to sell. It was stated that surprisingly no receipt was made in the sum of Rs.10 lac, despite the fact that defendants no. 1 and 2 were staying with late Sh. Arjun Ram at the time when he was alive. They were neither made a party nor witness nor any NOCs were obtained from them, nor any other series of customary documents namely POA, Registered Will etc were ever executed or registered.
15. It was also stated that the plaintiff alongwith defendant no.3 have deliberately concealed from this Court regarding the pendency of the suit bearing no. 603/97, which was filed by defendant no.1 and wherein an interim order protecting the possession of Suit No. 60/08 & 198/10 page no. 7 of 33 defendant no.1 was passed in the presence of the plaintiff in person and defendant no.3 through counsel. It was stated that ever since July, 1997 the plaintiff was trying to dispossess the defendants no. 1 and 2 from the suit premises initially by taking the help of gundaas and thereafter, with the help of police. The plaintiff have no locus standi to file the suit since he is neither in lawful possession nor does he have any right, title or interest in the suit property and that no agreement dated 24.12.1996 was ever executed between the plaintiff and late Sh. Arju Ram.
16. On merits, the assertions made by the plaintiff regarding the execution of the agreement was denied and it is stated that the agreement dated 24.12.1996 is a false and fabricated document. It was stated that late Sh. Arjun Ram, during his life time has bequeathed the suit property in favour of the defendant no.1 vide the registered Will dated 12.07.1996. It was denied that the plaintiff had paid Rs. 10 lacs to late Sh. Arjun Ram or that he had handed over the possession to the plaintiff on 24.12.1996 or on any other date. It was also denied that late Sh. Arjun Ram was not having cordial relations with defendant no.1 or that he had not been living with him. It was stated that late Sh. Arjun Ram was a man of means and had another house and agricultural land so there was no question of his looking for any alternative accommodation to live in even if the alleged agreement was executed by him. It was stated that defendant no.3 with a view to harass and coerce her brother/defendant no.1, to part with money/suit property has colluded with the plaintiff, a property dealer, to file the present suit. It was however, admitted that late Sh. Arjun Ram had died on 06.03.1997 and h ad left behind all the four defendants as his legal heirs, but it was denied that any agreement to sell dated 24.12.1996 was ever executed or that the defendants were under an obligation to execute the sale documents. It was prayed that the suit of the plaintiff is a false and fabricated one and the same may be dismissed.
17. Replication to the WS of defendants no.1 and 2, was filed by the plaintiff, wherein the averments made in the plaint were reiterated while the allegations levelled by the defendants in their WS were all denied.
Suit No. 60/08 & 198/10 page no. 8 of 33
18. Written statement was also filed on behalf of the defendant no.3 wherein, she admitted that Rs. 10 lac had bee paid by the plaintiff to late Sh. Arjun Ram, which was duly acknowledged by late Sh. Arjun Ram and that she was a witness thereto. She also admitted that, being a witness to the agreement to sell dated 24.12.1996 as well as the receipt of Rs. 10 lac, which was paid to late Sh. Arjun Ram, the payment of Rs. 10 lac was received by late Sh. Arjun Ram in two installments of Rs. Five lac each and that two receipts were executed by him in favour of the plaintiff in the presence of defendant no.3. She also stated that the plaintiff was required to pay the balance amount of Rs. Two lac to late Sh. Arjun Ram, on or before 9 months of the execution of the agreement to sell dated 24.12.1996 and it was agreed that the plaintiff would take the possession of the property before 24.09.1997. She denied that she had objected to the driver of the truck of the plaintiff from unloading the bricks but admitted that she had called the remaining defendants. She further stated that the only objection to the unloading of the bricks was because the plaintiff had not paid the balance amount of Rs. Two lac. She admitted that she had subsequently received the sum of Rs. 50,000/- from the plaintiff being her 1/4th share of the balance amount of Rs. Two lacs.
19. She further admitted that she had filed a suit for permanent injunction against the defendant no.1, but because he wanted to grab the property to the exclusion of defendant no.3 and every one else, although the said property had been agreed to be sold to the plaintiff. She also admitted that the plaintiff had informed the defendant no.3 that the plaintiff was ready and willing to perform his part of the contract and to make the balance payment and had requested for the execution of the sale deed in respect of the suit property. However, it was stated that the balance amount of Rs. 1.5 lac has yet not been paid and therefore, it was stated that the suit of the plaintiff be dismissed, but if the balance sale consideration is paid, the suit of the plaintiff be decreed in terms of the prayer made.
20. Defendant no.4 on service of the notice appeared before the Court, through her Suit No. 60/08 & 198/10 page no. 9 of 33 counsel Sh. Vikrant Arora, who stated that defendant no.4 did not wish to file any written statement and the statement of the Ld. counsel for defendant no.4 was recorded separately, to this effect, by the Predecessor of this Court on 17.02.2004.
21. An application u/o 39 rule 1 and 2 CPC, moved on behalf of the plaintiff, was allowed vide order dated 20.03.2004 and the defendants were restrained from interfering with the plaintiff's possession and use of the suit property and from transferring, alienating or otherwise creating any third party interest in the suit property, during the pendency of the suit.
22. Subsequently, on an application for the grant of a temporary injunction, moved on behalf of the defendants no. 1 and 2, vide order dated 25.10.2005, the plaintiff was also restrained from creating any third party interest or alienating the possession of the suit property, till the disposal of the instant suit.
SUIT NO. 198/10 (Old No. 603/97)
23. The brief facts, as stated in the suit bearing CS No. 198/10 (old no. 603/97) which was filed on 02.08.1997 are that late Sh. Arjun Ram son of Sh. Moti Ram was the permanent resident of RZ-C-172, Gali No. 14/3, Sadh Nagar Part-II, Palam Colony, New Delhi and was the father of the plaintiff and defendant no.2. Late Sh. Arjun Ram was the exclusive and absolute owner of the properties detailed below:-
(i) Agricultural land situated at Village Bhadana Tehsil and District Nagaur (Rajasthan);
(ii) House No. RZ-C-172, Gali No. 14/3, Sadh Nagar, Part-II, Palam Colony, New Delhi-110045;
(iii) House No. WZ-288, Gali No.8, Sadh Nagar, Palam Colony, New Delhi-110045.
24. During his life time, Late Sh. Arjun Ram executed a Will dated 12.07.1996 which was duly registered as document no. 1514, in Additional Book No. III, Volume No. 981, on pages 44 to 47 on 24.04.1997. It was further stated that vide the said Will, Sh.
Suit No. 60/08 & 198/10 page no. 10 of 33 Arjun Ram had bequeathed half of his agricultural land at Nagaur to his wife Smt. Ram Kumari and the remaining half of this agricultural land as well as both the houses were bequeathed in favour of the plaintiff.
25. It was stated that Sh. Arjun Ram died on 06.03.1997 and on his demise the said Will become operative and the half of the agricultural land and he said two houses, became the property of the plaintiff alongwith the other movable and immovable properties, left by his father Sh. Arjun Ram. It was stated that from 06.03.1997 the plaintiff, being the exclusive and absolute owner of the aforesaid properties, is in lawful physical possession of the said properties and hence, defendant no.1 nor defendant no.2 have any right, title or interest with respect to any of the said properties.
26. It was stated that defendant no.2 , who is the real sister of the plaintiff, out of greed and with ulterior motive to coerce and black-mail the plaintiff, to make him to part with some money, filed a false and frivolous suit bearing no. 100/97 for permanent injunction against the plaintiff, falsely alleging therein that she was the owner of house no. RZ-C-172, Gali No. 14/3, Sadh Nagar, Part-II, Palam Colony, New Delhi in which she falsely alleged that she was in possession of the said suit property and claimed a decree of injunction against the plaintiff, to the effect that the plaintiff be restrained from dispossessing her therefrom.
27. The present plaintiff filed his detailed written statement, bringing true facts on record and claiming himself to be the owner and in possession of the suit property. On 28.07.1997 by moving an application, defendant no.2 withdrew the suit, alleging that she was in possession of the vacant plot, which has been agreed to be sold by her father Sh. Arjun Ram, to a bonafide purchaser of the property Sh. Jai Bhagwan i.e defendant no.1, had not approached her after the death of her father and now that he had approached her, she had handed over the possession of the built up constructed house also to him as she was already a witness to the alleged agreement to sell, which was executed by late Sh. Arjun Ram, for a consideration of Rs. 12 lacs, out of which Suit No. 60/08 & 198/10 page no. 11 of 33 Rs. 10 lac was earlier paid to the father of the plaintiff while the remaining Rs. Two lac was yet to be paid and that, she had received her 1/4 th share i.e Rs. 50,000/- of the balance amount.
28. It was further stated that defendant no. 2 was not having any share in the suit property nor had their late father ever executed or entered into any agreement to sell or received any amount of Rs. Ten lac and that all the averments made in the application for withdrawal dated 28.07.1997 for the said case bearing CS No. 100/97, were false and incorrect and had been made with an ulterior motive to cause loss to the plaintiff. The defendant no.2 with ulterior motive to cause harm to her brother colluded with a property dealer i.e defendant no.1 and had forged the agreement allegedly and purporting to be of late Sh. Arjun Ram and now the defendants in collusion with each other, were claiming ownership right in favour of defendant no.1 and threatening to dispossess the plaintiff from the suit property.
29. It was stated that on 30.07.1997, defendant no.1 alongwith 3-4 persons came to the property and he disclosed that he has an agreement, executed by late Sh. Arjun Ram and witnessed by Smt. Sushma Rani, and claimed that he had already paid Rs. 10 lac to late Sh. Arjun Ram and Rs. 50,000/- to Smt. Sushma Rani, and threatened to take the possession. The plaintiff, who was the owner and in actual physical possession of the suit property, was shocked to hear all that and stated that no agreement of any kind was ever executed by his father and that his sister was harassing him with the help of defendant no.1. Defendant no.1, when left the spot threatened to come again with greater force to take possession. The plaintiff immediately complained about the highhandedness and illegal activities of the defendants to the authority, through telegrams on 30.07.1997 itself.
30. It was further stated that the alleged agreement is non-existent and forged one and that the defendant no.1 was playing in the hands of the defendant no.2. The threats of the defendants to dispossess the plaintiff from the said property or to cause Suit No. 60/08 & 198/10 page no. 12 of 33 any interference I the ownership right of the plaintiff in respect thereto are illegal, unauthorized and improper. On 01.08.1997 defendant no.1 again came to the suit property with 7-8 persons and tried to dispossess the plaintiff forcibly, which the plaintiff strongly resisted due to which the defendants could not succeed, but the threats are still existing and hence, the cause of action for filing the present suit arose in favour of the plaintiff and was yet continuing.
31. It was prayed that the decree of permanent injunction be passed in favour of the plaintiff and against the defendants, thereby restraining the defendants, their agents and other family members from dispossessing the plaintiff from the suit property or from selling or alienating the said house by making or forging any document whatsoever.
32. Written statement was filed on behalf of the defendant no.1 Sh. Jai Bhagwan wherein preliminary objections were taken to the effect that the suit was not maintainable and it has been with malafide intention and ulterior motive and that the plaintiff was well aware that late Sh Arjun Ram had entered into an agreement to sell the suit property bearing no. RZ-C 172, Street No. 14/3, out of Khasra No. 92/9 measuring 600 sq. yds, situated in the Revenue Estate of Village Palam popularly known as Sadh Nagar, Palam Colony, New Delhi for a sum of Rs. 12 lac on 24.12.1996 and on receipt of Rs. 10 lac, has also handed over the physical vacant possession of the same to the plaintiff.
33. It was also stated that late Sh. Arjun Ram was residing alongwith his daughter Smt. Sushma Rani in one room and the shed, constructed on one corner of the suit plot. Late Sh. Arjun Ram had sought nine months time to execute the sale deed so that he could made some alternate arrangement of his living, as he was not having cordial relation with his son Sh. Suresh Kumar, where after the possession of the room occupied by him was also to be handed over and the balance amount was to be paid.
Suit No. 60/08 & 198/10 page no. 13 of 33
34. It was also stated that on coming to know about the dishonest intention of the plaintiff, defendant no.1 has filed the suit for specific performance and an interim order had been passed by the Court against the defendants in that case including the present plaintiff however, without mentioning the pendency of the said suit, filed by defendant no.1, has filed the instant suit on 02.08.1997, whereas, defendant no.1 has filed his suit on 31.07.1997.
35. It was further stated that the plaintiff has forged the alleged Will dated 12.07.1996, purportedly executed by late Sh. Arjun Ram. It was submitted that late Sh. Arjun Ram expired on 06.03.1997 and it was after 9 months of his death that, the present plaintiff, as per the agreement to sell, come with a plea that late Sh. Arjun Ram had executed the said alleged Will in his favour. Had there been a Will, executed by late Sh. Arjun Ram, it would have been in the knowledge of the other family members. It was also stated that in suit bearing CS No. 100/97, which was filed by Smt. Sushma Rani, against Sh. Suresh Kumar (plaintiff herein), the plaintiff had filed his written statement, which was furnished on 15.04.1997, in which he himself had mentioned about the alleged Will dated 12.07.1996 being a registered Will, but the said Will dated 12.07.1996 was actually registered on 24.04.1997 i.e after filing of the written statement.
36. It was also stated that the plaintiff herein was never in physical possession of the suit property and that he alongwith his mother was residing at WZ-288, Gali No.8, Sadh Nagar, Palam Colony, New Delhi even during the life time of late Sh. Arjun Ram and was never in possession of the suit property as the plaintiff had strained relations with his father and late Sh. Arjun Ram had even lodged a police complaint against the plaintiff and the plaintiff has not disclosed the true and correct facts in the instant case. Subsequently, it was averred that late Sh. Arjun Ram had entered into an agreement to sell dated 24.12.1996 with respect to the suit property with the answering defendant no.1 and defendant no.2 was a witness thereto, for a total sale consideration of Rs. 12 lac, and that he had already paid a sum of Rs. 10 lac and the possession was handed Suit No. 60/08 & 198/10 page no. 14 of 33 over to him and the sale documents of the suit property and the possession of the remaining portion, which was yet in possession of late Sh. Arjun Ram, was to be handed over after nine month, while the balance payment of Rs. 2 lac was to be paid by defendant no.1 latest by 24.09.1997. The remaining averments made in suit bearing CS No. 60/08 were again laid out.
37. On merits, the assertions made by the plaintiff were denied and all the facts detailed in the preliminary objections and in suit no. 198/10 were reiterated. It was prayed that the instant suit, filed by Sh. Suresh Kumar, be dismissed with cost.
38. The written statement was also filed on behalf of defendant no.2 Smt. Sushma Rani, wherein she denied the assertions, made by the plaintiff, that Late Sh. Arjun Ram having executed any Will in favour of the plaintiff. She rather stated that, the plaintiff had always ill-treated Sh. Arjun Ram and that they were not on talking terms and that late Sh. Arjun Ram was living with defendant no.2, his daughter and he had executed an agreement to sell in respect of the suit property in favour of Sh. Jai Bhagwan and further reiterated the assertions made by defendant no.1 Sh Jai Bhagwan in his written statement in the instant suit as well as the averments made in his suit bearing CS No. 60/08.
39. On the basis of the pleadings of the parties, on 19.10.2000 four issues were framed. In all humility, I may add at this juncture, that the case bearing CS No. 68/08 was a suit for specific performance of the agreement dated 24.12.1996 or in the alternative for grant of damages, but these issues did not find a specific mention in the issues, which were framed and also the vital issues in respect of the connected case bearing CS No. 198/10 (Old No. 603/97), regarding the entitlement of the defendant herein, for a decree of permanent injunction, as prayed for, were not framed. However, the parties have led their evidence in a consolidated manner, to substantiate their pleadings in both the cases and their evidence was led in order to prove the two issues aforementioned, which were though, inadvertently, not framed. Therefore, for Suit No. 60/08 & 198/10 page no. 15 of 33 expediency, two more issues, which are now referred to as issue no. 4-A and 4-B, were framed today i.e on 13.07.2012. The issues are as under:-
1. Whether the suit of the plaintiff is maintainable particularly in view of the pendency of the suit of the defendants no. 1 and 2 (suit No. 603/97) and the interim orders passed therein? OPD
2. Whether the alleged agreement to sell dated 24.12.1996 was executed by late Sh Arjun Ram? OPP
3. Whether the suit is liable to be dismissed since it is based on a forged and fabricated agreement? OPD
4. Whether the suit has been properly valued and the proper Court fee has been paid? OPP 4-A Whether the plaintiff is entitled to a decree of specific performance of the agreement dated 24.12.1996 with a direction to defendants no. 1 to 4 to execute the sale deed and for its registration with the Sub-Registrar concerned, in accordance with agreement dated 24.12.1996 or in the alternative :
Whether the plaintiff is entitled to a decree of damages of Rs. 20 lacs alongwith interest? OPP 4-B Whether the defendant Suresh Kumar (Plaintiff in the connected case), is entitled to a decree of permanent injunction, as prayed for, in his suit? OPD
5. Relief.
40. However, in the case titled "Jai Bhagwan Vs. Suresh Kumar", which was pending in the Hon'ble High Court, at the relevant time, on 17.12.1999, the plaintiff as well as the counsel for defendants no. 1 and 2 stated that the connected case bearing CS No. 603/97 titled as "Suresh Kumar Vs. Jai Bhagwan" was pending in the Court of Ms. Nisha Saxena, the then Ld. CJ, Delhi and prayed that the same be withdrawn and transferred to the Hon'ble High Court. The Hon'ble High Court vide the same order, observed that both the matter may be proceeded together simultaneously by recording of evidence in one, to avoid conflicting judgments and causing complications. However, Suit No. 60/08 & 198/10 page no. 16 of 33 thereafter, the case titled "Suresh Kumar Vs. Jai Bhagwaan & Ors." bearing CS No. 603/97 was withdrawn from the Court of Ld. Civil Judge and was tagged as a connected case alongwith the instant matter bearing CS No. 60/08 titled as "Jai Bhagwan Vs. Suresh Kumar & Ors" which was treated as main case. The evidence was recorded only in the main suit bearing CS No. 60/08.
41. On an appropriate application being moved, the admitted signatures of late Sh.
Arjun Ram were called from the post office, where he was having a saving bank account and the same were sent for comparison with the disputed signatures on the alleged agreement and the report was received in the Court on 13.12.2002, which has been clubbed in the instant case.
42. An application u/s 45 of the Indian Evidence Act, was also moved by defendant no.3, vide which she prayed to the Court that defendant no.1, who was claiming the execution of the Will dated 12.07.1996 in his favour by late Sh. Arjun Ram, be directed to furnish the Will in original in the Court and to seek an opinion of a Forensic Expert regarding the purported signatures of late Sh. Arjun Ram on the alleged Will, being genuine or forged. The said application was allowed by the Predecessor of this Court vide order dated 29.09.2004 and defendant no.1 was directed to place on record the original Will, so that the same be sent to CFSL for comparison of the disputed signatures of late Sh. Arjun Ram with the admitted signatures. The said purported original Will dated 12.07.1996 was filed on record by defendants no. 1 and 2 on 10.02.2005 and the said original Will was also sent to the CFSL for comparison if the purported signatures on the Will belonged to late Sh. Arjun Ram with his admitted signatures, which has been procured from the post office, where he was having a saving bank account.
43. To substantiate his case, the plaintiff Jai Bhagwan, entered the witness box as PW1 and deposed on an affidavit, which he proved as Exh. PW1/A. He testified on oath the averments made by him in the plaint and brought on record the agreement to Suit No. 60/08 & 198/10 page no. 17 of 33 sell dated 24.12.1996 as Exh. PW1/1, the site plan as Exh. PW1/2. He testified that the amount of Rs. 10 lac was paid by him in two installments of Rs. 5 lac each on 20.12.1996 and 24.12.1996 in the presence of defendant no.3 to late Sh. Arjun Ram and the receipts issued by late Sh. Arjun Ram in the presence of defendant no.3 of even dates, were brought on record as Exh. PW1/3 and Exh. PW1/4. Late Sh. Arjun Ram also handed over the original documents of the suit property to the plaintiff at the time of agreement to sell and a copy of the said duly registered Sale Deed dated 15.01.1958 executed by one Sh. Bhagwan Sharma in favour of Sh. Arjun Ram, was brought on record as Exh. PW1/5. The receipt issued by Smt. Sushma Rani (defendant no.3), acknowledging the receipt of her 1/4 th share of Rs. 50,000/- of the balance amount of Rs. 2 lac, is Exh. PW1/6. A copy of the application, moved by defendant no.3 Smt. Sushma Rani in suit no. 100/97, dated 28.07.1997 for withdrawal of the suit, filed by her against defendant no.1, and the order passed thereupon are Exh. PW1/7 and Exh. PW1/8. Certain photographs filed by the plaintiff to establish his possession over the suit property were brought on record as Exh. PW1/9, but its exhibition was objected to and since the negatives were never brought, the photographs are not being treated as proved documents. The photocopy of the passbook of saving bank account of the plaintiff bearing Account No. 3354 also brought on record, but was marked as Exh. PW1/10.
44. PW2 Sh. Vimal Kumar Madan, Sr. Manager from Central Bank of India, entered the witness box and identified the passbook of the plaintiff pertaining to saving bank account no. 3354, which was now proved as Exh. PW1/10. He produced the certified copy of the original ledger book, as per which on 10.07.1995 Rs. 20 lacs was deposited in the bank through cheque and on 18.12.1996 Rs. 10 lac was further deposited. On 24.12.1996 an amount of Rs. 5 lac was withdrawn in cash.
45. After close of PE, defendant no.1 Suresh Kumar, entered the witness box as DW1 and deposed on an affidavit, which he proved as Exh. DW1/A. He testified on oath all the assertions made by him in the written statement. He brought on record the Suit No. 60/08 & 198/10 page no. 18 of 33 certified copy of the plaint, filed by defendant no.3 in suit no. 100/97 as Mark-X, the certified copy of the application for withdrawal of the suit on behalf of defendant no.3 as Mark-Y (already exhibited as Exh. PW1/7) and the copy of the order dated 28.07.1997 as Exh. DW1/3 (already exhibited as Exh. PW1/8). It was deposed that in suit no. 603/97 interim orders were passed by the concerned judge, protecting the possession of the property in his favour and the certified copy of the said orders dated 07.08.1997 and 26.08.1997 were brought on record as Exh. DW1/4 and Exh. DW1/5 respectively. It was further testified that he is the owner of the suit property and the original certificate, issued by MTNL and his ration card were brought on record as Exh. DW1/6 and Exh. DW1/7 respectively.
46. DW2 Sh. S.L. Mukhi, the Principal Scientific Officer, CFSL (since retired), entered the witness box, having been summoned by defendants no. 1 and 2. He deposed that he was working as an Expert since January, 1972. After giving his academic qualification and work experience in Forensic Science, he testified that he had examined the document, referred to the CFSL by the Registrar, Delhi High Court for examination of the questioned signatures with the admitted signatures of the Author. He opened the closed envelop, containing the original document and deposed that the questioned signatures Q-1 & Q-2 on Exh. PW1/1, Q-3 on Exh. PW1/4 and Q-4 on Exh. PW1/3 could not be connected with the writer of the admitted signatures of the Author (Arjun Ram), which were marked A-3, which was the detail of the family members of the Author dated 29.08.1980, admitted signatures A-4 on the CGHS Index Card No. 72527 dated 31.03.1980, the admitted signatures A-5 on the appendix V Addition/deletion in the family card dated 28.05.1981 and the admitted signatures on A- 6, A-7 and A-10 o the withdrawal sip of SBI dated 14.09.1996 and A-8 and A-9 on the withdrawal slip dated 12.11.1995. He gave his opinion after comparison of questioned as well as the admitted signatures and the report was proved by him as Exh. DW2/A.
47. During the course of his cross-examination, he also admitted that certain documents were also referred to the CFSL by the Court of Ms. Shail Jain, Ld. ADJ in Suit No. 60/08 & 198/10 page no. 19 of 33 the instant case and that the questioned signatures Q1-A to Q4-A on the Will dated 12.07.1996 were also compared by him with the admitted signatures of the Author (Arjun Ram), which were marked as A-4 to A-11, through Scientific Comparison.
48. He deposed that the Authorship of the said questioned signatures Q1-A to Q4-A could not be connected with the writer of the admitted signatures. He proved his report in respect of the said Will as Exh. DW2/D-3.
49. No evidence was led by defendant no.2.
50. Defendant no.3 Smt. Sushma Rani, entered the witness box as DW3 and deposed on an affidavit, which she proved as Exh. DW3/A. She placed reliance upon the documents i.e agreement to sell, both the receipts and the application for withdrawal already exhibited as Exh. PW1/1, Exh. PW1/3, Exh. PW1/4 and Exh. PW1/6 respectively. She also testified that her father, late Sh. Arjun Ram had never executed any Will dated 12.07.1996 and the Will dated 12.07.1996 produced by defendant no.1, during the course of proceedings is forged and fabricated and that she had moved an application u/s 340 Cr.P.C for initiating criminal proceedings against defendant no.1. She also placed reliance upon the report of the CFSL dated 16.03.2005 as Exh. DW2/D3. She also testified the signatures of late Sh. Arjun Ram on the agreement to sell at points A and B, stating that she had seen him writing and signing and can identify his signatures.
51. I have heard Sh. H.S. Phulka, Senior Advocate alongwith Sh. Israil Ali, Ld. counsels for plaintiff, Sh. A.S. Mathur, Ld. counsel for defendants no.1 and 2 and Sh. Harsh Jaidka, Ld. counsel for defendant no.3 and have perused the record, scrutinized the evidence adduced and the relevant case law. My issue-wise findings are as under:-
ISSUE No.1:-
"Whether the suit of the plaintiff is maintainable particularly in view of the Suit No. 60/08 & 198/10 page no. 20 of 33 pendency of the suit of the defendants no. 1 and 2 (suit no. 603/97) and the interim orders passed therein? OPD
52. The suit of the plaintiff bearing CS No. 68/08 was filed on 31.07.1997 while the connected case titled Suresh Kumar Vs. Jai Bhagwan was filed on 02.08.1997. The written statement of defendant no.1 Suresh Kumar was filed in the main suit on 10.02.1998 wherein, he claimed that he was in possession of the suit property. After filing of his written statement, an injunction order was passed in favour of the plaintiff and against the defendants, restraining defendant no.1 from interfering in the possession of the plaintiff in suit property. Against this order, defendant no.1 preferred an appeal in the Hon'ble High Court, which was dismissed on 18.07.2004 and a SLP in the Hon'ble Apex Court against the said order of the Hon'ble High Court was again dismissed on 19.11.2004. In the order of the Predecessor of this Court dated 20.03.2004, vide which the interim order was passed in favour of the plaintiff, it was categorically observed that, it was the plaintiff who was in possession and was enjoying the suit property and on this basis, an interim injunction was also passed on the date of filing of the suit before the Hon'ble High Court, vide order dated 05.09.1997. Moreover, it was revealed during the course of evidence that defendant no.3 Smt. Sushma Rani, had earlier filed a suit against the defendant no.1 Suresh Kumar, for injunction, wherein she had categorically stated that it was she who was in possession and that defendant no .1 was never in possession of the suit property as he was living separately from his father Sh. Arjun Ram.
53. In the main case also defendant no.3 categorically stated that the possession of the suit land had been handed over to the plaintiff at the time of agreement to sell and that only one room and a shed, which were in the joint possession of herself and Sh. Arjun Ram, was also handed over by her to the plaintiff at the time of receiving Rs.50,000/- from the balance amount of Rs. Two lac, from the plaintiff, being her 1/4 th share of the money, at the time when she withdrew her suit for permanent injunction bearing no. 100/97, against defendant no.1.
Suit No. 60/08 & 198/10 page no. 21 of 33
54. It is also note worthy that in the written statement, which was filed by defendant no. 1 and 2 jointly on 10.02.1998, they had denied the possession of the plaintiff over the suit property but rather, claimed their own possession, but subsequently, moved an application u/o 6 rule 17 CPC dated 22.01.2008, seeking leave of the Court to amend the written statement, in order to add that the plaintiff had taken forcible possession from them on 08.09.1997. There was not a whisper about this fact in their original written statement, which was filed on 10.02.1998 , that the alleged forcible possession was taken by the plaintiff from defendants no. 1 and 2 on 08.09.1997. The application was dismissed, which was the only fate that it deserved, but also made one thing very clear, that the assertions, which were being made by defendants no. 1 and 2, in the main suit and the assertions made by defendant no.1 in the connected case, were incorrect assertions and that defendant no.1 had not approached the Court with clean hands, while filing the connected case bearing CS No. 603/97. The plaintiff, in the main suit, was admittedly in possession of the suit property and had filed the suit prior in time to the defendant's connected case and his suit was based on concrete documents, which have been brought on record and therefore, his suit is definitely maintainable.
Issue no.1 is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO. 4:-
"Whether the suit has been properly valued and the proper court fees has been paid? OPP
55. From the bare reading of the plaint, it is clear that the suit is for specific performance of the agreement to sell dated 24.12.1996, which was allegedly executed between the plaintiff and late Sh Arjun Ram, the father of defendants no.1, 3 and 4 and husband of defendant no.2, for a total consideration of Rs. 12 lac and the Court fee has been paid. Therefore, the suit has been valued for the purpose of the Court fee Suit No. 60/08 & 198/10 page no. 22 of 33 and jurisdiction at Rs. 12 lac, on which the requisite Court fee has been paid. In the alternative, the plaintiff has sought a decree of damages to the tune of Rs. 20 lac and therefore, he was required to pay the Court fee at Rs. 20 lac, which has been subsequently paid on 18.02.2010. Even otherwise, if damages are granted, the Court can always stall the preparation of the decree, till the deficient Court fee is filed.
In any case, since the requisite court fee has already been paid, the issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUES No. 2 and 3:-
2. "Whether the alleged agreement to sel dated 24.12.1996 was executed by late Sh. Arjun Ram? OPP
3. "Whether the suit is liable to be dismissed since it is based on a forged and fabricated agreement? OPD
56. To discharge the onus of issue no.2, which was placed upon the plaintiff, the plaintiff himself entered the witness box as PW1 and testified on oath, about the agreement to sell dated 24.12.1996, executed by Sh. Aruju Ram, vide which he was agreed to sell the suit property to the plaintiff for a total consideration of Rs. 12 lac. The agreement to sell Exh. PW1/1 has been proved by the plaintiff himself by identifying his signatures and has also been proved by one of the attesting witnesses, Smt. Sushma Rani, who entered the witness box as DW3 and categorically identified her signatures, which she has affixed as a witness to the execution of the agreement to sell, by her father. DW3 also deposed that the total consideration amount for the sale of the suit property was agreed to be Rs. 12 lac and that Rs. 10 lac was paid in two installments of Rs. 5 lac each, on 20.12.1996 and 24.12.1996, vide receipts Exh. PW1/3 and Exh. PW1/4. Both the receipts Exh. PW1/3 and Exh. PW1/4 bears the signatures of late Sh. Arjun Ram and have been witnessed by Smt. Sushma Rani and she has identified her signatures as well as the signatures of her father Sh. Arjun Ram on both the said receipts. She also categorically deposed that after receiving the amount of Rs. 10 lac, her father has handed over the original paper of the property to the plaintiff, and the possession of the property was also handed over by her father to the plaintiff, at the Suit No. 60/08 & 198/10 page no. 23 of 33 time of execution of agreement to sell, except one room and the shed. The said original papers of the property have been produced by the plaintiff as Exh. PW1/5, which shows the purchase of the suit property by late Sh. Arjun Ram from one Sh. Bhagwan Sharma, a factum which is not refuted.
57. The contention raised on behalf of the defendants no. 1 and 2, was to the effect that defendant no.3 Smt. Sushma Rani was in collusion with the plaintiff and was deliberately supporting the plaintiff and that is the reason that the second purported attesting witness was not produced in the witness box by the plaintiff. However, I do not agree with this contention of the Ld. counsel for defendants no. 1 and 2, since the requirement of law is that, any of the attesting witness, may be called in the witness box to prove the execution of a document and it is not mandatory, as per law, that if two witnesses had witnessed the execution of a document, then both of them are to be summoned. The allegation regarding the collusion can be taken up by a defendant against any person or any witness, who does not support the case of the said defendant, but unless there is something concrete and substantive to be inferred from the circumstances and the material brought on record, collusion between a plaintiff and one of the defendants, cannot be logically inferred.
58. It is also to be kept in mind that defendant no.3 is the sister of defendant no. 1 and daughter of defendant no .2 and that she would have more to gain monetarily, if she was denying the agreement, as in that eventuality she would be entitled to 1/4 th share of that property, which belonged to late Sh. Arjun Ram. However, honesty and morality is something that is all pervasive and does not take a back seat when confronted with relationship and so it appears, in the instant case. It was the categorical assertion of defendant no.3 Smt. Sushma Rani that late Sh. Arjun Ram did not have cordial relations with defendant no.1 and therefore, while defendant no.1 was staying with her mother, in another house of Sh. Arjun Ram, Sh. Arjun Ram was staying with defendant no.3 in the suit property and that he desired the sale of the said suit property and had taken 9 months time for execution of the sale deed, after Suit No. 60/08 & 198/10 page no. 24 of 33 receiving the balance amount of Rs. 2 lac , so that he would look for an alternative accommodation.
59. It was the defendant no.3's emphatic assertion that, after execution of the agreement to sell Exh. PW1/1, Late Sh. Arjun Ram had handed over the suit property except one room and shed, to the plaintiff, after he had received Rs. 10 lac from him in two installments of Rs. 5 lac each. She has also stated that at the time of withdrawal of her suit bearing CS No. 100/97, which she had filed against defendant no.1 for permanent injunction, she had received Rs. 50,000/-, out of the balance amount of Rs. 2 lac, and she had handed over the possession of the remaining room and shed, to the plaintiff and this possession, though mischievously denied by the defendants no. 1 and 2, was starkly admitted by the defendants that, the possession of the suit property was with the plaintiff.
60. While challenging the agreement to sell Exh. PW1/1, the defendants no. 1 and 2, firstly challenged on the ground that, his father had never carried any intention whatsoever, of selling out the suit property and that the suit property was bequeathed in his favour by late Sh. Arjun Ram during his life time, vide registered Will dated 12.07.1996. However, he was unable to prove the said Will, as he did not summon any of the two attesting witnesses of the purported Will. He also admitted that none from the family members were present at the time of execution of the Will. He also admitted that he had disclosed about the said Will for the first time in the connected suit as well as in the suit bearing CS No. 100/97, which was filed by defendant no.3 against him and that this Will was disputed by defendant no.3 and that the disputed signatures of late Sh. Arjun Ram, were sent for comparison to the CFSL by the Court, though he refuted the opinion of the CFSL was, that the signatures of the deceased had been traced. Infact, DW2 Sh. S.L. Mukhi from CFSL entered the witness box and proved his report as Exh. DW2/A and deposed that his opinion Exh. DW2/A1 to Exh. DW2/A2, which was in respect of the comparison of the disputed signatures Q-1 to Q-4 on the Will dated 12.07.1996, which were compared with the admitted signatures Suit No. 60/08 & 198/10 page no. 25 of 33 Mark-A-1 to Mark-A-11 of late Sh. Arjun Ram and he categorically opined that the authenticity of the questioned signatures could not be connected with the writer of the admitted signatures. Therefore, the Will could not be proved by defendant no.1, to be a genuine Will, and not precipitating the matter further, suffice it would to observe that the Will was definitely not a genuine and authentic Will.
61. Since the genuineness of the signatures of late Sh. Arjun Ram on the agreement to sell dated 24.12.1996 Exh. PW1/1, were disputed, the same were also sent for comparison to CFSL, to be compared alongwith the admitted signatures of late Sh. Arjun Ram Mark-A-1 to Mark-A-11. The report Exh. DW2/A, which was proved by Sh. S.L. Mukhi, was that the questioned signatures Q-1 to Q-4 and the two receipts Exh. PW1/3 and Exh. PW1/4 , were sent for comparison with the admitted signatures and the report was filed. Sh. S.L. Mukhi categorically deposed that the Authorship of questioned signatures Mark-Q-1 and Q-2 on Exh. PW1/1, Mark Q-3 on Exh. PW1/3 and Mark Q-4 on Exh. PW1/4, could not be connected with the writer of the admitted signatures. However, in his cross-examination, the witness has categorically stated that he had mentioned certain differences, which were observed by him in the questioned signatures and the admitted signatures and that such variations are possible in the signatures of any individual, with the passage of time. He also admitted that such variations may arise by using of different pens and quality of papers and may also come due to the illness of the author of the signatures. He also admitted that due to passage of time, some major variations may occur in the signatures of a person, which makes it impossible to form an exact opinion, due to which reason they generally ask for further material for comparison. He also admitted that if the Author takes the help of someone to put his signatures on the document, due to his illness or any other ground, some differences would occur naturally and would also change the individual characteristics of the writing.
62. In this back drop of the testimony of DW2, if the situation, which is brought forth by defendant no.3, is considered, the well established picture, which emerges is that, Suit No. 60/08 & 198/10 page no. 26 of 33 late Sh. Arjun Ram was terminally ill and this factum has been admitted by all the defendants, including the defendant no.1 in his cross-examination. DW1 has admitted that he is residing at WZ-288, Gali No.8, Sadh Nagar, Palam Colony, New Delhi for the last more than 30 years, while his father late Sh. Arjun Ram, was residing at RZ-C 172, Gali No. 14/3, Sadh Nagar, Palam Colony, New Delhi. He also admitted that his father was residing separately. Though in his cross-examination, he denied that defendant no.3 Smt. Sushma Rani was residing alongwith his father at RZ-C 172, but subsequently, he admitted that on 30.07.1997 when he had filed a case under Succession Act , against the defendant no.3, defendant no.3 was residing at Nithari Village, but before that she was residing at RZ-C 172, Sadh Nagar, Palam Colony, New Delhi. He also went on to admit that defendant no.3 had filed a suit for permanent injunction, against him and his mother in respect of RZ-C 172 and at that time, she was residing at the suit property.
63. Therefore, the factual matrix that comes to the fore is that late Sh. Arjun Ram was staying alongwith his daughter/defendant no.3 Smt. Sushma Rani, at the suit property. He was terminally ill as admitted by the defendants also, he was suffering from Cancer. It is the unrebutted testimony of defendant no.3 that she was taking care of him and that the agreement was executed in her presence and that she had received the money of Rs. 10 lac, when it was paid in two installments of Rs. 5 lac each by the plaintiff and it was handed over to the deceased Arjun Ram. She also categorically stated that since her father had become very weak, she had helped her father by holding his hand when he put his signatures on the agreement to sell as well as both the receipts Exh. PW1/3 and Exh. PW1/4 respectively. This being the case, as per the handwriting expert's opinion of DW2, variations were bound to occur in the signatures on the agreement to sell with the admitted signatures of late Sh. Arjun Ram, which he must have affixed at the time when he was hail and hearty.
64. While extending arguments, Ld. counsel for defendants no. 2 and 3 had drawn the attention of the Court to the suspicious situation, to which the plaintiff came to know Suit No. 60/08 & 198/10 page no. 27 of 33 about the intention of late Sh. Arjun Ram to sell the suit property, as the plaintiff had admitted that some Mistri had told him that late Sh. Arjun Ram was wanting to sell the property and defendant no.3 in her cross-examination, had admitted that she did not communicate the intention of late Sh. Arjun Ram to sell the property, to the plaintiff. It was also pointed out that why would a payment of Rs. 5 lac have been made by plaintiff, even before he had seen the title deed and before the agreement to sell, since as per the plaintiff, first installment of Rs. 5 lac was paid on 20.12.1996 while the agreement was executed on 24.12.1996.
65. However, I am not in conformity with the contentions, which have been raised by the counsel for defendant no.1 and 2. It is to be kept in mind that late Sh. Arjun Ram, the plaintiff and the defendants, were staying in Sadh Nagar and the suit property was also situated at Sadh Nagar, Palam Colony, New Delhi. This area is a semi-rural area, small colony, where word travells by word of mouth. Late Sh. Arjun Ram, as it comes across, was a respected member of the society and as it happens, till date in small localities, that whenever, a person has an intention of selling any property, such a person mentions it to another person and that person further communicates it to someone else and the word therefore, travells by mouth. It is not as if some kind of banner, poster or advertisement is made by the interested seller, intimating to the public at large, his intention to sell his property. This being the prevalent practice, even as on date, in many localities, and even in Urbanized Delhi and the very elite colonies. Therefore, there is no reason to doubt the version of the plaintiff that he came into the knowledge about Arjun Ram's intention to sell his property and therefore, he approached him.
66. The fact that he paid Rs. 5 lac, even before the execution of the agreement to sell , rather speaks vlume about the plaintiff's almighty that he awaited for the payment of the next installment, before the execution of the sale deed, as he had faith in Arjun Ram, that he would not abscond with his money. Therefore, I do not find any dubious or doubtful circumstance, surrounding the execution of the agreement to sell.
Suit No. 60/08 & 198/10 page no. 28 of 33
67. In "Aalamgir Vs. State (2003) 1 SCC 21" , Evidencery value of an handwriting expert has been discussed in detail and it is held that the opinion of the Handwriting Expert can be relied upon when supported by other evidence and due caution has to be exercised and the opinion of the handwriting expert is to be accepted after probe and examination.
68. In "Fakruddin Vs. State 1967, Crl. L.J 1197 (73) SC" and "Jasbir Singh Vs. MCD 2007(98) DRJ 404, Delhi" the Hon'ble High Court has observed that:-
"The best method to prove the handwriting of a person, are direct evidence i.e
(i) by the admission of the person, who write it;
(ii) by the evidence of a witness, who has seen a person writing a document;
(iii) The other mode of proof, no doubt, can be by evidence of a handwriting expert or by the opinion of the Court, while comparing itself, but definitely the direct evidence has an edge over the supremacy of indirect method."
69. In the case in hand, direct evidence by way of testimony of the plaintiff as well as by defendant no.3 has come on record, who have categorically stated that the agreement to sell was executed in presence of defendant no.3 by her late father and that after receiving the amount of Rs. 10 lac, the two receipts Exh. PW1/3 and Exh. PW1/4, were executed, all three documents being witnessed by her. DW-3 has also explained the variation, which has occurred in the handwriting of late Sh. Arjun Ram, as she had held his hand, while he was affixing his signatures. Therefore, I am of the opinion that the agreement to sell dated 24.12.1996 has been substantially proved by the plaintiff, that the agreement to sell dated 24.12.1996 was executed by late Sh. Arjun Ram, which is therefore, a genuine document and not a forged or fabricated one, as alleged by defendants no. 1 and 2.
Issues no. 2 and 3 are accordingly, decided in favour of the plaintiff and against the defendants.
Suit No. 60/08 & 198/10 page no. 29 of 33
ISSUE NO. 4-B:-
"Whether the defendant Suresh Kumar (Plaintiff in the connected case), is entitled to a decree of permanent injunction, as prayed for, in his suit?"OPD
70. The onus to prove this issue was upon the defendant no.1. The relief of a decree of permanent injunction was sought for by the defendant Sh. Suresh Kumar (plaintiff in the connected case) that he was in possession of the suit property and that the plaintiff Jai Bhagwan (defendant no.1 in connected case) and Smt. Sushma Rani (defendant no.2 in the connected case) be restrained from dispossessing the plaintiff from the suit property bearing No. RZ-C 172, Gali No. 14/3, Sadh Nagar, Palam Colony, New Delhi or from selling or alienating the said house by making any forged documents in respect of the said property. He has already admitted that he was not in possession of the suit property, the possession being with late Sh. Arjun Ram and defendant no.3 Smt. Sushma Rani and after execution of the agreement to sell dated 24.12.1996, was handed over to Sh. Jai Bhagwan. The defendant Sh. Suresh Kumar (plaintiff in connected case) has apparently not approached the Court with clean hands and has filed a false suit. Since he was never in possession of the suit property, he is not entitled to the relief of permanent injunction, as prayed for.
Issue no. 4-B is accordingly, decided in favour of the plaintiff Sh. Jai Bhagwan (defendant no.1 in connected case) and against the defendant Sh. Suresh Kumar (Plaintiff in connected case).
ISSUE No. 4-A:-
4-A Whether the plaintiff is entitled to a decree of specific performance of the agreement dated 24.12.1996 with a direction to defendants no. 1 to 4 to execute the sale deed and for its registration with the Sub-Registrar concerned, in accordance with agreement dated 24.12.1996 or in the alternative :
Whether the plaintiff is entitled to a decree of damages of Rs. 20 lacs alongwith interest? OPP Suit No. 60/08 & 198/10 page no. 30 of 33
71. In my findings, on issues no. 2 and 3 above, it has been held that the agreement to sell dated 24.12.1996 is a genuine document, having executed by late Sh. Arjun Ram, in respect of property bearing no. RZ-C 172, Gali No. 14/3, Sadh Nagar, Palam Colony, New Delhi, in favour of the plaintiff Jai Bhagwan for a total consideration of Rs. 12 lac. Out of this amount Rs. 10 lac was received by him in lieu of two receipts Exh.
PW1/3 and Exh. PW1/4, executed by late Sh. Arjun Ram. As per the agreement, the sale deed was to be executed after 9 months on 24 th September, 1997 as late Sh. Arjun Ram had sought 9 months time to look for an alternate accommodation, though he had handed over the possession of the suit property to the plaintiff, while retaining only one room and the shed in the corner of the suit property, where he was living with his daughter Smt. Sushma Rani/defendant no.3.
72. Since no further steps were to be taken by the plaintiff, in the intervening period, there was no reason for any other overt act to be done by him for obtaining the NOC in order to execute the sale deed and other documents of the ownership, in favour of the plaintiff. He came to know about the demise of late Sh. Arjun Ram from defendant no.3 when he was told that defendant no.1 was trying to usurp the suit property and that she had filed a suit bearing CS No. 100/97. He made his offer to pay up the remaining amount and that she took his advise and accepted Rs. 50,000/- which would have been her 1/4th share, being one of the four LRs of deceased Arjun Ram and issued a receipt in lieu thereof Exh. PW1/6. The plaintiff, as per his testimony, also offered the balance amount to defendants no. 1 and 2 but they refused to accept the balance amount and threatened to dispossess the plaintiff from the suit property and hence the instant suit. Exh. PW1/10 comprises of the passbook of Central Bank of India, in respect of the saving bank account no. 3354 pertaining to the plaintiff, which was proved by PW2, who testified the correctness of the statement of account, reflected in the passbook and that the presence of Rs. 20 lac in the account of the plaintiff. Therefore, the intention as well as the availability of the funds with the plaintiff, all along to honor his part of the agreement was definitely present and he has already paid the Suit No. 60/08 & 198/10 page no. 31 of 33 substantial amount of Rs. 10 lac to late Sh Arjun Ram, in two installments of Rs. 5 lac each, on 20.12.1996 and 24.12.1996. Therefore, the plaintiff is definitely entitled to a decree of specific performance of the agreement to sell dated 24.12.19096, which was executed by late Sh. Arjun Ram and after his demise, after receipt of the balance consideration amount, the sale deed and other necessary documents of sale are to be executed by all the four LRs of deceased Arjun Ram.
Accordingly, issue no. 4-A is decided in favour of the plaintiff Sh. Jai Bhagwan and against the defendant Sh. Suresh Kumar.
RELIEF: (In suit no. 198/10)
73. In view of my findings on the above issues, the suit of the plaintiff Sh. Suresh Kumar is dismissed. No orders as to costs. File be consigned to record room.
RELIEF: (In suit no. 60/08)
74. In view of the my findings on the above issues, the suit of the plaintiff Sh. Jai Bhagwan is decreed. However, it is to be kept in mind that the plaintiff had entered into an agreement to sell with late Sh. Arjun Ram, in respect of the suit property, the value of which has zoomed up exorbitantly. Though the substantial consideration of Rs. 10 lac has already been paid to late Sh. Arjun Ram, while Rs.50,000/- has been accepted by defendant no.3 Smt. Sushma Rani one of the four LRs of late Sh. Arjun Ram and only a balance of Rs. 1.5 lac is to be paid, to be distributed amongst defendants no. 1, 2 and 4, but keeping in view the stupendous increase in the value of the property and the fact that clearance and NOC for the execution of the sale deed, may have to be obtained from the relevant authorities, I am of the opinion, that defendants, at this stage, are required to be compensated in terms of money, but definitely not to the prejudice to the plaintiff.
75. In my view, interest of justice would be met, if the plaintiff Jai Bhagwan further pays Rs. Three lac more in all, to all the four defendants, to be shared equally besides the balance amount of Rs. 1.5 lac, which is yet to be paid. The said amount shall be Suit No. 60/08 & 198/10 page no. 32 of 33 paid by the plaintiff Jai Bhagwan vide Demand Draft, within two months from the date of the decree and in the meantime, all the LRs of deceased Arjun Ram, or their assignees, shall get the necessary formalities completed from the competent authority if any, and shall execute the sale deed in respect of the suit property bearing No. RZ- C-172, Gali No. 14/3, Sadh Nagar, Palam Colony, NewDelhi, in favour of the plaintiff, after obtaining the NOC and clearance from the competent authority. In case the defendants refuse to accept the directed amount from the plaintiff, the total amount be deposited in the Court by way of an FDR, in the name of the Court, within the directed period and execution of the sale deed, be carried within three months from today. No orders as to costs. Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in Open Court
today i.e on 13.07.2012 (SEEMA MAINI)
Addl. District Judge-3 : Delhi
Suit No. 60/08 & 198/10 page no. 33 of 33
CS No. 60/08
13.07.2012
Present: Plaintiff in person with counsel Sh. Israil Ali
None for Sh. A.S. Mathur, counsel for defendants no. 1 and 2
Clerk for counsel for deft no. 3
Deft no.4 is already exparte
Several calls have been made since morning, but none has entered an appearance on behalf of defts. no. 1 and 2. The instant matter bearing suit no. 60/08 and the connected suit bearing no. CS No. 198/10 are listed for orders today. However, while pursuing the record, it has transpired that vide order dated 17.12.97, it was ordered by the Hon'ble High Court (where the main case bearing CS No. 60/08 was initially filed) that both the cases were to be proceeded together simultaneously, by recording of evidence, only in one case, in order to avoid conflicting judgments and causing complications. Therefore, though both the cases were tagged together, but other than the said consolidation order dated 17.12.1999, no other order consolidating both the matters could be traced out, so presumably, it was as per the said order of the Hon'ble High Court dated 17.12.1999 that both the matters were clubbed and tried together. However, I humbly observe, that at the time of framing of issues on 19.10.2000, the issues in respect of the connected case were not framed and also the relevant issue regarding relief of specific performance of the agreement or in the alternative for a decree of damages in favour of the plaintiff, was not framed in the main case.
All the parties have led their evidence substantially and have also argued at length and it is not as if any further evidence is to be led. However, for the just disposal and adjudication of both the matters, it is pertinent that the issues relating to the reliefs, which were sought for in both the matters be framed. Accordingly, two appropriate issues, in respect of the main case and connected case, are today framed and are marked as 4-A and 4-B, which are as follows:-
4-A Whether the plaintiff is entitled to a decree of specific performance of the agreement dated 24.12.1996 with a direction to defendants no. 1 to 4 to execute the sale deed and for its registration with the Sub-Registrar concerned, in accordance with agreement dated 24.12.1996 Suit No. 60/08 & 198/10 page no. 34 of 33 or in the alternative :
Whether the plaintiff is entitled to a decree of damages of Rs. 20 lacs alongwith interest? OPP 4-B Whether the defendant Suresh Kumar (Plaintiff in the connected case), is entitled to a decree of permanent injunction, as prayed for, in his suit? OPD No further evidence is required and no further argument is to be extended.
Vide my separate, common judgment of even date, the suit bearing CS No. 198/10 titled "Suresh Kumar Vs. Jai Bhagwan & Ors." is dismissed, without any orders as to costs. The main suit bearing CS No. 60/08 of the plaintiff Sh. Jai Bhagwaan is decreed.
However, it is to be kept in mind that the plaintiff had entered into an agreement to sell with late Sh. Arjun Ram, in respect of the suit property, the value of which has zoomed up exorbitantly though the substantial consideration of Rs. 10 lac has already been paid to late Sh. Arjun Ram, while Rs.50,000/- has been accepted by defendant no.3 Smt. Sushma Rani one of the four LRs of late Sh. Arjun Ram and only a balance of Rs. 1.5 lac is to be paid, to be distributed amongst defendants no. 1, 2 and 4, but keeping in view the stupendeous increase in the value of the property and the fact that clearance and NOC for the execution of the sale deed, if any, may have to be obtained from the relevant authorities, I am of the opinion, that defendants, at this stage, are required to be compensated in terms of money, but definitely not to the prejudice to the plaintiff.
In my view, interest of justice would be met if the plaintiff Jai Bhagwan further pays an amount of Rs. Three lac more, to all the four defendants, to be shared equally besides the balance amount of Rs. 1.5 lac, which is yet to be paid. The said amount shall be paid by the plaintiff Jai Bhagwan vide Demand Draft, within two months from the date of the decree and in the meantime, all the LRs of deceased Arjun Ram, or their assignees, shall get the necessary formalities completed from the competent authority and shall execute the sale deed in respect of the suit property bearing No. RZ-C-172, Gali No. 14/3, Sadh Nagar, Palam Colony, NewDelhi, in favour of the plaintiff, after obtaining the NOC and clearance from the Suit No. 60/08 & 198/10 page no. 35 of 33 competent authority. In case the defendants refuse to accept the directed amount from the plaintiff, the total amount be deposited in the Court by way of an FDR, in the name of the Court, within the directed period and execution of the sale deed, within three months from today. No orders as to costs. Decree-sheet be prepared accordingly. A copy of the judgment be placed in both the files, which be consigned to record room.
(SEEMA MAINI)
Addl. District Judge-3 : Delhi
13.07.2012
Suit No. 60/08 & 198/10 page no. 36 of 33