Delhi District Court
Syed Hassan Iqbal (Now Deceased) vs Syed Masood Anwar on 31 January, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No.9978/16
In the matter of :
1.Syed Hassan Iqbal (Now Deceased) Through his legal heirs:-
(1.A) Azfar Hasan (Son) S/o Late Sh. Hasan Iqbal (1.B) Ms. Sadia Hasan (Daughter) D/o Late Sh. Hasan Iqbal (1.C) Atif Hasan S/o Late Sh. Hasan Iqbal All R/o F-7/473-474, Sultanpuri, C Block, North West Delhi-110086 ..... Plaintiffs Vs.
1. Syed Masood Anwar S/o Late Sh. Syed Amir Ahmed R/o T-33/7 Hajrat Nizamuddin West New Delhi-110013.
2. Mohd. Ali Kidwai S/o Sarwal Ali Kidwai R/o E-3, Flat No.301 & 302, Okhla Vihar, Jamia Nagar New Delhi-110025. ..... Defendants Date of Institution : 10.03.2016 Date on which arguments heard : 24.01.2023 Date of Judgment : 31.01.2023 Result : Decreed SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT DT.20.05.2013 OR ALTERNATIVELY RECOVERY OF RS.
23,00,000/- ALONGWITH INTEREST Digitally signed by NAVJEET NAVJEET BUDHIRAJA JUDGMENT BUDHIRAJA Date: 2023.02.01 15:08:42 +0530 CS DJ No. 9978/16 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.1 of 18 This suit was initially filed on behalf of plaintiff for specific performance of agreement dated 20.05.2013 or in alternative for recovery of Rs.23 lacs with interest. Vide order dated 28.03.2018, plaintiff gave a separate statement wherein he dropped the relief of specific performance of contract.
2. The case of the plaintiff is that he entered into an agreement with defendants on 20.05.2013 in respect of sale of Flat no. F-6, 2 nd floor on Front Portion right side, main road, Okhla Vihar, Jamia Nagar, New Delhi bearing Khasra no.415/161, measuring 75 sq. Yards (suit property), as shown in red color is the site plan against the sale consideration of Rs.23 lacs, out of which, plaintiff paid a sum of Rs.10 lacs to the defendants and it was agreed that the remaining amount of Rs.13 lacs shall be paid within 06 months from the date of the agreement and after receiving the full and final payment, the defendants will execute the sale deed in the name of the plaintiff. It was further agreed between the plaintiff and the defendants that on failure of the plaintiff to perform his part of the obligation, the earnest money of Rs.10 lacs shall stand forfeited and on failure on defendants part, they shall pay double the amount of earnest money.
3. It is further the case of the plaintiff that despite paying the entire sale consideration to the defendants within the stipulated period, defendants have failed to execute the sale deed in respect of the suit property in favor of the plaintiff nor have handed over the physical possession of the suit property, despite making sustained efforts and requests. The plaintiff personally visited the house of the defendant no.1 on 10.08.2015 who also called defendant no.2 at his residence and after conversation of about one hour, the defendants flatly refused to hand Digitally signed by NAVJEET NAVJEET BUDHIRAJA CS DJ No. 9978/16 BUDHIRAJA Date: 2023.02.01 15:09:09 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.2 of 18 over the possession of the suit property following which the plaintiff asked for return of his money which the defendants refused and also extended threats to the plaintiff.
4. It is further the case of the plaintiff that on enquiry, it was unraveled that the suit property never stood in the name of defendant no.1 or 2 at any point of time and defendants have entered into the agreement with the plaintiff with mala-fide intention to hoodwink the plaintiff to the tune of Rs.23 lacs. the plaintiff then a issued a legal notice 01.09.2013 which was responded to by the defendants vide their reply dated 22.09.2015 wherein they admitted the execution of the agreement dated 25.02.2013 and receipt of Rs.23 lacs.
5. The defendants contested the suit by filing the written statement challenging the maintainability of the suit and further, inter-alia, submitting that the agreement to sell relied upon by the plaintiff is an unregistered document having no value in the eyes of law. The suit of the plaintiff is barred by virtue of Section 17 (1A) of the Registration Act. Further, it is stated that the suit of the plaintiff is also not maintainable in the light of the judgment of the Supreme Court of India in Suraj Lamp and Industries Vs. State of Haryana & Ors., date of decision October 11, 2011 . Further, it is stated that the suit of the plaintiff is also not maintainable being hit by Section 35 of the Indian Stamp Act, 1899 being not sufficiently stamped.
6. It is further the stand of the defendants that they entered into a collaboration agreement dated 25.02.2013 with one Haji Karamat Ali S/o Bundu R/o H. No.B-6, main road, Okhla Vihar, Jamia Nagar, New Delhi and as per the collaboration agreement the defendants raised the Digitally signed by NAVJEET CS DJ No. 9978/16 NAVJEET BUDHIRAJA Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. BUDHIRAJA Page no.3 ofDate:
18 2023.02.01 15:10:20 +0530 construction over the property bearing no. H.No.B-6, Main Road, Okhla Vihar, Jamia Nagar, New Delhi, and have become the owner of total seven flats in the above said property. The plaintiff approached the defendants to purchase a flat at second floor in the above said building and the defendants also agreed for the same. Mean while the said Haji Karamat Ali, the erstwhile owner requested the defendants to transfer him flat of second floor instead of third floor. The defendants contacted the plaintiff and narrated the entire facts and requested to take flat on third floor or to take back the earnest money. The plaintiff agreed to take the flat on third floor of the above said property/building. The defendants entered into a transfer agreement dated 23.05.2014 with the said Haji Karamat Ali and handed over the said flat on the second floor to Haji Karamat Ali. The defendants handed over the peaceful vacant physical possession of the 3rd Floor, Flat no.303, Khasra no.415/161, B-6 Okhla Vihar, Jamia Nagar, New Delhi (hereinafter referred to as 'suit property A') on 28.06.2014 on the spot and also executed the General Power of Attorney, agreement to sell and purchase, affidavit, receipt, will and also a possession letter duly attested by Notary Public. It is submitted that the said possession letter and agreement to sell clearly reflects the fact that the possession of the suit property A has been handed over to the plaintiff by the defendants. Rest of the averments of the plaint were dis-affirmed in the written statement.
7. Replication came to be filed on behalf of the plaintiff reiterating the averments of the plaint and dis-claiming those of the written statement.
8. The completion of pleadings was followed by the framing of issues as under: NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.02.01 15:09:24 +0530 CS DJ No. 9978/16 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.4 of 18 Issue no.1 : Whether the suit of the plaintiff is not maintainable as the same is without any cause of action? OPD Issue no.2 : Whether the suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction? OPD Issue no.3 : Whether the plaintiff is entitled for relief of specific performance as prayed for? OPP Issue no.4 : Whether the plaintiff is also entitled for decree of recovery of money of Rs.23,00,000/- as prayed for? OPP Issue no.5 : Whether the plaintiff is also entitled for any interest. If yes, at what rate and for which period? OPP Issue no.6 : Relief.
9. Plaintiff then led his evidence by examining himself as PW-1 by way of affidavit Ex.PW-1/A and relying upon documents as under:
a) Site plan of the suit property, Ex.PW-1/1.
b) Advance receipt cum agreement to sell and purchase Mark PW-
1/2 (same was exhibited in affidavit as Ex.PW-1/2 now de- exhibited as original with police).
c) Office copy of legal notice Ex.PW-1/3 (OSR).
d) Postal receipts of the legal notice, Ex.PW-1/4 (colly) (OSR).
e) Courier receipts of legal notice, Ex.PW-1/5 (colly).
f) Reply to the legal notice, Ex.PW-1/6 (OSR).
10. PW-1 was cross-examined on behalf of both the defendants. Plaintiff also got examined Mohd. Inam as PW-2 vide his affidavit Ex.PW-2/A and who was also cross-examined on behalf of the defendants. Further, Sh. Munawar Ansari was examined as PW-3 vide his affidavit Ex.PW-3/A who was also cross-examined on behalf of the defendants. Plaintiff closed his evidence on 27.02.2019.
Digitally signedby NAVJEET NAVJEET BUDHIRAJA CS DJ No. 9978/16 BUDHIRAJA Date: 2023.02.01 15:10:41 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.5 of 18
11. In defendant's evidence, Sh. Masood Anwar was examined as DW-1 vide his affidavit Ex.DW-1/A, who relied upon the documents Ex.DW-1/1 to Ex.DW-1/6 and Mark A to D. He was cross-examined on behalf of the plaintiff. Mohd. Ali Kidwai was examined as DW-2 vide his affidavit Ex.DW-2/A and was cross-examined on behalf of the plaintiff. Defendants evidence then attained closure, paving the way for final arguments.
12. On the day fixed for final arguments, main counsel for the plaintiff could not appear and was granted an opportunity to address the arguments on any given day three days before the date of pronouncement of the judgment.
13. Ld. counsel for the defendants, on the other hand, presented his case before the court by referring to the stand taken in the written statement and also cross-examination of the plaintiff to hammer home the point that plaintiff does not have any cause of action in his favor as he was handed over a substitute property by execution of proper sale purchase documents. Ld. counsel further argued that the plaintiff himself chose to receive the possession of suit property A which is evident from the possession letter dated 28.06.2014 duly executed by him. It is also argued that the report of local commissioner would not be sufficient to counter the sale documents executed by the defendants in favor of the plaintiff in respect of suit property A and the parallel sale documents placed on record by Ld. Local Commissioner in favor of one Irfan are forged and fabricated and cannot be accorded any consideration. Also, after the defendants had handed over possession of suit property A to the plaintiff, the plaintiff acted in cahoots with Haji Karamat Ali and instituted the present suit. Digitally signed by NAVJEET BUDHIRAJA NAVJEET Date:
CS DJ No. 9978/16 BUDHIRAJA 2023.02.01
Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.6 of 18 15:10:52
+0530
14. I have cogitated the records of the case. My issue wise finding is as under:
15. Issue no.2 : Whether the suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction? 15.1 Plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs.23 lacs, the amount of which the recovery is sought from the defendants. Defendants have challenged the valuation on the ground that the market value of the suit property is more than Rs.1 crore. The burden to prove this issue was upon the defendants, however, they have failed to put forth any material that the market value of the suit property was Rs.1 crore and that the plaintiff has under valued the relief. Since the plaintiff has chosen to drop the relief of specific performance of contract vide statement dated 28.03.2018 and has instead proceeded with the alternative prayer of recovery of Rs.23 lacs on which he has paid ad valorem court fees of Rs.24,800/-, as per Chapter 3, Section 7 (i) of the Court Fees Act, 1870 the valuation given to the suit cannot be faulted with. This issue is accordingly decided against the defendants and in favour of the plaintiff.
16. Issue no.3 : Whether the plaintiff is entitled for relief of specific performance as prayed for?
16.1 The burden to prove this issue was casted upon the plaintiff, but vide order dated 28.03.2018, vide the separate statement of the plaintiff, the relief of specific performance of the contract was withdrawn. This issue, therefore, stands struck off and no finding on the same is warranted.
17. Issue no.1 : Whether the suit of the plaintiff is not Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.02.01 CS DJ No. 9978/16 15:11:02 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.7 of 18 maintainable as the same is without any cause of action?
And Issue no.4 : Whether the plaintiff is also entitled for decree of recovery of money of Rs.23,00,000/- as prayed for? 17.1 Both these issues are taken up together being concatenated. The plaintiff in his plaint and affidavit Ex.PW-1/A has claimed that he entered into an agreement Mark PW-1/2 with the defendants in respect of purchase of the suit property for an amount of Rs.23 lacs, out of which he had paid the sum of Rs.10 lacs to the defendants as per agreement clause 1 and remaining sum of Rs.13 lacs was to be paid within 06 months from the date of the agreement, which was finally paid. Though, Ld. Counsel for the defendant, during the cross-examination of PW-1, sought to assail the claim of the plaintiff of making the payment of Rs.23 lacs by questioning him as to mode of payment, whether the same was reflected in his income tax return of the relevant year of the assessment, whether the same was reflected in the record brought by him Ex.PW- 1/D-1 and Mark A, but in view of unequivocal admission of DW-1 and DW-2 in their cross-examination regarding the receipt of Rs.23 lacs, the non-filing of any documentary evidence in regard to the payment of Rs.23 lacs by the plaintiff to the defendants does not hold much significance. The germane excerpt of the cross-examination of the DW-1 is reproduced as under:
"...I had deal with the plaintiff in respect of the property. It is correct that I had received a sum of Rs.23 lakh in respect of property F-6, 2nd Floor, on front portion right side Main Road, Okhla Vihar, Jamia Nagar, New Delhi bearing Khasra No.415/161 measuring 75 Sq. Yds. on Digitally signed by NAVJEET NAVJEET BUDHIRAJA CS DJ No. 9978/16 BUDHIRAJA Date: 2023.02.01 15:11:35 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.8 of 18 25.05.2013 onwards. It is correct that an advance receipt-cum-agreement to sale and purchase was executed between me and the plaintiff on 20.05.2013. It is correct that I had received a sum of Rs.10 lakh on the day of execution of the said agreement. It is also correct that I had received remaining payment of Rs.13 lakh till 20.05.2014..."
17.2 The excerpt of cross-examination of DW-2 is also as under:
"It is correct that Syed Masood Anwar is my business partner. It is correct that I had received a sum of Rs.23 lakh from Syed Hasan Iqbal the plaintiff in the year 2013 in respect of the property bearing no. F-6, 2nd Floor, on front portion right side Main Road, Okhla Vihar, Jamia Nagar, New Delhi bearing Khasra No.415/161 measuring 75 Sq. Yds. It is also correct that an advance receipt-cum-agreement to sale and purchase was executed between me and the plaintiff on 20.05.2013. The sum of Rs.10 lakh was paid by the plaintiff to my partner Syed Masood Anwar on the day of the execution of the agreement..."
17.3 It is pellucid from the afore-noted extract that the defendants have admitted the receipt of Rs.23 lacs in respect of the agreement related to the sale and purchase of the suit property.
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJA
BUDHIRAJA Date:
2023.02.01
CS DJ No. 9978/16 15:11:47
Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.9 of 18 +0530
17.4 The controversy has narrowed down to whether the defendants are liable to refund the said amount to the plaintiff for their failure to conclude the sale of the suit property in favor of the plaintiff. Towards this, again the cross-examination DW-1 and DW-2 is worth glancing at wherein they have specifically affirmed that sum of Rs.23 lacs was received in respect of property F-6, 2nd floor, Okhla Vihar, Jamia Nagar, New Delhi bearing Khasra no.415/161 measuring 75 sq. yards. Further, upon posing a specific question as to whether they have handed over possession of the suit property to the plaintiff, they chose to adopt a circuitous route and not to answer directly. The said question and its response is also mentioned as under:
"Q. Whether you had handed over the possession of the flat bearing F-6, 2 nd Floor, on front portion right side Main Road, Okhla Vihar, Jamia Nagar, New Delhi bearing Khasra No.415/161 measuring 75 Sq. Yds. to the plaintiff after receiving the total sale consideration amount of Rs.23 lakh and execution of the agreement dated 20.05.2013?
Ans. The plaintiff has taken the possession of the flat on 3rd Floor at the place of above said flat as per his own choice."
17.5 Moving further, let us now examine the claim of the defendants with regard to handing over of the possession of the suit property A i.e. 3rd Floor, Flat no.303, Khasra no.415/161, B-6 Okhla Vihar, Jamia Nagar, New Delhi.
17.6 In the cross-examination of PW-1, though he affirmed the Digitally signed by NAVJEET CS DJ No. 9978/16 NAVJEET BUDHIRAJA Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. BUDHIRAJA Page no.10 of Date: 18 2023.02.01 15:11:59 +0530
execution of the documents i.e. general power of attorney, agreement to sell, possession letter dated 28.06.2018 in respect of the suit property A Ex.PW-1/D-2 and Ex.PW-1/D-3 bearing his signatures at point A, B, C, D and E, but he unequivocally disclaimed having received the possession of the suit property A as substitute for suit property.
17.7 Further, DW-1 and DW-2 in their respective affidavit have claimed that the plaintiff agreed to take suit property A as Haji Karamat Ali had executed the documents Ex.DW-1/3, Ex.DW-1/4, Ex.DW-1/5, Ex.DW- 1/6 related to suit property A in favour of defendant no.2 who became an absolute owner of the suit property A. In the cross-examination of DW-1 and DW-2 also, though no such suggestion was put that the documents Ex.PW-1/D-2 and Ex.PW-1/D-3 were got executed by the plaintiff under any pressure or coercion, but DW-1 was categorically questioned as to the disinterest of the plaintiff in taking possession of suit property A and also that the possession of the suit property A was never handed over to the plaintiff, which was though denied. It is also pertinent to note that DW-1 was also confronted that one Haji Karamat Ali was in the possession of suit property A which was offered to the plaintiff, which suggestion was also disclaimed.
17.8 Further, in the cross-examination of DW-2, though he postulated to have handed over the key and the paper of suit property A to the plaintiff on 28.06.2014, but when he was confronted with the factum of the plaintiff having not been handed over the possession of the suit property A and that Haji Karamat Ali being in possession of the same, DW-2 stonewalled those queries. His response is extracted as under:
" ....The plaintiff was offered the said
flat at 3rd floor by me because Haji
Digitally signed by
NAVJEET NAVJEET
BUDHIRAJA
CS DJ No. 9978/16
BUDHIRAJA Date: 2023.02.01
15:12:10 +0530
Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.11 of 18
Karamat Ali who was in possession of the
said flat was willing to have the flat on the 2nd floor. I had never called by the police.
Again said - once I was called by the police. No FIR has been registered against me at PS- Jamia Nagar in respect of the above-said transaction. I do not remember whether any FIR for cheating has been registered against me and my partner at PS Jamia Nagar. It is wrong to suggest that I and Syed Masood Anwar cheated to the plaintiff to the tune of Rs.23 lakh at the pretext of selling the above-said flat to him. I do not know who is in possession of the said flat at present. I also do not know that who is in possession of the flat on the 3rd floor. .."
17.9 In the backdrop of the discussion herein above, the factual matrix obtained is that the payment of Rs.23 lacs to the defendants is an irrefragable position in respect of the purchase of the suit property, but defendants instead of selling and handing over the suit property to the plaintiff, offered to sell him suit property A by getting the necessary documents executed and claimed to have given the possession to the plaintiff, which is vigorously refuted by him claiming that one Haji Karamat Ali was in occupation of suit property A. DW-2 also expressed his ignorance as to who was holding possession of suit property A at the time when DW-2 was cross-examined.
17.10 The pertinent question which now falls for consideration is on Digitally signed by NAVJEET NAVJEET BUDHIRAJA CS DJ No. 9978/16 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr.
BUDHIRAJA Date: 2023.02.01 Page no.12 of 18 15:12:21 +0530 whom the onus would lie to establish that the possession of suit property A was handed over to the plaintiff after execution of the documents dated 28.06.2014 Ex.PW-1/D-2 and Ex.PW-1/D-3. Section 101 of the Evidence Act enunciates that when a person is bound to prove the existence of any fact, it is said that the burden of prove lies on that person. It implies that the person who asserts some positive fact, the onus was lies upon him to prove the said fact.
17.11 Considering the position of the law and factual position emerged herein, the onus was upon the defendants to prove that the possession of the suit property A was handed over to the plaintiff. To this effect, the only document placed on record is the possession letter which is part of Ex.PW-1/D-2 and Ex.PW-1/D-3, but in my opinion, that would not suffice in the face of luculent and non-ambiguous stand of the plaintiff that he was never given the possession of suit property A and one Haji Karamat Ali was in occupation of the same. It is not the case herein that the said possession letter was a registered one, which could have accorded some sanctity to it. The defendants could have proved the factum of handing over the possession of suit property A to the plaintiff by placing on record some tangible evidence in the form of some photographs of the plaintiff in occupation of suit property A, evidence of any utility bills in the name of the plaintiff or his family members or by examining any independent person who could vouch in favor of the defendants. On this count, the defence of the defendants is found to be on slippery road.
17.12 The court was confronted with afore-noted position at the time of pronouncement of the final order and in the facts and circumstances of the case, to adjudicate the dispute effectively, it was deemed expedient to NAVJEET Digitally signed by NAVJEET BUDHIRAJA CS DJ No. 9978/16 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. BUDHIRAJA Date: 2023.02.01 15:12:32 +0530 Page no.13 of 18 appoint a Local Commissioner by virtue of Order 26 Rule 9 of CPC to conduct a local investigation and vide order dated 17.09.2022, Ms. Yukti, Ld. Advocate was appointed to visit the suit property A and to give the report on following aspects:
1) Whether after execution of the documents in respect of third floor of the said property on 28.06.2014, plaintiff/LRs of plaintiff was handed over the possession of the said third floor by the defendant at any point of time?
2) Whether plaintiff/LRs at any point of time occupied the said third floor?
3) What is the current status of the possession of the said third floor, who are the occupants therein?
17.13 Ld. Local Commissioner submitted her report after visiting the suit property A alongwith necessary photographs and it was stated that one Sh. Irfan was having the possession of suit property A for past 9 years. The suit property was found to be locked and the said Irfan, upon telephonic information was learnt to be in Mumbai, but he assured to show the property documents in his favor to the Ld. Local Commissioner. Supplementary report of Ld. Local Commissioner then came to be filed on 19.12.2022 alongwith copy of the chain of property documents in respect of suit property A, which shows that Irfan Ali purchased the suit property A from one Abdul Hamid vide GPA, agreement to sell, affidavit, possession letter and will dated 21.04.2015, who had purchased the same from Haji Karamat Ali vide GPA, agreement to sell, affidavit, possession letter and will dated 13.03.2015. It was also reported by Ld. Local Commissioner that at the time of further inspection the said Irfan was found to be in possession of the suit property A. Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.02.01 CS DJ No. 9978/16 15:12:51 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.14 of 18 17.14 Before discussing the report of Ld. Local Commissioner, let us find out whether the report can be relied upon as evidence by virtue of Order 26 Rule 10 (2) CPC. In the case of New Multan Timber Store & Ors. Vs. Rattan Chand Sood, date of decision 9 September, 1997, it was held by High Court of Delhi as under:
"(13) Learned counsel for the appellants has next contended that the appellants filed objections to the report of the Commissioner. However, the same were not disposed of. This contention of the learned counsel is also devoid of any force. The objections were considered by both the learned Sub Judge as well as by the first Appellate Court. The learned Sub Judge was of the view that since the Commissioner was not examined hence the report submitted by him could not be read in evidence. The said view was obviously not correct in accordance with law and, as such, the learned Additional District Judge dis-agreed with the said view and found that the report of the Local Commissioner is a legal evidence under Order 26 Rule 10(2) Civil Procedure Code and the same can be looked into and relied upon without formal proof of the said report."
17.15 It is, thus, clear from the above noted judgment that report of Local Commissioner can be relied upon and there is no requirement of Digitally signed by NAVJEET NAVJEET BUDHIRAJA CS DJ No. 9978/16 BUDHIRAJA Date: 2023.02.01 15:13:02 +0530 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.15 of 18 formal proof of the same. It is manifest from the report of Ld. Local Commissioner that one Irfan was found to be in possession of the suit property A on the back of ownership documents, which substantiates the claim of the plaintiff that he was never handed over the possession of suit property A. 17.16 One interesting fact which also is worth noting is that the plaintiff has all along claimed that Haji Karamat Ali was in fact having the possession of suit property A and in this regard categorical questions were also hurled upon DW-1 and DW-2 and from the report of Ld. Local Commissioner, this stand of the plaintiff also stands established as the said Haji Karamat Ali is shown to be the one who executed documents in favor of one Abdul Hamid on 13.03.2015. This clearly debunks the claim of the defendants that the plaintiff was handed over the possession of suit property A pursuant to execution of the documents Ex.PW-1/D-2 and Ex.PW-1/D-3 dated 28.06.2014.
17.17 The above analysis present an obnoxious state of affairs in respect of the dealing between various persons who casually execute the documents i.e. GPA, agreement to sell, will, etc. masquerading as ownership documents and purport to transfer the property in favor of multiple persons at different points in time against consideration and some of those purchasers later found themselves hoodwinked of their money when they stumble upon the factum of the property having sold to multiple persons. In this case as well, one Haji Karamat Ali is found to be the one who at different points in time executed the documents purporting to be the sale documents Ex.DW-1/2 to Ex.DW-1/6 in favor of defendants in respect of suit property A and also later on sought to execute another set of documents in respect of the same property in favor CS DJ No. 9978/16 NAVJEET Digitally signed by NAVJEET BUDHIRAJA Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. BUDHIRAJA Page no.16 of 18 Date: 2023.02.01 15:13:11 +0530 of other person, by taking advantage of the fact that in areas which are categorized as 'unauthorized' and where sale transactions would not require the execution and registration of sale deed. The plaintiff is the one who has fallen in the trap laid by the defendants in connivance with the said Haji Karamat Ali by lending out his hard earned money of Rs.23 lacs on the pretext of acquiring the ownership of the suit property, and instead was made to execute the documents purporting to be the sale documents of suit property A, without actually handing over the possession thereof.
17.18 Clearly, the plaintiff has a valid cause of action in his favor and the defendants are found to be in breach of the contract and are thus liable to refund sum of Rs.23 lacs to the plaintiff by virtue of Section 73 of the Indian Contract Act. Issue no.1 and 4 are accordingly decided in favor of the plaintiff and against the defendants.
17.19 Though, Ld. Counsel for the defendants flagged his objections that the report of Local Commissioner would not be sufficient to counter the sale documents executed by the defendants in favor of the plaintiff in respect of suit property A and the parallel sale documents placed on record by Ld. Local Commissioner in favor of one Irfan are forged and fabricated and cannot be accorded any consideration and also that after the defendants had handed over possession of suit property A to the plaintiff, the plaintiff acted in cahoots with Haji Karamat Ali and instituted the present suit, but these objections are not held to be tenable in the light of the detailed discussion herein above and are rejected.
18. Issue No.5 : Whether the plaintiff is also entitled for any interest if yes, at what rate and which period?
Digitally signed by NAVJEET NAVJEET CS DJ No. 9978/16 BUDHIRAJA BUDHIRAJA Date: 2023.02.01 Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.17 15:13:20 of 18 +0530
18.1 Having regard to the finding of Issue no.4 wherein the plaintiff is found to be entitled to recover sum of Rs.23 lacs, plaintiff is also entitled to reasonable interest on the said sum. In the absence of any contractual obligation between the parties with regard to the grant of interest for the pre-suit period, plaintiff is awarded interest which is pegged at the rate of 7% per annum from the date of institution of the suit till realization of the amount. Thus, this issue is also decided in favor of the plaintiff and against the defendants.
19. Issue no.6 : Relief.
19.1 In view of the finding on issue no.1, 4 and 5 having returned in favor of the plaintiff, the present suit stands decreed and plaintiff is entitled to recover sum of Rs. 23 lacs from the defendants, who are jointly and severally liable, alongwith interest at the rate of 7% per annum from the date of the institution of the suit till realization of the amount. Cost of the suit is also awarded in favor of the plaintiff. Decree sheet be drawn up.
Digitally signed by NAVJEETAnnounced & dictated in NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.02.01 the open court on 31.01.2023 (Navjeet Budhiraja)15:13:28 +0530 Additional District Judge-03 South East District, Saket Courts, New Delhi 31.01.2023 Certified that this judgment contains 18 pages and each page bears my signatures.Digitally signed by NAVJEET
NAVJEET BUDHIRAJA
BUDHIRAJA
(Navjeet Budhiraja)
Date: 2023.02.01
15:13:36 +0530
Additional District Judge-03
South East District,
Saket Courts, New Delhi
31.01.2023
CS DJ No. 9978/16
Syed Hassan Iqbal Vs. Syed Masood Anwar & Anr. Page no.18 of 18