Delhi District Court
Kiran Kumar vs Ravinder Kumar on 7 March, 2020
IN THE COURT OF JSCCCUMASCJCUM GDN. JUDGE:
NORTH DISTRICT, ROHINI: DELHI
PRESIDING OFFICER: AANCHAL, DJS
Suit No.537796/16
In the matter of:
1.Kiran Kumar S/o Sh. Hans Raj Gupta, R/o - C125, Ramesh Nagar, New Delhi - 110015
2. Saurabh, S/o Sh. Rajinder Kumar Malhotra, R/o - 104, Kirti Nagar, New Delhi 110015
3. Smt. Neelam Malhotra, W/o Sh. Rajinder Kumar Malhotra, R/o - 104, Kirti Nagar, New Delhi - 110015 ..........Plaintiffs Versus
1. Ravinder Kumar S/o Mahender Singh, R/o - Village & P.O. Pooth Kalan, Delhi
2. Devender Kumar S/o Mahender Singh R/o - Village & P.O. Pooth Kalan, Delhi ..........Defendants Date of institution : 17.11.2009 Date of reserving Judgment : 29.02.2020 Date of announcement of Judgment : 07.03.2020 Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 1 of 30 JUDGM ENT
1. This suit was initially filed by plaintiff against above two defendants and also against Sh. Mahender Singh as defendant No.3 but vide order dt. 05.04.2010 passed by ld. Predecessor of this court, the suit stood only against above two defendants. Now, the suit (as amended vide order dated 17.02.2014) exists as filed by the plaintiff seeking the following reliefs:
(a) A decree of the specific performance of agreement to sell dated 22.07.1987 thereby directing the defendants to perform this agreement and execute the sale deed in respect of land measuring 7 bighas 3 biswas situated in khasra No.38/23(412), 24(27) and 30(04) situated in the revenue state of village Nizampur, Delhi (hereinafter called as the suit property ) in favour of the plaintiffs
(b) decree of permanent injunction thereby restraining the defendants from interfering in the peaceful use occupation and enjoyment of the suit property and to restrain them from selling, alienating or creating thirdparty interest in the suit property in any manner whatsoever till the disposal of the suit.
(c) decree of recovery of ₹ 30,000 along with 24% interest from the date of payment and its repayment in the form of an alternate relief in the event if for any reason, the performance of agreement to sell is not possible.
2. In brief, the facts are stated in the plaint are that :
2.1 The plaintiff No.1 and one Rajendra Kumar Malhotra i.e. father of plaintiff No.2 and husband of plaintiff No.3 had entered into an agreement to sell dated 22.07.1987, GPA and receipt for the sum of ₹ 30,000 and affidavit of same date with the defendants No.1 and 2 Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 2 of 30 through their father Mahender Singh as defendants No.1 & 2 were minor at the time of execution of the documents). This agreement was executed between the plaintiffs and defendants for purchase of the suit property. Since Rajendra Kumar Malhotra expired on 30.04.2008, the rights in the suit property were inherited by plaintiffs No.2 and 3 being the son and wife of the deceased by way of the succession. Further defendant No. one and two have also attained majority and they were major on the date of filing of suit.
(2.2) It is a stated that plaintiffs paid the sum of ₹ 30,000 to defendants No.1 and 2 by way of draft / payorder and cash. The plaintiffs paid the sum of ₹ 10000 in cash as advance at the home of defendants and another sum of ₹ 10,000 was paid by plaintiffs by pay order No. 153430 dated 21.7.1987 issued by the new Bank of India, Naraina branch, New Delhi and another sum of ₹ 10,000 was paid by the plaintiffs to pay order No. 1220531 dated 21.7.1987 issued by New Bank of India, Kirti Nagar branch, New Delhi.
(2.3) After receiving the total sale consideration, the defendants executed receipt in favour of the plaintiffs and affidavit was also executed in which defendants No.1 & 2 have mentioned that they had executed agreement to sell, general power of attorney and receipt in favour of the plaintiffs and that they will not revoke or cancel the said documents in any circumstances.
(2.4) The plaintiffs have been handed over the possession of the land i.e. the suit property after execution of the documents and the plaintiffs had been in continuous use, occupation and possession of the land from the date of execution of the documents. In fact plaintiffs were Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 3 of 30 in possession and occupation of the suit property even before the date of execution of the documents in capacity of the tenant and the possession of the plaintiff has been continuous and uninterrupted.
(2.5) As per the terms and conditions of the agreement, the plaintiffs were required to obtain necessary permission for sale of execution of sale deed and also the guardianship certificate from District Judge. Plaintiffs have requested time and again to defendants to obtain the necessary sale permission as well as the guardianship certificate but the defendants could not obtain the same. Since the defendants No. 1 & 2 have become major so there is no need for obtaining the guardianship certificate but the defendants had not obtained the necessary permission for sale and they kept on avoiding the execution of sale deed and obtaining the permission from the competent authority.
(2.6) In spite of the requests and reminders made by the plaintiffs, defendants No.1 & 2 or defendant No.3 have not come forward to fulfill their part of obligation under the terms and condition of agreement to sell and when defendants did not accede to the request of the plaintiffs, having left with no option, the plaintiffs served a legal notice dated 02.09.2009 upon the defendants by way of registered AD by which the plaintiffs have requested the defendants to execute the sale deed. This legal notice was duly received by the defendants but in spite of the same, defendants have not come forward for execution of the sale deed.
(2.7) Now, plaintiffs have come to know that the defendants are trying to dispose of the suit property by selling it to some other persons as Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 4 of 30 the value of the property has gone high in the market and they have threatened the plaintiff that they will further sell the suit property to some third party and plaintiff will not be able to do anything and being apprehensive, the plaintiffs have also prayed for directions till the disposal of the plaint.
(2.8).Finally it is stated that plaintiffs are willing to perform their obligations in the agreement and to do each and everything which is required to be done for execution of sale deed but defendants are not willing to execute the same.
With these facts, the plaintiffs have filed the present suit.
3. The defendants No.1 & 2 filed a written statement.
3.1 In written statement, the suit is preliminary objected on the ground that no cause of action for filing of the present suit arose. It is stated that no agreement was ever entered into between late Sh Mahendra Singh and plaintiff No.1 and the agreement is Sham, bogus, forged and fabricated document created by plaintiffs to grab the suit land and the suit property was never handed over to the plaintiffs and the suit property has always been in possession and occupation of the defendants all the time and that even if it is assumed that agreement was executed, no permission from the court of guardianship Judge for entering into the agreement of sale of the land in question was ever taken despite the specific provisions of section 8 Hindu minority and guardianship act, 1956 and the plaintiffs have approached the court after substantial delay which establishes that plaintiff has waived off/abandoned alleged right and on account of the delay, there have been such Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 5 of 30 changes of circumstances that specific performance would prejudice the defendants. Further the agreement was not registered thereby the same is inadmissible in the judicial record by virtue of amended provisions of section 17 of the Registration act and correspondingly inviting the provisions of section 53A of transfer of property act as amended and these two provisions prohibit any transaction involving transfer of interest without there being a registered document inscribed on a stamp paper.
3.2 On merits, the agreement of sale, GPA are denied as executed by Mahendra Singh. It is also denied that the sum of ₹ 30,000 was paid or the possession of the suit property was handed over or the plaintiffs were in occupation and possession of the suit property before the date of execution of alleged agreement in the capacity of tenant or plaintiffs ever requested the defendants for obtaining sale permission or plaintiffs ever requested the defendants for obtaining sale permission from the court of guardianship Judge or defendants kept on avoiding execution of sale deed or obtaining the permission from competent authority or notice dated 02.09.2009 was received by the defendants or it was served on the defendants. Finally, the suit of the plaintiffs is prayed to be dismissed.
4. Vide order dated 25.09.2014, the Ld. Predecessor of this court framed the following issues: i. Whether the plaintiff is entitled to the decree of specific performance of contract as prayed for ? OPP ii. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP iii. Whether the plaintiff is entitled to the decree of recovery of Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 6 of 30 Rs.30,000/ alongwith interest @ 24 % per annum as prayed for? OPP iv. Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action ? OPD v. Relief.
5. Sh. Kiran Kumar appeared as PW1 as witness and following documents are produced by him.
i. Original Agreement to Sell dt. 22.07.1987 already on record as Ex.PW1/1.
ii. Original GPA dt. 22.07.1987 already on record as Ex.PW1/2. iii. Original Affidavit dt. 22.07.1987 executed by defendant No.3 as Ex.PW1/3.
iv. Original Receipt of Rs.10,000/ dt. 08.07.1987 as earnest money paid to the defendants as Ex.PW1/4.
v. Original receipt dt. 22.07.1987 issued by defendant No.3 acknowledging the entire sale consideration paid by the defendant and Sh. Rajinder Kumar (now deceased) to the defendants as Ex.PW1/5.
vi. Copy of pay order No.153430 of Rs.10,000/ dt. 21.07.1987 issued by New Bank of India, Naraina, New Delhi and pay order No.122053 of Rs. 10,000/ dt. 21.07.1987 issued by New Delhi, Kirti Nagar, New Delhi in favour of defendants as Mark A & Mark B. vii.Statement / declaration in July 1987 before the Registering Officer under Section 8 of the Delhi Lands (Restrictions on Transfer) Act, 1972 as Ex.PW1/8.
viii.The copy of letter No.11251 dt. 20.07.1987 addressed to the office of the Sub - Registrar, Sub District No. II, Delhi as Ex.PW1/9.
ix. Original death certificate of the father of plaintiff No.2 as Ex.PW1/10.
Further, during crossexamination of PW1 on 28.02.2018, he was confronted with form P4 i.e. Khasra girdawari for the year 201617 and khatoni for the year 200304 as Ex.PW1/D1 and Ex.PW1/D2 respectively on behalf of defendants.
Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 7 of 30Besides him, Sh. Saurabh appeared as PW2, Sh. Rajesh Kumar @ Raju as PW3, Sh. Sat Prakash as PW4. On the other hand, Sh. Ravinder Kumar appeared as DW1 and Sh. S. M. Bagri from office of Kanungo, District North - West, Kanjhawala, Delhi was examined as DW2 and he produced record of Form - P 4 i.e., Khasra Girdawari in respect of admeasuring 7 bighas 3 biswas situated in Khasra No.38/23 (4 - 12), 24 (2 - 7) and 30 ( 04) situated in the revenue state of Village Nizampur, Delhi for the periods 1990 till 2005 as Ex.DW2/1 (colly) (total page 15 pages) (OSR). This record produced is objected by the counsel for the plaintiffs on the ground that the summoned witness i.e., Patwari has not come before this Court.
6. Final arguments heard. Record is perused carefully.
7. Now this Court shall proceed to give its issuewise findings which are as under:
ISSUE NO.1 WHETHER PLAINTIFF IS ENTITLED TO THE DECREE OF SPECIFIC PERFORMANCE OF CONTRACT AS PRAYED FOR ?OPP & ISSUE NO.4 WHETHER THE SUIT FILED BY THE PLAINTIFF IS LIABLE TO BE DISMISSED FOR WANT OF CAUSE OF ACTION ? OPD
8.1 These two issues are being taken up together since the facts necessary to decide these issues are overlapping.
8.2 The onus to prove issue No.1 lies upon the plaintiff and onus to Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 8 of 30 prove the issue No.4 lies upon defendants.
8.3 Ld counsels for both the parties have gone through the pleadings of the parties and evidence existing on record in detail. It is contended by LD counsel for the plaintiffs that the execution of the documents by the father of the defendants has not been rebutted by the defendants therefore the agreement to sell executed by the father of the defendants on their behalf is well enforceable against the defendants and the refusal on the part of the defendants to execute sale deed in terms of the agreement to sell was made by them only in 2009 when the notice sent by the plaintiffs was also not replied by the defendants, hence the suit lies within the period of limitation i.e. within the period of three years from the date of refusal and the prayer for specific performance of this agreement should be granted in favour of the plaintiff. Stress is also made on the fact that the defendants are not even entitled to contest the claim of the plaintiff even on the ground that agreement to sell was not executed by their father after seeking permission from competent court of law, since the agreement executed by their father on their behalf was only voidable in nature rather than void ab initio and the defendants have failed to opt for the same within the period of three years from the date of attaining majority. Ld. counsel for the plaintiff also relies upon the following Judgments to substantiate his contentions :
1. Roomal & Ors. vs. Shri Niwas AIR 1985 Delhi 153.
2. Sh. Manik Chand & Anr. vs. Sh. Ramchandra, son of Chawiraj AIR 1981 MhLJ 196.
3. Janardhanam Prasad vs. Ramdas (2007) 15SCC174.
4. Vishwambhar & Ors. Laxminarayan (Dead) through L.R.s & Ors. AIR2001SC2607, 2001.Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 9 of 30
5. Ajay Vir Singh vs. Jhoney Singh & Ors. 2017IAD (Delhi)210.
6. Nagappan vs. Ammasal Gounder (2004)13SCC480.
On the other hand, it is submitted by Ld counsel for defendants that in fact if it is assumed that the stated documents were executed by the father of the defendants on their behalf, the plaintiffs kept on sleeping on their rights for long period of about 20 years even after the date of majority attained by the defendants. Attention is also drawn to the fact that plaintiffs have asserted in the plaint itself that they have been asking for execution of the sale deed but defendants were avoiding the Execution of Sale Deed which implies that defendants had been consistently refusing for the execution of the sale deed so it does not lie in the mouth of plaintiff to say that refusal on the part of the defendants was only in 2009 and the suit is submitted clearly barred by time. Reliance is also placed heavily on record of Khasra Girdawari Exhibit DW2/1 and it is stated that even the name of the defendants have been recorded therein even in the year 2003 2004 and also in 20162017 which proves that the defendants had been in the possession of the suit property, therefore this simplicitor suit for specific performance without seeking the possession does not lie and the present suit ought to be dismissed. Ld. counsel for the defendant also relies upon the following Judgments:
1. Irmeet Singh Kohli & Ors. vs. Ashok Kumar Batra & Anr. 2017 (243) DLT 668.
2. Parmanand & Kansottia vs. Seetha Lath 2012 (188) DLT 661.
3. Ravinder vs. Virender Singh 2007(143) DLT 666.
4. RFA 198/2009 titled as Som Dutt vs. Sharma Devi passed by Hon'ble High Court of Delhi on 25.01.2012.Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 10 of 30
8.4 Hearing the contentions of the parties, this Court finds that to decide the issues under consideration, following questions need to be answered:
1. Whether the agreement to sell and GPA was executed by the father of defendant No. 1 and 2?
2. Whether these documents were executed for the consideration?
3. Whether the possession of the suit property has been with the plaintiffs till the date of filing of the suit?
4. Whether the agreement to sell executed by the father of defendant No. one and two is enforceable against them?
5. If yes, whether the plaintiffs can ask for the execution of sale deed in their favour as on the date of the filing of the suit?
8.5 Now this Court shall appreciate the evidence brought on record to seek the answer of these questions:
Whether the agreement to sell and GPA was executed by the father of defendant No. 1 and 2?
(8.5.1) It is stated in the para No.1 of the plaint that the plaintiff No.1 and father of plaintiff No.2 entered into an agreement to sell and GPA dated 22.7.1987 with defendant No. 1 and 2 through defendant No.3 and at the time of entering into the agreement, the father of defendant No. 1 and 2 signed the documents on behalf of his minor sons and the agreement was executed in respect of the suit property. In reply to this para in their written statement, it is stated that no such agreement to sell was ever executed by defendant No. 3. In para No.1 of preliminary objections, it is stated that agreement is a Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 11 of 30 sham, bogus, forged and fabricated document created by the plaintiffs and father of defendants never executed any such agreement to sell or other document. In whole of the written statement, it is not specified why these documents are stated as sham, bogus forged or fabricated. Were these documents not bearing the signatures of the father of the defendants or these documents were signed by their father without knowing its contents, if so under what circumstances these signatures were put by their father? Were the documents the result of traced forgery? Written statement is only stating that the permission from the court to enter into the agreement on behalf of the minors was the condition precedent. It does not lead that the documents were forged or fabricated or sham or bogus. The plaintiff No.1 also filed the affidavit for his evidence in which it is a stated that they entered into the agreement to sell along with GPA with defendants through their father for the purchase of the suit property and he also produced original agreement to sell and GPA. Satprakash PW4 deposed that he is the attesting witness to these documents and these were executed by the father of the defendants in favour of the plaintiff No.1 and father of plaintiff No.2 in his presence and at that time another witness namely Roshan Lal was also present. Both these witnesses have been crossexamined at length on behalf of the defendants. During cross examination PW1 answered clearly that these documents were prepared and signed at Kashmiri Gate. PW4 also corroborated this fact. The only suggestion given to PW1 was that the documents are forged and fabricated, which was denied by him unambiguously. But no suggestion is given as to say what was Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 12 of 30 forgery or fabrication present on the document or what was the reason due to which these should be inferred as forged or fabricated. PW4 was also subjected to number of questions as to the names of the person present there, the language in which the parties to the document and the witnesses sign, who brought the stamp paper, on which paper the document was drawn etc. though the witness answered these questions, this court is of the view that all these questions are immaterial because firstly, the documents were executed in the year 1987 whereas the witness was under cross examination in the year 2019 and due to the lapse of about more than 30 years, inconsistencies and contradictions are natural, secondly, most of these questions were part of the record, thirdly the purpose of the cross examination is not to draw or find a defence but its purpose is to establish the defence stated in the written statement and fourthly, unless it was specifically pleaded by the defendants what was the forgery or fabrication on the documents, answers given naturally, cannot be speculated against the plaintiffs. Hence due to these reasons, this Court is of the view that defendants have failed to disprove the fact that the documents were executed by their father and the due execution of these documents by the father of defendants on their behalf is proved.
Whether these documents were executed for the consideration?
(8.5.2) It is stated in the plaint that in order to purchase the suit property, agreement of sale, GPA and receipt for the sum of ₹ 30,000 with affidavit were executed and plaintiffs paid the sum of ₹ 30,000/ out of which the sum of ₹ 10,000 was paid in cash as advance at Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 13 of 30 the home of the defendant and another sum of ₹ 20,000 was paid through two pay orders each for the sum of Rs 10000/ and dated 21.7.19 87. The plaintiff No.1 also produced original receipt as exhibit PW1/5 and he also produced the copy of two demand drafts as Mark A and B. PW4 Satprakash also deposed that this receipt was also signed by the father of the defendants in his presence and the suit property was sold on behalf of the defendants by their father to plaintiff No. 1 and father of plaintiff No.2 after taking entire sale consideration that is ₹ 30,000, out of which ₹ 20,000 were paid through two pay orders of ₹ 10,000 each at the time of execution of agreement to sell and GPA. Execution of this receipt is denied by the defendants being sham, forged, fabricated and bogus as the execution of GPA and agreement to sell was denied by them in their written statement, therefore the plea of defendants is not sustainable for the reasons for which plea denying the execution of GPA and agreement to sell was not accepted.
(8.5.3) In para No. 5 of reply on merits in the written statement, it is also stated that no money in the sum of ₹30,000 was paid to the defendants through their father. In the very same breathe, it is also stated that even if this amount has ever been paid, the same cannot be considered as payment of consideration of the suit land for three reasons i.e. firstly, their father entered into any agreement to sell with respect to the suit land without first obtaining the permission from the guardianship judge under the provisions of Hindu Minority and Guardianship Act, secondly their father did not make any application for obtaining permission from the judge for the sale of the land and thirdly, the period of limitation of three years after Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 14 of 30 attaining the age of majority by the defendants has already expired therefore no cause of action arises in favour of the plaintiff. The first two reasons are in respect of the validity of the documents executed for consideration and the third objection is qua the limitation to seek the remedy before the court. Thus none of these reasons are material for determination if the stated amount of Rs 30000/ was paid by the plaintiff No.1 and father of the plaintiff No. 2 to defendants through their father towards the consideration for sale of the suit property.
(8.5.4) It is argued on behalf of the defendants that plaintiff has not produced any evidence to show that in fact the sum of rupees 30,000 was parted by them and the same was received by the defendants or their father. Attention is also drawn to the fact that only the copies of the two demand drafts have been placed on record and neither any relevant witnesses and nor the record is called from the bank to show that this amount had actually been received by the defendants or their father. Considering the evidence on record, this Court is of the opinion that these arguments are meritless for the following reasons:
(a) During cross examination dated 21.08.2019, DW1 Kiran Kumar admitted that Exb PW 1/5 bears the signature of his father.
Exhibit PW 1/5 is the receipt and it recites that the sum of ₹ 10,000 has been received by the executant in advance and further two pay orders have also been received by the executant each for the sum of ₹ 10,000 in respect of the suit property in terms of the agreement to sell. The executant is admittedly none but the father of the defendants. Receipt is nothing but a document to Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 15 of 30 prove the payment. Once the signatures on this documents are admitted, the document is found admitted, therefore the receipt of this sum towards the sale of the land is found admitted and admitted documents need no further proof.
(b) As per section 61 of Indian evidence act, the contents of the documents may be proved either by primary or secondary evidence. It is the case of the plaintiffs that the demand drafts had been handed over to the father of the defendants, therefore they could not be in the possession of the original pay orders. In such circumstances, plaintiffs could prove this document only by leading secondary evidence. Photocopies placed on record are the secondary evidence. PW4 Satprakash has also deposed that the two pay orders were handed over to the father of the defendants at the time of execution of the sale deed. Therefore having seen those pay orders, oral account of those given by PW4 is also one of the secondary evidence. This evidence remained unrebutted and unshattered during the cross examination. Now burden shifts upon the defendants to show that this amount was not received by their father or by them. In crossexamination conducted on 21.08.2019, defendant No.1 appearing in the witness box clearly deposed that he had no account the 1982 and he opened his account in State Bank of Patiala in the year 1987 but he straightaway stated that he cannot bring the statement of his account maintained by him in State Bank of Patiala and he also stated that he does not remember that the plaintiff had paid him the sum of ₹ 10,000 by way of pay order. It is a very strange answer. If he does not remember Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 16 of 30 whether he was paid or not, there exists no reason for him to state in the written statement that this amount was not received by him. Further defendants have also not produced the statement of accounts of their father or themselves to negate the payment of the sum of ₹ 20,000 through two pay orders as deposed by plaintiff No.1 and PW4 Sat Prakash.
Hence it is proved by the preponderance of the probabilities that the plaintiff No.1 and the father of the plaintiff No.2 had made the payment of the sum of ₹ 30,000 for the purchase of the suit property for which power of attorney, agreement to sell, receipt and an affidavit was executed/ affirmed by the father of the defendants.
Whether the possession of the suit property has been with the plaintiffs till the date of filing of the suit?
(8.5.5) It is the disputed question of facts between the parties. Plaintiff have pleaded in para No.6 of the plaint that plaintiffs were in the occupation and possession of the suit property before the date of execution of documents by the father of the defendants, in the capacity of the tenant and the possession was also handed over by the defendants after execution of the documents and their possession has been continuous and uninterrupted in the suit property. The plaintiff No.1 appearing into the witness box also produced the registered lease deed dated 16.06.1981 executed by then owner Sh. Chandgi in favour of Ms Chaman Lal and Hansraj through its partner Sh Hansraj who is the father of the plaintiff No.1, in respect of the suit property for a period from 16.06.1981 up to 15.6.1986 and a further lease deed dated 19 February, 1984 Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 17 of 30 for the further period of five years from 16.6.1986 to 15.6.1991 as Ex.PW1/13. With this, a sanction order dated 05.10.1981 and a further license for manufacture, storage and sale of brick is also attached. Certain photographs of the suit property are also filed. It is contended by Ld counsel for the defendants that these lease deeds were not filed earlier but the same have been produced only during the evidence and in fact, the very fact of running of brick kiln has not mentioned in the pleadings therefore the same cannot be looked into. Defendants are also stated to be in the possession of the suit property and heavy reliance is placed upon the entries in girdawari and it is submitted that these are made as per the site inspection made twice in a year, therefore, the possession is proved as with the defendants only.
(8.5.6) This Court has gone through the record very carefully and it is found that the copies of these lease deeds were already filed on record in September 2012 i.e. much before the date when amendment of the plaint was allowed by Ld Predecessor of this Court. Therefore the contention is wrong that these documents were not filed earlier in time. So far as the fact is concerned that the running of the kiln in the property was not mentioned by the plaintiffs in their plaint, when the plaintiff have already stated that they had been in the possession of the suit property even before the date of execution of the documents, in the capacity of tenant and these deeds were also filed as the documents to be relied upon, the specific averment in this regard is immaterial. Otherwise too, it is only the evidence which the plaintiffs had to lead in order to prove their possession and it is not a fact which was required to be pleaded since it is the Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 18 of 30 settled law that only facts which need to be pleaded but not the evidence or the document vide which a certain fact is proposed to be proved by a party. Corroborating the plaintiff No.1, PW4 Sh. Sat Prakash has also stated that plaintiff No.1 and father of the plaintiff No.2 were in the possession of the suit property as entire land of the last owner was already with the forefathers of the plaintiffs on lease and they were doing their work on the entire land as they were running their brick's business. This witness stated during cross examination that he even know Sh Chandgi Ram from whom the father of the plaintiff No.1 1 and grandfather of plaintiff No.2 took the suit property on lease. No question was put to him as to suggest that no brick kiln was existing there or no business of bricks was running from there and no evidence is adduced to disprove this fact. Besides this, PW3 Rajesh Kumar has also filed the affidavit stating that his father Mange Ram was taking care of the land of the plaintiffs from 1990 to 1996 and he used to help him during this period in cultivating the land by getting half share of the crops and that the plaintiffs were cultivating land themselves thereafter and since 2012, he is taking care of and cultivating the plaintiff's land including the suit land and getting half share of the crops and the plaintiffs used to visit the land regularly. Consistent to his deposition, he stated during crossexamination that he is cultivating the suit property for the last 5 to 6 years and he is farming wheat at the suit property and he takes half of the crop against the remuneration and his agricultural land is adjacent to the suit property. So this witness remains firm to the fact that he is cultivating the land under the plaintiffs and his testimony along Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 19 of 30 with the testimony of the plaintiff and PW4 Satprakash proves that the plaintiffs have been in continuous possession of the suit property since 1981 as tenant and upon the execution of the documents, they continued to retain its possession. On the other hand, though the defendants claimed the possession of the suit property and relied upon Form P4 i.e. Khasra Girdawari for the year 20032004 and 20162017 where the names of defendants are recorded against the khasra no of suit property, when questions were put during crossexamination, defendant No.1 appearing as DW1 has been unable to tell the Khasra No. of the land which is subject matter of the suit, he also could not answer whose land is situated in north, south, east or west side of the suit property. It is also very strange that though defendants are stating that they have been cultivating the land, no arrangement has been made for tubewell. In fact, DW1 defendant No1 was also unable to state whether there is any government tubewell in the surrounding of the land in question. If they had been cultivating the land, there must be a dire need of a water and if they do not have their own arrangement i.e. tube well in the land to water the plants, it ought to have been arranged from nearby tube wells and their unawareness implies that they are not cultivating the land. He had no document of purchase for seeds for growing of crops in the suit property. He had no record of purchase of fertiliser for using in the land. He also did not remember what was cultivated in the land recently. It proves that the entries in the revenue records have been made mechanically and these are contrary to the actual facts on site. Therefore, it is held that the suit property has been in the possession Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 20 of 30 of the plaintiffs and they also retained the possession of the suit property after the execution of the GPA and agreement to sell for consideration by the father of the defendants on the behalf defendants.
Whether the agreement to sell executed by the father of defendant No. 1 and 2 is enforceable against them?
(8.5.7) This question goes to the root and real controversy/dispute between the parties. Answers to the above questions only prove that the father of the defendants on behalf of the defendants executed the agreement to sell, GPA in favour of the plaintiff No. 1 and father of the plaintiff No.2 in consideration of the sum of ₹ 30,000 paid by the plaintiff No.1 and father of the plaintiff No.2, since the defendants were minor at the time. Further it is also proved that the possession of the suit property had been with the plaintiffs as tenants as on the date of execution of documents and after the execution of same, the plaintiff No1 and father of plaintiff no. 2 retained the possession of the suit property in pursuance of agreement to sell and GPA executed for consideration, thus as part performance of agreement to sell. Section 202 of the Contract Act, 1872 provides that the Power of Attorney coupled with interest is irrevocable and the same cannot be revoked/terminated even upon the death of the principal, so the GPA executed for consideration and its subject matter i.e. the suit property being one in which the plaintiffs had an interest, is an irrevocable one. Further since agreement to sell was also executed and in part performance of this agreement, the possession was being retained by the plaintiffs, the Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 21 of 30 plaintiffs have right to enforce this agreement to sell and protect and retain possession of the suit property. The rights of the person having the possession of the immovable property as a part performance of the agreement to sell have clearly been stated in section 53A of The Transfer of Property Act (as existing in statue book before 2492001 when the words underlined were omitted by Act 48 of 2001) which reads as under:
53A. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
Thus, the defendants are debarred from enforcing any right in the suit property against the plaintiffs, other than a right expressly provided Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 22 of 30 under the contract but as per the defendants, this agreement cannot be enforced since it is not registered though required to be mandatorily registered under section 17 of Registration Act,1908 and the father of the defendants was not competent to bind the defendants with any agreement including the agreement to sell in question without seeking permission from the court as per section 8 of Hindu minority and guardianship act, 1956.
(8.5.8) Section 17(1A) of the Registration act, 1908 makes the registration of contracts to transfer immovable property for consideration, for the purpose of section 53A of Transfer of property Act, 1882 mandatory if these have been executed on or after the commencement of the Registration and Other Related laws (amendment Act 2001). Thus, this provision has no applicability in the present case where the agreement to sell was executed much prior to year 2001 and the first contention of the defendants fails.
(8.5.9) Roomal & Ors. vs. Shri Niwas AIR 1985 Delhi 153.and Sh. Manik Chand & Anr. vs. Sh. Ramchandra, son of Chawiraj relied upon by Ld Counsel of the plaintiff emphasize upon the very law applicable in case the property of minor is dealt by his guardian and as per these judgments, the guardian can sell or purchase the immovable property on behalf of the minors as per the provisions of Section 8 of The Hindu Minority and Guardianship Act, 1956. But the core question here is if the defendants can deny to be bound by the agreement executed by their father on their behalf after more than 20 years of the execution and after about 18 years from the date of the Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 23 of 30 attaining age of majority by them and repudiate the agreement executed by their father on their behalf. Vishwambhar & Ors. vs Laxminarayan (Dead) through L.R.s & Ors AIR2001SC2607 and Ajay Vir Singh vs. Jhoney Singh & Ors. 2017IAD (Delhi)210 relied upon by Ld Counsel assist to answer this. In Vishwambhar & Ors. vs Laxminarayan (Dead) through L.R.s & Ors, Hon'ble Apex Court observed that the alienation made by guardian in contravention to the section 8(2) of Hindu minority and guardianship act, 1956 are voidable at the instance of the minor or any person claiming under him and they were required to get the alienations set aside if they wanted to avoid the transfers and wanted to regain the properties from the purchasers and this ought to be got within the period of three years by the Ward who has attained majority, from the date when the ward attains majority. In Ajay Vir Singh vs Jhoney Singh, Hon'ble High Court of Delhi has allowed the appeal and appellant's suit for specific performance is decreed observing that sale consideration is already received and physical possession has already changed hands, therefore what is material is disposal of immovable property and when minor upon attaining majority has not come forward to challenge the disposal of immovable property, the trial court was not justified in dismissing the suit for specific performance by relying upon section 8 of Hindu minority and guardianship act, 1956. Thus in view of these judgments, it is held that the defendants can not avoid the performance of agreement to sell entered into by their father on their behalf since they have not exercised the option available to them to get the agreement avoided by seeking appropriate relief of annulment / cancellation of this agreement to sell from the Court of law.Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 24 of 30
(8.5.10) It is consistently contended on behalf of defendants that they had no knowledge about the agreement to sell, the specific performance of which is being sought, prior to the receipt of summons of this case, so no question arises to defendants to get the same declared voidable. Having gone through the record, this Court finds no merits in this contention for three reasons:
Firstly, DW1 Ravinder Kumar admitted in cross examination that address written on legal notice dated 02.09.2009 Exb PW1/11, bears the address, where he alongwith his two brother namely Devender Solanki and Joginder Solanki are residing and registered AD received back is signed by his brother Joginder Solanki. It proves that legal notice dated 02.09.2009 was served upon him and the knowledge of the agreement to sell can be safely inferred from the date of receipt of legal notice in September. 2009, if not earlier.
Secondly, with the admission of receipt of legal notice by DW1 Ravinder Kumar during crossexamination and the fact that he had been denying the receipt of the same since beginning when case is already about 10 years old, and the findings given by this Court that the defendants have been falsely asserting themselves into the possession, the defendant No.1 is also proved as untrustworthy and in view of his conduct, the court is hesitant to accept that he had no knowledge of the agreement to sell or the plaintiffs had not been requesting him for execution of saledeed to which he was deferring for one or the other reason.
Thirdly, the defendants omitted to file any counterclaim as well, if their version is accepted, Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 25 of 30 (8.5.11) A voidable agreement is defined u/s 2(i) of Contract Act, 1972 as an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of other or others. However, the contract continues to be good and enforceable unless it is repudiated by the aggrieved party. The period for limitation for repudiating it, is three years after the attaining the age of maturity. If it is not repudiated within this period, the contract for sale will hold good. Hence, since the defendants have failed to repudiate this agreement within the time granted under law, the agreement to sell sought to be enforced holds good and the defendants cannot refuse to perform the same.
In view of above, it is held that the agreement to sell executed by the father of defendant No. 1 and 2 is enforceable against them.
If yes, whether the plaintiffs can ask for the execution of sale deed in their favour as on the date of the filing of the suit? (8.5.12) It is forcefully contended on behalf of the defendants that the defendant No1 and defendant no 2 had attained the majority in 1987 and 1992 respectively and no reasonable person would be kept waiting for long years for specific performance of the agreement, even if it is believed that the defendants were only rendering false assurance to get the sale deed executed especially when defendants have attained the majority and there was nothing more to be done by them, therefore the refusal on the part of the defendants ought to be inferred and the suit of the plaintiff stands barred by period of limitation. On the other hand, Ld. Counsel for the plaintiffs relies upon the article 54 of the Limitation Act 1963 and submits that the period of limitation Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 26 of 30 commences from the date of refusal and date of refusal is deemed when legal notice sent by the plaintiffs has not been replied by the defendants and further since the time was not essence of the agreement, the refusal could neither be inferred nor the fact that a long period of time has passed, will create a bar in granting the decree of specific performance of the agreement.
(8.5.13) This court has given thoughtful consideration to the contentions made. It is not disputed by Ld. Counsel for defendants that time was not essence as per the agreement sought to be specifically performed. The three Judgments relied upon by Ld. Counsel for defendants i.e. Irmeet Singh Kohli vs. Ashok Kumar Batra, Parmanand Kansotia vs. Seetha Lath and Ravinder vs. Birender Singh also do not apply to the facts and circumstances of the case. In Irmeet Singh Kohli vs. Ashok Kumar Batra, specific performance was sought qua the oral agreement which is not the case in hand since in the present case, there is a written agreement to sell between the parties. In Parmanand Kansotia vs. Seetha Lath, the purchaser had failed to prove the actual delivery of the physical possession of the suit property whereas in the present case, it is proved that plaintiffs had been in the possession of the suit property even on the date of agreement to sell and thereafter they continued to remain in the possession of the suit property. Further, in Ravinder vs. Bijender Singh, possession of the suit land was not delivered at all to the purchaser and it had to be delivered at the time of the registration of the sale deed which is again not a case in hand. In the present case, it has been proved that the possession of the suit property is with the Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 27 of 30 plaintiffs. They have already paid the consideration money to the father of the defendants since they were minors at that time. Defendants are also proved to be pleading constantly that the suit property is in their possession and the legal notice sent by the plaintiffs was not received by them but from the crossexamination of defendant No.1 who appeared as DW1, both the averments are found false. They had also not replied the legal notice at any point of time. Thus, from their conduct, it can be safely gained that they never refused the plaintiffs for execution of the sale deed in their favour in performance on their part of agreement to sell during this long period in clear terms and it probabilizes that defendants kept on avoiding the execution of sale deed on one or the other or other ground. Hence, refusal on the part of the defendants to execute the sale deed is accepted as from the date when they neither answered the legal notice nor executed the sale deed despite receipt of the legal notice in the year 2009 and consequently the suit of the plaintiffs is held not barred by the period of limitation and it is answered in affirmative that plaintiff can ask for execution of sale deed in their favour as on the date of filing of the suit.
Hence, in view of the above, it is held that the suit of the plaintiffs is not liable to be dismissed for want of cause of action and the plaintiffs are entitled by the decree of specific performance of contract as prayed for and accordingly issue No.4 is decided against the defendants and issue No.1 is decided in favour of the plaintiffs.Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 28 of 30
ISSUE NO.2 Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP
9.1 The onus to prove this issue lies upon the plaintiffs.
9.2 While deciding the issues No.1 & 4, it is held proved that plaintiffs are in the possession of the suit property and further as per Section 53 A of the Specific Relief Act, they are also entitled to protect their possession in the suit property. Hence, consequently, plaintiffs are held entitled for the permanent injunction as prayed for.
Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.3 Whether the plaintiff is entitled to the decree of recovery of Rs.30,000/ alongwith interest @ 24 % per annum as prayed for? OPP
10. The onus to prove this issue lies upon the plaintiffs but the plaintiffs have craved for the recovery of the sum as an alternate relief. Since, this court has already held that plaintiffs are entitled for decree of specific performance, they are held not entitled for recovery of sum of Rs.30,000/ as an alternate relief and this issue is decided against the plaintiffs.
Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 29 of 30RELIEF In view of the findings given on the issues framed in the present suit, the suit of the plaintiffs is decreed that :
1. A specific performance of agreement to sell dt. 22.07.1987 is granted in favour of plaintiff and it is directed to the defendants to perform the agreement to sell dt. 22.07.1987 and execute the sale deed in respect of the land admeasuring 7 bighas 3 biswas situated in khasra No.38/23(412), 24(27) and 30(04) situated in the revenue state of village Nizampur, Delhi in favour of the plaintiffs.
2. A permanent injunction is also passed in favour of the plaintiffs and against the defendants thereby restraining the defendants from interfering into peaceful use, occupation and enjoyment of the aforesaid land.
Cost of the suit is also granted to the plaintiffs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open court on (Aanchal)
th
07 day of March, 2020 JSCC/ASCJ/Gudn. Judge
At 4.30 p.m. North, Rohini Courts, Delhi/07.03.2020 (R)
Suit No. 537796 2016 Kiran Kumar vs. Ravinder Kumar Page 30 of 30