Delhi District Court
Smt Ram Rati vs Sachin Jain Digitally Signed By Sachin ... on 27 January, 2022
IN THE COURT OF SH HARGURVARINDER SINGH
JAGGI, ADDL. DISTRICT JUDGE-02, SOUTH-WEST
DISTRICT, DWARKA COURTS, DELHI
RCA Civil DJ ADJ No. 13/2017
CNR No.: DLSW010012502017
IN THE MATTER OF:
1. SMT RAM RATI, SINCE DECEASED
THROUGH HER LEGAL HEIRS
A. SMT. SHOBHA (MARRIED DAUGHTER)
W/O. SHRI DEVENDER YADAV
R/O.99, JHULJHULI VILLAGE,
NEW DELHI-73.
B. SMT. REKHA (MARRIED DAUGHTER)
W/O. SHRI KANHAIYA YADAV
R/O. D-1/104, MANSA RAM PARK,
UTTAM NAGAR, NEW DELHI ..Appellant
Versus
SACHIN JAIN Digitally signed by SACHIN JAIN
Date: 2022.01.27 18:30:51 +05'30'
1. SHRI RAM NIWAS DAGAR
S/0. SHRI SITA RAMM
R/O. VIL. & P.O. ISSAPUR,
NEW DELHI-110073 ...Respondent No.1
2. SHRI SHIV CHARAN
S/o. Shri ANAND
R/O. VILL. &P.O. UJWA,
NEW DELHI ...Respondent No.2
Date of filing of appeal: 07.02.2017
Date of order reserved: 10.01.2022
Date of pronouncement of order: 27.01.2022
JUDGMENT
1. This is an appeal under Order XLI, Rule 1 read with Section 96 of the Code of Civil Procedure, 1908 (hereinafter "CPC") against the impugned order dated 22.12.2016 hereinafter referred as "impugned Judgement" passed in suit bearing No. 98701/2016 passed by Ld. CJ-04, Central Tis Hazar Courts, Delhi (hereinafter "civil suit"), wherein the trial Court dismissed the suit of the plaintiff.
Digitally signed by SACHIN JAIN
SACHIN JAIN Date: 2022.01.27 18:31:04 +05'30'
2. For the sake of convenience and clarification the parties are also referred to and by their status and position before the trial Court i.e. Appellant as plaintiff and defendants as respondents.
3. Brief case of the plaintiff as per plaint is that she is the lawful owner in the peaceful possession of the suit property, which is her self-acquired property having been purchased by her vide sale deed dated 03.10.1981. In the month of November 2000, due to the acute illness of the plaintiff, plaintiff alongwith her husband had approached the defendants for grant of a loan of Rs. 50,000/- upon which the defendants had agreed to advance loan of Rs. 50,000/- at an interest rate of 2% per month to the plaintiff and her husband against some security. The plaintiff and her husband had thus agreed to mortgage the suit property to the defendants. The defendants had accordingly taken the plaintiff to the office of Sub Registrar and had obtained her signatures on some documents including some blank papers on the pretext of execution of loan documents and thereafter advanced a loan of Rs. 50,000/- to the plaintiff and her husband. The plaintiff being an illiterate lady had signed the aforesaid documents on the instructions of defendant no. 2 in good faith. Subsequently, the aforesaid loan had been repaid by her and her husband alongwith interest within the agreed period Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:31:15 +05'30' but the defendants did not return the documents got by them signed from the plaintiff on the pretext that the same had been misplaced by the defendants during the construction and renovation of their house. However recently, according to the plaintiff, one person represented himself to be a property dealer and had come to the suit property and had informed the husband of the plaintiff that he was going to purchase the portion of the suit property from the defendants who have represented themselves to be the owner of the suit property, whereupon, the plaintiff approached the concerned patwari to enquire about the status of the suit property and came to know that as per the revenue records the suit property is mutated in the name of defendant no. 2. On further enquiry, the plaintiff has come to know that the defendants in collusion with each other had hatched a conspiracy to grab the suit property and had fraudulently obtained the signatures of the plaintiff on the GPA and Will dated 10.11.2000 in favour of the defendant no. I and thereafter misused the same. Thus, the plaintiff has filed the present suit for declaration/cancellation of the aforesaid GPA dated 10.11.2000 and sale deed dated 10.08.2001 executed by defendant no. 1, as on attorney of plaintiff, in favour of defendant no. 2 and for permanent injunction.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:31:27 +05'30'
4. On receipt of the summons of the suit for settlement of issues were directed to be issued to the defendants vide order dated 22.10.2007, Both the defendants appeared in response to the summons of the suit on 12.11.2007 and filed their joint written statement on 27.02.2008. In their written statement, defendants have denied the grant of any loan of Rs. 50,000/- by them to the plaintiff in the month of November 2000 and in fact, according to them, on 10.11.2000, the plaintiff had appointed defendant no. 1 as her GPA in respect of suit property by way of an irrevocable registered GPA and consequently the defendant no. 1 has executed a sale deed in respect of the suit property in favour of defendant no. 2 on 10.08.2001. They have further alleged that subsequently the suit property was mutated in the name of defendant no. 2 vide order dated 10.09.2001 passed by concerned Tehsildar, where after the defendant no. 2 had become the absolute owner of the suit property. The defendants have thus prayed for dismissal of the suit of plaintiff. They have also raised objections to the valuation of the suit for the purposes of Court fees and jurisdiction in as much as according to them the suit of the plaintiff has not been properly valued as per the market value of the suit property which is not less than Rs. 20,00,000/-.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:31:37 +05'30'
5. Replication to the aforesaid written statement of defendants was thereafter filed by plaintiff on 17.09.2008, wherein the plaintiff has once again reiterated all the averments made by her in her plaint and has denied contrary averments made by the defendants in their written statement.
6. Thereafter, on basis of pleadings of parties, following issues were settled by Ld. Trial court vide order dated 19.09.2009:
Issue no. 1:- Whether the plaintiff is the owner of the suit property? OPP.
Issue no. 2:- Whether the plaintiff is entitled to a declaration to the extent that the GPA in favour of defendant no. 1 and sale deed in favour of the defendant no. 2 with respect to suit property are null and void and consequently the relief for cancellation of these documents. OPP.
Issue no. 3:- Whether the plaintiff is entitled to decree of permanent Injunction as prayed for? OPP.
Issue no. 4:- Whether the suit is without any cause of action? OPD.
Issue no. 5:- Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD. Digitally signed by SACHIN JAIN Issue no. 6:- Relief.
SACHIN JAIN Date: 2022.01.27 18:31:49
+05'30'
7. Plaintiff has examined only two witnesses in support of her case.
She has failed to examine herself as a witness in support of her case, Sh. L.S Yadav, husband of the plaintiff was examined as PW- 1 and he has tendered his evidence by way of affidavit Ex PW1/A alongwith following documents :
(i) Ex PW1/1: SPA executed by plaintiff in favour of PW-1.
(ii) Ex PW1/2: Site plan of the suit property.
(iii) Ex PW1/3: Certified copy of the sale deed dated 3.10.1981 in favour of the plaintiff.
(iv) Ex PW 1/4 (colly): Certified copy of mutation proceedings for Tehsildar alongwith documents submitted by the defendants.
(v) Ex PW1/5: Election I card of PW-1.
(vi) Mark A: Ration Card of PW-1 dated 10.08.2000.
(vii) Ex PW1/7: Ration Card dated 13.05.2007 of PW-1.
(viii) Ex PW1/8: Election I card of the plaintiff.
(ix) Mark B: Photocopy of the water bill of the plaintiff.
(x) Mark C: Extended abadi certificate in the name of plaintiff.
8. PW-1 was duly cross examined by Ld. Counsel for defendants and during his cross examination following documents were put to the witness: Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:32:01 +05'30'
(i) Ex PW1/D1: Certified copy of the sale deed executed by the plaintiff in favour of Smt. Saroj.
(ii) Ex PW1/D2: Certified copy of sale deed executed by the plaintiff in favour of Smt. Veena Devi.
9. Sh. Rajbir Singh, S/o Late Sh. Zile Singh was examined by plaintiff as PW-2. He tendered his evidence by way of affidavit Ex PW2/A on behalf of the plaintiff. He was also duly cross examined by Ld Counsel for defendants and was discharged.
10. Thereafter, on a separate statement of counsel for plaintiff, PE was closed vide order dated 12.08.2013 and the matter was fixed for defendant's evidence.
11. Defendant no. 1 has thereafter examined himself as the sole witness in support of the case of defendants and tendered his evidence by way of affidavit Ex DW1/A alongwith following documents:
(i) Ex DW1/1: Agreement to sell dated 10.01.2000 in respect of the suit property. (It appears that inadvertently no endorsement could be made on agreement to sell by Ld. Trial Court).
(ii) Ex DW 1/2: Receipt of consideration in respect of the suit Digitally signed by SACHIN JAIN property. SACHIN JAIN Date: 2022.01.27 18:32:16 +05'30'
(iii) Ex DW 1/3: Possession letter in respect of suit property.
(iv) Ex DW 1/4: Certified copy of registered GPA in respect of suit property in favour of defendant no. 1. (The said GPA bears the endorsement Ex DWI/1).
(v) Ex DW 1/5: Certified copy of registered sale deed in respect of suit property in favour of defendant no. 2.
(vi) Ex DW 1/6: Site plan of the suit property filed by the defendant.
(vii) Ex DW1/7 (colly): Certified copy of Mutation proceedings in respect of suit property which were already Ex PW1/4.
(viii) Ex DW1/8: in respect of suit property. Copy of Lal Dora Certificate dated 21.12.2001 in respect of suit property.
(Note: During appreciation of evidence, the Ld. Court referred the GPA as Ex DW1/1 and registered sale deed as Ex DW 1/5 due to the discrepancies mentioned in endorsing the documents at the time of evidence.
12. During the pendency of the suit plaintiff had died on 12.03.2015 and on an application for impleadment of LR's of deceased plaintiff U/O 22 Rule 3 r/w section 151 CPC, LR's of deceased plaintiff were brought on record vide order dated 07.07.2015 and the matter was fixed for final arguments.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:32:29 +05'30'
13. The Ld. Trial Court by appreciating the evidence lead by respective parties and after hearing the arguments dismissed the suit of the plaintiff on 22.12.2016
14. The appellant/plaintiff is aggrieved by the impugned order passed by the trial Court and has sought that the same be set aside on the following grounds:
A) That the impugned order is against the surmises and facts of the law and hence liable to be set-aside. Because Ld. Lower Court failed to appreciate the fact.
B) That in the written statement in sub para (i) of No.6 the respondents clearly alleged that the plaintiff on 10.11.2000 appointed the defendant No.1 as her General Power of Attorney in respect of plot of 800 sq. yds. bearing Khasra No.354, Lal Dora, Village Ujwa, New Delhi. In the said para it is also mentioned that the said GPA was duly registered in the office of SR concerned vide documents No. 1801, Book No.4, Volume No. 6763, Page No.93-94 but the Ld. Lower Court relied on the documents Ex. DW-1/1 GPA dated 10.01.2000 and other Exhibited documents of dated 10.01.2000. From these contradictory dates it is crystal clear that there must have been two documents manipulated by the Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:32:42 +05'30' defendants/ respondents but the Ld. Lower Court did Consider this facts hence the impugned order is liable to be set-aside.
C) That the Ld. Lower Court did not consider the fact that after receipt of summons in the case, on 12.11.2007, both respondents appeared before the Ld. Court and alleged that they are the Property Dealers and further alleged that they purchased the property in suit in November, 2000 from deceased plaintiff in Rs.24,00,000/- but the defendant No.2 filed Sale Deed dated 10.08.2001, which shows the sale consideration amount only Rs.70, 000/-. This fact ought to have been considered but was not considered by the Ld. Lower Court and wrongly relied on the documents dated 10.01.2000 hence the impugned order is liable to be set- aside.
D) That the Ld. Lower Court wrongly relied on the GPA dated 10.01.2000 despite the fact that in the cross examination the DW-1 admitted that he executed the sale deed dated 10.11.2001 on the basis of registered GPA dated 10.08.2000. In these circumstances there are three contradictory dates of GPA but the Ld. Lower court wrongly relied on the GPA Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:32:54 +05'30' dated 10.01.2000. In fact in the entire written statement and entire cross examination, the respondents never disclosed that any document was executed in the month of January, 2000 therefore the finding of the Ld. Lower Court are beyond the law and hence the impugned order is liable to be set-aside.
E) That the Ld. Lower Court failed to appreciate the fact that the respondents are son and father and are in the habit to cheat to the innocent persons by lending money by taking their Signatures/ thumb impressions on blank papers in the garb of loan documents and then execute sale deed being attorney, which clearly proves from the other two more suits one filed by Shri Rajbir Singh and another was filed by Smt Sona Devi against the present respondent for cancellation of documents. The modus operandi of the Ld. Lower respondents was to be considered by the Court but it was not considered hence the impugned order is liable to be set- aside.
F) That Rajbir Singh also received loan of Rs.1,20,000/- from the respondent No.1 and mortgaged his property and executed loan documents in favour of respondent No.1 SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:33:07 +05'30' before SR concerned. Said Rajbir Singh also repaid the loan amount to the respondent No. l but the respondent No.1 executed Sale Deed in favour of his father i.e. the respondent No.2 on 10.08.2001 without his knowledge. When the said Rajbir asked the respondents to return his documents, the defendants took the same plea, like in the present matter, that the documents are missing some where due to renovation/ reconstructions of their house. The respondents also assured that he should not be worry and the respondent will not misuse the same so this fact was to be considered by the Ld. Lower Court but not considered hence the impugned order is liable to be set-aside.
G) Because respondents No.1 also played same fraud with one Smt. Sona Devi. The respondents No.1 obtained the thumb impression of Smt. Sona Devi on various documents and thereafter he gave a self bearer cheque to her which was returned by the bankers at the time of its presentation due non-appearance of signatures of the drawer on back of said cheque. Later the respondent No.1 took the said cheque with him with the plea that he would get the signatures of drawer on his back later on, but the respondent No.1 did not pay any Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:33:21 +05'30' amount to her so she filed suit for cancellation of documents before Hon'ble High Court of Delhi at New Delhi. The same fraud was played by the respondents with the plaintiff. This proves the modes operandi of the respondents but Ld. Lower Court did not Consider the same on the plea that these are merely allegations and are to be proved in evidence and hence the impugned order is liable to be set-aside. H) That Ld. Lower Court failed to appreciate the fact that in the alleged GPA dated 10.11.2000 only area 800 sq. yds have been shown but in the alleged Sale Deed dated 10.08.2001 the area 800 sq. yds out of 1350 sq. yds have been shown but the dimension in both documents are similar and same. This proves that neither the respondents purchased nor the plaintiff sold the property in appeal and all the documents are forged and manipulated documents hence the impugned order is liable to be set-aside.
I) That in the Sale Deed dated 10.08.2001, the respondent No.1 allegedly showed himself as attorney of the plaintiff vide GPA dated 10.11.2000 and also allegedly showed himself as sole, exclusive and absolute owner and in possession of land area measuring 800 sq. yds out of total land area Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:33:36 +05'30' measuring 1350 sq. yds. But the Ld. Lower Court failed to appreciate the fact that on the basis of GPA no one can be treated as Sole, absolute owner of any property and on the other hands the Ld. Lower Court wrongly relied on the GPA and WILL dated 10.01.2000 hence the findings of the Ld. Lower Court are not reliable and impugned order is liable to be set-aside.
J) That the Ld. Lower Court failed to appreciate the fact that an area measuring 800 sq. yds. was allegedly disposed off by the respondent No.1 in favour of his father only in a very meagre alleged amount of Rs.70,000/- but in the written statement the respondents showed the value of the suit property more than Rs.20, 00, 000/- and on 12.11.2007 they alleged that they purchased the property in Rs.24 Lakh. This proves that there are huge contradictory in the sale consideration amount and also there was collusion between respondents and a collusive sale deed was got registered by the respondent No.1 in favour of his father without any authority, right, title or interest and hence the impugned order of Ld. Lower Court is liable to be set-aside.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:33:49 +05'30' K) That the Ld. Lower Court failed to appreciate the fact that a collusive application for mutation was filed by the respondents before Tehsildar Concerned to mutate the property in appeal on the basis of said alleged Sale Deed. The notice by the concerned Tehsildar was issued to the plaintiff on 24.08.2001 directing the plaintiff to appear personally on 10.09.2001 and to 13 clear the position about the sale of land in appeal but the respondent No.1 in collusion with the officials, received notice and appeared as General Attorney of the plaintiff and gave his statement and on the basis of such statement the land in appeal was mutated in the of respondent No.2 in the name concerned record, but the Ld. Lower Court did not consider the fact that when the notice was issued to plaintiff to ascertain the situation but why did the respondent No.1 appear and gave statement? This fact was brought into the notice of the Ld. Lower Court but Ld. Lower Court turned down this submission hence the impugned order is liable to be set- aside.
L) That the Ld. Lower Court did not consider the fact that after execution of alleged sale deed dt. 10.08.2001, the respondent Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:34:03 +05'30' No.1 had itself ceased his right to represent the plaintiff as her attorney before any authority or to give his statement hence the mutation of the land of the plaintiff without her statement before Ld. SDM office is null and void hence the impugned order is liable to be set-aside.
M) That the Ld. Lower Court failed to appreciate that the plaintiff clearly admitted in her suit that he never authorized the respondent No.1 as her attorney but the respondent very cleverly and fraudulently obtained her thumb impressions on various blank papers in the garb of loan documents, hence the finding of the Ld. Lower Court are not reliable and hence the impugned order is liable to be set-aside. N) That the Ld. Lower Court failed to appreciate the fact that the plaintiff is an illiterate lady and put her thumb impressions in the garb of loan documents but this fact was not considered by the Ld. Lower Court while deciding the suit, hence the impugned order is liable to be set-aside. O) That the Ld. Lower Court failed to appreciate the fact that the plaintiff always authorized her husband as her attorney then why did the plaintiff appoint a stranger i.e. the respondent No.1 herein as her attorney to dispose of her SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:34:17 +05'30' large property without any consideration hence the impugned order is liable to be set-aside.
P) That Ld. Lower Court failed to appreciate the fact that in the Sale Deed the respondent No.1 showed only GPA and did not show any Sale Agreement but he submitted alleged Sale Agreement, Possession Letter, Receipt etc. of dated 05.01.2000. On the other hands, the plaintiff clearly mentioned in his plaint that in the office of SR concerned the respondent No.1 obtained her thumb impression on many blank papers in the garb of loan documents, which proves that the respondents manipulated such those documents upon which he had already obtained the thumb impression of the plaintiff in the shape of alleged Sale Agreement, Receipts etc. It is pertinent to mention here that in the entire written statement, in cross examination and in evidence, the respondent never disclosed that except alleged GPA and WILL dated 10.11.2000, any 15 other documents was ever executed by the plaintiff on 10.01.2000 on 05.01.2000, but the Ld. Lower Court wrongly relied on the GPA dated 10.01.2000, which is not reliable and impugned order is liable to be set aside.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:34:30 +05'30' Q) That the Ld. Lower Court did not consider the fact that PW- 1 admitted that a loan amount of Rs.50,000/- was paid by the respondent No.1 at his house in the evening and PW-2 admitted that a loan amount of Rs.50,000/- paid to the plaintiff by was the respondent No.1 at his house in the morning. PW-2 admitted that he brought plaintiff Ramrati to the house of respondent No.1 in the morning and from his house, Rajiv Dagar brought the plaintiff Ramrati alone to some other place and came back after noon and from the house of Rajiv Dagar, he brought Ram Rati to her house. Both witnesses the receipt of only Rs.50,000/- but there is different of place of payment. In fact both PWs have admitted loan amount of Rs.50,000/- but the Ld. Lower Court considered the place of payment but did not consider that only a loan of Rs.50,000/- was paid by respondent No.1 to the plaintiff. This proves that only Rs.50,000/- was paid by the respondents No.1 to the plaintiff therefore finding of the Ld. Lower Court about the place of payment are not reliable and hence the impugned order is liable to be set- aside.
SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:34:45 +05'30' R) That the Ld. Lower Court did not consider the fact that in cross examination the DW-1 Rajiv Dagar admitted that Ram Rati had executed a GPA in his favour on 10.08.2000 at 11 A.M. in Janakpuri. It is also admitted by DW-1 in his cross examination that the possession was taken over by him on 11.08.2000 but in the written statement the respondents disclosed that Ramrati executed GPA on 10.11.2000 but the Agreement to Sell, Possession Letter, receipts etc. are of dated 05.01.2000. In the entire written statement the respondent never disclosed that any amount was paid by him to the plaintiff but only stated that the plaintiff executed a GPA and WILL dated 10.11.2000. There are these contradictories statements, which creates doubt in the authenticity of documents and hence the impugned order is liable to be set-aside.
S) That the Ld. Lower Court failed to appreciate the fact that on 18.08.2015 in his cross examination the DW-1 also admitted that, "It is correct that I have filed a suit for possession is pending before the Hon'ble High Court of Delhi in respect of the property in question". "Vol. I have filed the above said suit before the High Court of Delhi because the plaintiff her Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:34:59 +05'30' husband was trying to take the possession of the suit land for opening old age home. It happens about three years ago". "I do not remember the exact date of incident". It is correct entire land of the property is bounded one". "I have never asked to the plaintiff for possession in respect of the property 800 sq. yds. in writing. I have not issued any legal notice to the plaintiff before filing of the suit for possession before High Court of Delhi". It is also admitted in cross examination that "I had handed over the possession of the property 800 sq. yds to my father on 11.11.2001". The DW-1 admitted that, "I have received the notice of the present suit in the year 2007" "It is correct that I have filed the suit for possession before the Delhi High Court after receiving of notice of the present suit". In fact the respondents filed suit for possession before Hon'ble High Court of Delhi in the year 2010. There are Contradictory statement in the cross examination about the possession of the land in appeal, which was to be considered by the Ld. Lower Court but failed hence the impugned order is liable to be set-aside. T) That Ld. Lower Court failed to appreciate the facts that why the respondents neither got electricity and water connections Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:35:12 +05'30' transferred in his name nor the respondent got ration card and election card transferred in his name. This proves that the respondent never purchased the property in appeal but they manipulated the 1oan documents as GPA as the plaintiff was an il1literate so the impugned order is liable to be set-aside.
15. Notice of the appeal was issued to respondents and they put their appearance through Ld. Counsel. During the pendency of the appeal certain applications were filed out of which some were disposed off by the Ld. Predecessor of this Court and the remaining pending applications were not pressed at the time of arguments.
16. Both the parties had filed their short submissions at the time of arguments. The Ld. Counsel argued in tandem with the grounds taken by him in appeal as well as in the written submissions and prayed that the present appeal may be allowed and the impugned Judgment be set-aside and decreed in favour of the appellant/plaintiff. On the other hand the Ld. Counsel for the respondents supported the impugned Judgment passed by the Ld. Trial Court and argued in tandem with the grounds taken in the written submission and prayed for the dismissal of the present appeal being devoid of merits. I have heard the arguments of Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:35:26 +05'30' respective Counsel at length and have gone through the entire case file of the Ld. Trial Court and the written submissions of both the parties.
17. Before adverting to the grounds for challenge of the impugned Judgment passed by the Ld. Trial Court it is relevant to reproduce the reasons given by the Ld. Trial Court while deciding the Issue no.2 as framed in the suit, which is the core issue on the basis of which the Ld. Trial Court had decided the remaining issues and ultimately dismissed the suit of the plaintiff.
"Issue no. 2:- Whether the plaintiff is entitled to a declaration to the extent that the GPA in favour of defendant no. 1 and sale deed in favour of the defendant no. 2 with respect to suit property are null and void and consequently the relief for cancellation of these documents? OPP.
15. Onus to prove the aforesaid issue was upon the plaintiff. It is submitted by counsel for plaintiff that the plaintiff has been able to discharge her onus to prove the aforesaid issue by examining PW-1 and PW-2 in support of her case, who Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:35:41 +05'30' have categorically deposed in their evidence by way of affidavits that the plaintiff had taken a loan of Rs. 50,000/- from the defendants at an interest rate of 2% per month on 10.11.2000 and mortgaged the suit property for a period of three months with the defendants and the defendants under the pretext of preparation of the loan documents have taken the plaintiff to the office of Sub Registrar and got her signatures on some documents, of which the plaintiff is seeking cancellation/declaration as null and void. They have further deposed that she had come to know that the defendants have manipulated and misused the aforesaid documents to grab the property of the plaintiff when in the month of September 2007 some person representing himself to be the property dealer had come to the suit property and told the husband of the plaintiff that he was going to purchase the portion of suit property from the defendants. It is submitted by counsel for plaintiff that the aforesaid documents were only executed by the plaintiff for mortgage of the suit property and there was no occasion for the plaintiff to appoint the defendant no. 1 as her attorney particularly when her husband was alive and had always SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:35:57 +05'30' been representing the plaintiff. He submits that the documents filed by the plaintiff on 07.12.2016 in respect of several cases filed by several persons against the defendants shows the modus operandi of the defendants who are in the habit of cheating innocent persons by getting the title documents in respect of their properties signed from them under the pretext of loan documents at the time of grant of loan to them. He submits that the difference in dates of execution of the different documents relied upon by the defendants in support of their title and the is conduct of defendant no. 1 in appearing before the Tehsildar on behalf of the plaintiff for mutation of the suit property in the name of defendant no. 2, case serious doubts about the veracity of the defendant's case that the plaintiff had executed the alleged GPA and the other documents in favour of defendant no. 1 in respect of the suit property. He further submits that admittedly the plaintiff is still in possession of the suit property and it is highly improbable that a person purchasing immovable property will not take the possession of the same for more than 07 years from the date of aforesaid purchase. The aforesaid facts, according to the Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:36:13 +05'30' counsel for plaintiff cumulatively renders the case set up by the plaintiff reasonably probable and as such the plaintiff is entitled to decree of declaration in respect of registered GPA dated 10.01.2000 and the registered sale deed dt. 10.08.2001 as null and void not conferring any title and interest in respect of the suit property on the defendants.
16. On the other hand, it has been submitted by counsel for defendants that the plaintiff has failed to discharge her onus to prove the aforesaid issue. He submits that the plaintiff has failed to step into the witness box to prove her case and as such an adverse inference needs to be drawn against her and her suit is liable to be dismissed only on this ground. He further submits SPA dt 20.10.2007 allegedly executed by the plaintiff in favour of her husband on 20.10.2007 vaguely states that the plaintiff had been suffering from some permanent ailment without commenting upon the details of the said illness and hence according to him the SPA was executed by the plaintiff merely to create a ground for challenge of the documents executed by the plaintiff in favour of defendant no. 1 and by defendant no. 1 in favour of SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:36:28 +05'30' defendant no. 2 on the ground of illiteracy of the plaintiff. He submits that the aforesaid SPA was executed merely to avoid the witness box is further apparent from the fact that the plaintiff has executed two sale deeds in respect of portions of the property of which the suit property also forms a part on 21.06.2007 and 22.06.2007 respectively. In fact, according to the counsel for defendants there is no evidence adduced on behalf of the plaintiff in the form of any medical document to substantiate the plea of the plaintiff that she could not be examined in evidence due to her illness. It is submitted by counsel for defendants that it was not the duty of the defendants to call the plaintiff before Tehsildar for mutation and in case the attorney of plaintiff appears in response to the notice sent to the plaintiff, the Tehsildar was perfectly right in mutating the suit property in the name of defendant no. 2. According to counsel for defendant, the plaintiff has miserably failed to prove the alleged loan transaction between the plaintiff and defendants by leading any cogent evidence and she has not denied her thumb impressions on the registered GPA Ex DW1/1 and as such she is not entitled for either the declaration as prayed for by Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:36:45 +05'30' her or the decree of permanent injunction. It was further submitted by counsel for defendants that case of the plaintiff must stand on its own legs and plaintiff cannot be permitted to take the benefit of deficiencies in the case of defendants, if any.
17. I have heard submissions made on behalf of the parties and have also perused the record. In my considered opinion the main plank of the case of plaintiff is that the defendants in collusion and in connivance with each other have fraudulently obtained the thumb impressions of the plaintiff on the GPA Ex DW1/1 on the pretext of execution of the loan documents and have subsequently misused the aforesaid document to grab the property of the plaintiff as she had availed a loan of Rs. 50,000/- due to her illness from the defendants. The plaintiff has not denied her thumb impressions on the document Ex DW1/1 and her only plea is that the said thumb impressions were obtained by defendant no. 1 fraudulently on the pretext of execution of loan documents. It is settled legal position that a person who alleges fraud must prove the same by leading cogent SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:37:00 +05'30' evidence. Merely because a person is illiterate is not a ground by itself to presume that his thumb impressions have been obtained on a document fraudulently particularly when the aforesaid document has been duly registered at the office of Sub Registrar admittedly in the presence of the executant in as much as a registered document carries a stronger presumption in favour of its genuineness. According to the plaintiff, she had fallen prey to the conspiracy of the defendants since she had availed a loan of Rs. 50,000/- from the defendants and they had accordingly, taken her to the office of Sub Registrar and obtained her signatures on the pretext of loan documents. In my considered opinion, the plaintiff has even failed to prove the alleged loan transaction between the plaintiff and defendants. She has failed to step into the witness box and to depose about the actual circumstances under which the thumb impressions were put by her on the GPA Ex DW1/1. An adverse inference on account of non examination of plaintiff on a witness to prove her case needs to be drawn against the plaintiff particularly when no evidence has been led on behalf of the plaintiff to prove that she was unable to appear and depose in the Court Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:37:17 +05'30' on account of any illness. On the contrary, PW-2 during his cross examination has admitted that plaintiff can move around and does all her household work. He has further admitted that she was healthy enough to perform her household work. A perusal of file shows that in fact after closure of the plaintiff's evidence on a statement of counsel for plaintiff, an application u/s 151 CPC was filed on behalf of plaintiff alongwith her affidavit in evidence seeking leave of the Court to examine the plaintiff by reopening the plaintiff's evidence. The aforesaid application was dismissed by Ld Predecessor of this Court way back on 23.01.2014 and in case the plaintiff was actually interested in examining herself she should have challenged the aforesaid order before the superior Court but the aforesaid order was not challenged by plaintiff at any stage of the trial and she had allowed that order to attain finality.
18. Moreover, the two witnesses examined by the plaintiff in support of her case have given contrary version as to the grant of alleged loan of Rs. 50,000/- by the defendants to the plaintiff and admittedly none of them was present at the Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:37:34 +05'30' office of Sub Registrar when the document Ex DW1/1 was allegedly executed by the plaintiff in favour of defendant no.
1. A bare perusal of cross examination of PW-1 dated 08.05.2013 shows that according to PW-1 the loan of Rs. 50,000/- was given by defendant no. 1 to the plaintiff at residence of plaintiff in the presence of PW-1 and 2-3 other persons of village ujwa namely Nawal Kishore Sharma and Surinder whereas according to PW-2 the loan of Rs. 50000/- was given by defendant no. 1 to the plaintiff at the residence of defendant no. 1 and than the plaintiff was taken to the house of defendant no. 1 by PW-2 and no person other than defendant no. 1, plaintiff and PW-2 was present at the time of taking the aforesaid loan by the plaintiff from the defendant no. 1. Besides, as per the plaintiff as well as the witnesses examined by her in support of her case, the alleged loan was taken by plaintiff from the defendants in the month of November 2000 and it was at the time of taking alleged loan by the plaintiff that the defendants have obtained the thumb impressions of plaintiff on the alleged GPA Ex DWI/1. A bare perusal of the aforesaid GPA shows that the same was registered at the office of Sub Registrar on Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:37:51 +05'30' 10.01.2000 and as such, in the absence of any evidence to the contrary, it has not been proved by the plaintiff that the thumb impressions of the plaintiff on the aforesaid document were obtained by the defendants at the time of alleged loan transaction in the month of November 2000 in as much as it is highly improbable that his documents executed in the month of November 2000 could have been registered at the office of Sub Registrar in the month of January 2000.
19. The documents filed by the plaintiff after conclusion of evidence on behalf of both the parties on 07.12.2016, in my considered opinion, have got no evidenciary value whatsoever since all the aforesaid documents were required to be tendered in evidence by the plaintiff's witnesses and the defendants should have got an opportunity to cross examine the witnesses on the aforesaid documents before the said documents can be read in evidence by the Court. Even otherwise, all the aforesaid documents are pleadings in several litigations between defendants and some third parties and trial in the aforesaid cases not yet been concluded and no finding on the pleas taken by the parties in SACHIN Digitally signed by SACHIN JAIN JAIN Date: 2022.01.27 18:38:08 +05'30' the aforesaid proceedings had till date been given by the respective Courts and as such no inference as to the conduct/modus operandi of the defendants to cheat the public can be raised by the Court on the basis of aforesaid documents which contain bald allegations which are required to be proved before the concerned Courts. I also did not find any force in the submissions of the counsel for plaintiff that merely because the GPA is dated 10.01.2000 and the other documents relied by the defendants are dated 05.01.2000, the same is sufficient in itself to prove the case of the plaintiff that the thumb impressions of the plaintiff were fraudulently obtained on the GPA Ex DWI/1. In fact the plaintiff had not even challenged the remaining documents purportedly executed by plaintiff in favour of defendant no. 1. Besides, in my considered opinion, the plaintiff cannot take the benefit of the aforesaid discrepancies, in view of the settled legal position that the case of plaintiff must stand on its own legs and the plaintiff cannot take the benefit of deficiencies/lacunas, if any, in the case of defendants. As has already been observed hereinabove, in my considered opinion, the plaintiff has SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:38:33 +05'30' failed to prove that her thumb impressions on the document were fraudulently obtained by the defendants on the pretext of loan document by leading any cogent evidence in as much as she has failed to examine herself in support of her case and even the alleged loan transaction has also not been proved by witnesses examined by her in support of her case.
20. Since the plaintiff has failed to prove that the thumb impressions of the plaintiff on the alleged GPA Ex DW1/1 were obtained by the defendants fraudulently and that she is entitled to the declaration in respect of the aforesaid GPA as null and void, in my considered opinion, she is not entitled to a decree of declaration in respect of the sale deed Ex DW1/5. The issue is accordingly decided against the plaintiff and in favour of the defendants."
XXXXXXXX
18. After going through the reasons given by the Ld. Trial Court in light of the pleadings and evidence lead by respective parties before it, I do not find any substance in any of the grounds taken in this appeal to challenge the impugned judgment. The reasons given by the Ld. Trial Court in dismissing the suit are based upon sound Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:38:54 +05'30' appreciation of facts and evidence on record and some of the additional reasons of my own in upholding the impugned judgment are as under.
19. Before adverting further, it is relevant to mention that the Ld. Counsel for the appellant during the course of arguments and even on bare perusal of the grounds of appeal, is heavily relying upon the discrepancies in the evidence of the defendants instead of relying upon the evidence adduced by the plaintiff before the Ld. Trial Court.
20. Therefore, it is apposite to reproduce the principles of law of evidence as to burden of proof as laid down by the Hon'ble Apex Court in the case titled as Anil Rishi vs Gurbaksh Singh on 2 May, 2006 in following words:-
-The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
-"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Digitally signed by SACHIN
SACHIN JAIN JAIN
Date: 2022.01.27 18:39:12
+05'30'
-In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it.
-The said rule may not be universal in its application and there may be exception thereto. For example
-"Sec. 111.of the Indian Evidence Act, which provides that - Proof of good faith in transactions where one party is in relation of active confidence.
-Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."
-However, In the present case defendants having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:39:31 +05'30'
-Therefore, the fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.
21. In light of the settled legal position reproduced above, in the present case, similar to the facts of the above stated case, the defendants in joint written statement denied all the averments of the plaintiff and in para 3 of reply in merits had specifically denied any fiduciary relationship with the plaintiff. Therefore, initially the burden of proof lies on the plaintiff to prove her case as asserted in the plaint including the existence of fiduciary relationship with the defendants.
22. However, Plaintiff in her evidence, failed to lead any oral or documentary evidence to prove that the plaintiff and the defendants were ever in any fiduciary relationship.
23. In fact the plaintiff herself never entered the witness box to prove her version of the case.
24. Further, the plaintiff in her evidence failed to prove that she was in fact suffering from any ailment in the month of November 2000 regarding the treatment of which loan amount was required. Further, in the cross examination, PW-1 husband of the plaintiff being SPA of plaintiff stated that the loan was taken from Digitally signed by SACHIN SACHIN JAIN JAIN Date: 2022.01.27 18:39:48 +05'30' defendant no.1 Rajiv Dagar, in presence of persons of his village Ujwa namely one Nawal Kishore Sharma and Surender. However, the plaintiff neither examined Nawal Kishore Sharma nor Surender to prove the fact of taking loan from the defendants and on the other hand PW-2 namely Rajbir in his evidence had stated that the loan was given in his presence, which is contradictory to the stand of PW-1.
25. Further, even though it is stated that the said loan was returned to the defendants as agreed, however, no evidence is led before the trial Court to prove that fact. Even the plaintiff failed to mention any date, month or year when the said loan was returned to the defendants and even PW-1 and PW-2 had not mentioned any date, month or year on which the loan was returned, the mode of payment or any person in whose presence the loan was returned.
26. Therefore, the plaintiffs failed to prove firstly the taking and thereafter the returning of loan to the defendants.
27. It is rightly held by the ld. Trial Court, that the both the plaintiff witnesses gave contrary version as to the grant of loan to the plaintiff.
28. Further, it is the star argument of the Ld. Counsel for the plaintiff that in the written statement in sub para (i) of No.6 the Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:40:06 +05'30' respondents clearly alleged that the plaintiff on 10.11.2000 appointed the defendant No.1 as her General Power of Attorney in respect of plot of 800 sq. yds. bearing Khasra No.354, Lal Dora, Village Ujwa, New Delhi. In the said para it is also mentioned that the said GPA was duly registered in the office of SR concerned vide documents No. 1801, Book No.4, Volume No. 6763, Page No.93-94 but the Ld. Lower Court relied on the documents Exbt. DW-1/1 GPA dated 10.01.2000. From these contradictory dates it is crystal clear that there must have been two documents manipulated by the defendants/ respondents but the Ld. Lower Court did Consider this facts hence the impugned order is liable to be set-aside.
29. However, except the argument of the Counsel for the appellant that the Ld. Trial Court has not given any reason for relying upon the GPA dated 10.01.2000, this Court does not find any merit in the argument of the Ld. Counsel for the appellant on the ground that the GPA dated 10.01.2000 and 10.11.2000 is one and the same document and the entire confusion arose due to typographical error committed by the person who drafted the impugned sale deed dated 10.08.2001. On perusal of the impugned sale deed dated 10.08.2001 it is specifically mentioned that Vendor Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:40:24 +05'30' is executing sale deed on the basis of GPA registered as "document no. 1501, in additional book no. iv, Volume no. 6763, on page no. 93 to 94 on dated 10.11.2000, registered in the office of Sub- registrar, New Delhi", on the other hand on perusal registered GPA Ex.DW1/1, all the particulars i.e. book no.1501, volume no.6763 and page no.93 to 94 are same however, the date of registration mentioned is 10.01.2000. It is worthwhile to mention that the date on the GPA is written in such a way that at first instance it seems like the same is executed on 10.11.2000; however, if one examines it carefully the date mentioned is 10.01.2000 and not 10.11.2000. Therefore, there is no merit in the argument of the Ld. Counsel for the appellant.
30. It is further worthwhile to mention that this Court is of the considered opinion that even the plaintiff on the basis of the date mentioned as 10.11.2000 in the sale deed due to typographical error, concocted the story of taking loan in the month of November 2000 on the ground of treatment of her illness and fraudulent execution of documents by the defendants from the plaintiff under the pretext of taking security for the repayment of alleged loan and on this ground alone the case of the plaintiff falls flat as held by the Ld. Trial Court that it is not possible that in case SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:40:47 +05'30' the documents as alleged by the plaintiff if got signed/thumb impression taken from the plaintiff in November 2000, how the impugned GPA can be executed in back date i.e. 10.01.2000 by calling the Plaintiff before the Registrar Office in November 2000 i.e. 10 months before the date when the defendant as alleged that she was taken to the registrar office for execution of security documents. It is not the case of the plaintiff that the thumb impressions are forged or the defendants impersonated her and another person appeared before the Sub-registrar for execution of the GPA. More so, During cross-examination PW-1 husband of the plaintiff being SPA of plaintiff identified her photo at point X1 and photo of defendant no.1 at point Y1on GPA dated 10.01.2000, which at that relevant time was only marked as D1 and the original GPA was later on tendered as Ex. DW1/1 by defendant no.1 in his evidence.
31. Further, the plaintiff has suppressed material facts from the Ld. Trial Court as in the plaint in para no.16; it is pleaded by the plaintiff that "The plaintiff has never sold her suit property or any portion thereof to any one or the defendants or defendant no.2 at any point of time." However, during cross-examination the PW-1 specifically admitted that "In the year 2007 my wife had sold the SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:41:10 +05'30' plots out of this khasra no. 354. One plot was sold by my wife to one Smt. Saroj through regd. Sale deed. I identify the photo of my wife at point X in the certified copy of the sale deed same is Ex. PW1/D1 and My wife also sold another plot to one Smt. Veena Devi though sale deed the certified copy of the same is Ex. PW1/D2.xxxxxx I also admitted and identify the thumb impression of my wife on the aforesaid sale deeds xxxx".
32. It is relevant that the Apex Court in Dalip Singh v. State of U.P. (2010) 2 SCC 114 condemned the practice of misrepresentation of facts and suppression of material facts & observed as under:
"For many centuries, Indian society cherished two basic values of life i.e., Satya (truth) and `Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:41:30 +05'30' up.
Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
33. Therefore, the case of the plaintiff is liable to be dismissed on this ground alone.
34. In light of the additional reasons reproduced above there are no merits in the case of the plaintiff. Apart, from the above additional reasons, this Court is in complete consonance with the reasons given by the Ld. Trial Court.
35. The argument of the Ld. Counsel for the appellant that on 12.11.2007 the defendants when appeared in person before the Ld, trial Court had stated that they are the property dealers and purchased the suit property for 24 lakhs from the plaintiff and on the other hand the sale deed executed by defendant no.1 in favour of defendant no.2 is only for Rs. 70,000/- is of no help to the plaintiff in light of the decision of the Hon'ble Apex Court in M/S.Kapil Corepacks Pvt.Ltd.& ... vs Harbans Lal (D) Thr.Lrs Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:41:50 +05'30' on 3 August, 2010, while discussing the scope of examination under order 10 CPC has held as follows:
10. Rule 1 enables the court to ascertain from each of the parties (or his pleader), at the first hearing whether he admits or denies such of those allegations of fact made in the pleadings of the other party, which were not expressly or by necessary implication admitted or denied by him. In other words, if the defendant in his written statement fails to expressly or by necessary implication admit or deny any of the plaint allegations, the court can ascertain from the defendant, whether he admits or denies the said plaint allegations. Similarly, if the defendant has made some allegations against the plaintiff in his written statement, and no reply is filed thereto by the plaintiff, the court can ascertain whether plaintiff admits or denies those allegations. Resort to Rule 1 of Order 10 is necessary only in cases where the court finds that the plaintiff or the defendant has failed to expressly or impliedly admit or deny any of the allegations made against him, by the other party.
Examination under Order 10 Rule 1 of the Code will not be necessary where the pleadings of each party have been fully and clearly traversed by the other party.
11. On the other hand, the examination under Rule 2 of Order 10 of the Code, need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit. Further, under Rule 1 Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:42:12 +05'30' of Order 10, the court can examine only the parties and their advocates, that too at the `first hearing'. On the other hand, Rule 2 enables the court to examine not only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings. The object of oral examination under Rule 2 of Order 10 is to ascertain the matters in controversy in suit, and not to record evidence or to secure admissions. The statement made by a party in an examination under Rule 2 is not under oath, and is not intended to be a substitute for a regular examination under oath under Order 18 of the Code. It is intended to elucidate what is obscure and vague in the pleadings. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. The power under Order 10 Rule 2 of the Code, cannot be converted into a process of selective cross-examination by the court, before the party has an opportunity to put forth his case at the trial.
36. Therefore, the said statement made by the defendants being not on oath does not fall under the category of Evidence per se. Even the plaintiff failed to put that statement to the defendant no.1 during his cross examination before the Ld. Trial Court. Digitally signed by SACHIN JAIN
SACHIN JAIN Date: 2022.01.27 18:42:34 +05'30'
37. The ld. Counsel for the appellant further argued that in light of the Judgment titled as Suraj Lamp & Industries (P) Ltd. (2) vs. State of Haryana (2012) SCC 656, it was held by the apex Court that GPA does not create any right title or interest in favour of the holder and neither confer any right in favour of the attorney holder to execute sale deed on the basis of said GPA. However, this Court is of the considered view that the Ld. Counsel has not read the judgment in its true prospect. As per the ratio of the Suraj Lamp judgment (supra), SA/GPA/WILL sales by itself cannot confer title over the suit property and that can be done only on the basis of registered conveyance (sale) deed.
38. However discussing the scope of General Power of Attorney, it was held in Suraj Lamp (supra) as follows:
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made Digitally signed by SACHIN JAIN SACHIN JAIN Date: 2022.01.27 18:42:54 +05'30' irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:43:14 +05'30' and the donee." An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
39. In light of the legal position reproduced above, there is no iota of doubt that the donee in exercise of power conferred by power of attorney can act in place of the donor subject to the powers granted to him. In the present case on perusal of the GPA dated 10.01.2000, power is expressly given to defendant no.1 vide clause no.6 to sell and receive consideration amount and execute the proper deeds etc and present the same for registration in the office of sub-registrar.... And further vide clause no. 14 to apply for and arrange mutation, charges entries in all concerned official records..., therefore, the plea taken by the Ld. Counsel for appellant is not sustainable.
40. As far as the argument of the ld. Counsel with regard to contradiction in the testimony of the DW-1 regarding the dates of the alleged sale documents relied upon by the defendants is concerned, this Court is in complete consonance with the reasons given by the Ld. Trial Court that the plaintiff cannot take benefit of SACHIN JAIN Digitally signed by SACHIN JAIN Date: 2022.01.27 18:43:34 +05'30' the discrepancies in defendants case, in view of the settled legal position that the case of the plaintiff must stand on its own legs.
41. Similarly, all the remaining grounds taken by the plaintiff/appellant in the present appeal are devoid of merits as the plaintiff is trying to put the cart before the horse by relying upon the contradictions in the pleadings as well as the evidence lead by the defendants without discharging the initial burden which was on him by leading affirmative evidence.
42. No other ground was agitated before this court.
43. From the aforesaid discussion, the present appeal same stands dismissed. All pending application, if any, also stands dismissed.
44. Decree sheet be drawn accordingly.
45. Trial Court record be sent back forthwith along with copy of this judgment.
46. Appeal file be consigned to record room only after due completion and necessary action, as per Rules. Digitally signed by SACHIN
SACHIN JAIN JAIN
Date: 2022.01.27 18:43:57
+05'30'
Pronounced in the open (Sachin Jain)
Court on 27.01.2022 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi