Delhi District Court
Civil Suit No.:206/2067 Smt. Sona Devi vs . Sh. Ramniwas Dagar Dod : 10.06.2020 on 10 June, 2020
Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 206/2016 (517174/ 2016)
In the matter of:
Smt. Sona Devi
W/o Sh. Roshan Lal,
R/o RZ26, Gali No. 8,
Ajay Park, Naya Bazar,
Najafgarh, New Delhi110043. ....Plaintiff
Versus
Sh. Ramniwas Dagar,
R/O RZ14,
Ajay Park, Naya Bazar,
Najafgarh, New Delhi110043. ....Defendant
Date of Institution of Suit : 20.01.2010
Date of reserving judgment : 10.06.2020
Date of pronouncement : 10.06.2020
Appearance:
(i) Sh. Narender Singh, Advocate, Learned Counsel for the
plaintiff (Telephonically)
(ii) Sh. Paramveer Singh, Advocate, Learned Counsel for the
defendant (Through video conferencing)
SUIT FOR PERMANENT & MANDATORY INJUNCTIONS AND FOR
DECLARATION & CANCELLATION
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Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendant seeking declaration, possession and permanent injunction.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :
i) It is averred that plaintiff is an illiterate lady and residing at the abovesaid address alongwith her family. The defendant was known to the husband of the plaintiff and residing in the neighbourhood of the plaintiff.
ii) The plaintiff is the absolute owner in possession of a builtup house where she has been residing alongwith her family since 22.01.2007, i.e. bearing house no. RZ26, Gali No. 8, Ajay Park, Naya Bazar, area measuring 83 sq. yards, out of Khasra No. 4/15, situated in the revenue estate of Village Najafgarh, Delhi (hereinafter referred to as the "suit property")
iii) That the plaintiff purchased the suit property from Sh. Soraj S/o Sh. Tek Chand, against a consideration amount of Rs. 2,90,000/ on 02.01.2007 in terms of the sale documents i.e. General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter & Will. Sh. Soraj had purchased the suit property from Sh. Krishan Kumar S/o Sh. Tek Chand, who himself had purchased the suit property from Sh. Naresh Kumar, S/o Sh. Umed Singh, House No. 714, Gaushala Road, Najafgarh, Delhi110043.
iii) That when the plaintiff purchased the suit property, a BSES Rajdhani Power Limited, electricity connection was already installed Page No. 2 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 therein in the name of the previous owner. The plaintiff made an application to BSES officials and got transferred the said connection, CRN No. 2620089711, in her name, and after that she paid the electricity bills regularly. The husband of the plaintiff is also running a proprietorship firm from the suit property in the name and style of "Harbal Above All".
iv) That defendant had cordial relation with the husband of plaintiff, Sh. Roshan Lal, who also used to invest in the property jointly with defendant. The defendant informed the husband of plaintiff that he wanted to invest some money in a property deal, so he requested to provide him financial assistance and for this purpose he took three cheques of Rs. 3,50,000/ from husband of plaintiff with an undertaking that he would encash these cheques, if need arises. But, the defendant neither encashed those cheques nor returned the same to husband of plaintiff and on account of friendly terms Sh. Roshan Lal, did not insist for the return of the abovesaid cheques from defendant.
v) The family of the plaintiff was in need of money, so plaintiff decided to dispose off the suit property. The defendant approached plaintiff and her husband and said that he knew a person, who wants to purchase the suit property but defendant demanded 2% of the sale consideration as commission from plaintiff. The plaintiff and her husband accepted the offer of defendant as they had full faith in him. Thereafter, the defendant informed that the purchaser could offer upto Rs. 27,00,000/ as the sale consideration and plaintiff and her husband agreed to the said proposal.
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vi) That on 1st August 2009, when the husband of the plaintiff Sh. Roshan Lal was not at home, the defendant came at the suit property with his son and two other persons and the defendant introduced a person out of them as a prospective purchaser of the suit property. They finalized the amount of Rs. 27,00,000/ as the total sale consideration of suit property and the prospective purchaser handed over a cheque of Rs. 3,00,000/ to plaintiff as earnest money/Bayana through defendant. At that time defendant got some thumb impressions and signatures of the plaintiff on some stamp papers and a register. Further defendant took the total original title documents of the suit property from the plaintiff. The plaintiff did all these things as she and her family had full faith upon the defendant.
vii) That after sometime on the same day, when husband of the plaintiff, Sh. Roshan Lal returned home, Plaintiff told all things to him and Sh. Roshan Lal went for encashment of cheque of Rs. 3,00,000/, however, officials asked him for an another signature of the drawer at the back portion of the cheque, as that cheque was the self paid cheque.
viii) That Sh. Roshan Lal met defendant at his home and requested him for one another signature of the drawer on the back portion of the cheque, i.e. the prospective purchaser of the suit property. Thereafter, defendant took the said cheque from Sh. Roshan Lal and submitted that he would either deliver the same to him on next day after getting another signature of the purchaser or get the total Bayana amount of Rs. 3,00,000/ in cash from the purchaser. But the defendant neither returned the abovesaid cheque nor paid any amount in cash, otherwise, the defendant neither returned the title documents of the suit property, which he had taken from plaintiff on Page No. 4 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 01.08.2009 nor he returned the papers on which he had taken signature of the plaintiff, despite repeated request made by plaintiff.
ix) The defendant, on 06.09.2009 alongwith some persons came to the suit property and demanded the vacant possession of the same. When the plaintiff and her husband objected to, the defendant threatened them with dire consequence and defendant and his companions left the spot while extending threat that they would come again with more force and would take the possession forcibly. The plaintiff made a written police complaint to P.S. Najafgarh, Delhi.
x) That the defendant did not stop his illegal acts and thereafter, on 19.09.2009, the defendant with the help of his son and two muscle men again tried to take possession of the suit property from plaintiff by force in the absence of the husband of plaintiff. The plaintiff made a call to PCR by dialing 100 number and on intervention of the police, the defendant, his son and musclemen left the suit property. But, even in the presence of the police officials, they extended threat to plaintiff and her family. Thereafter, on 22.09.2009, the plaintiff's husband made a police complaint to SHO P.S. Najafgarh and DCP, SouthWest District.
xi) That plaintiff and her family members were very upset and terrified with the illegal threat, act and conduct of defendant and his musclemen. The plaintiff had no remedy except to file a suit for Declaration, Permanent & Mandatory Injunction, in the court of Ms. Anu Grover Baliga, Sr. Civil Judge, Dwarka, Delhi, on 30.09.2009 but even after filing of the abovesaid suit, the defendant on 04.10.2009 came to the suit property alongwith his son Rajiv, his tenant Pawan and other musclemen and they assaulted the son of plaintiff namely Page No. 5 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 Jitender and snatched his mobile phone set and directed him to get the door of the suit property opened as his wife namely Smt. Poonam, was inside the suit property. When his wife did not open the door of the suit property, they trespassed the suit property from the roof of one adjoining school building and assaulted the daughterinlaw of plaintiff. When the police was called but by that time, they escaped from there taking belongings of plaintiff and an FIR No. 359/09, P.S. Najafgarh, was registered against defendant, his son and his tenant Pawan under sections 354/506/451/323/34 IPC.
xii) That on 07.10.2009, defendant appeared in the court of Ms. Anu Grover Baliga, Sr. Civil Judge, Dwarka, Delhi and moved one application under order 7 rule 11 for seeking the rejection of the plaint. The plaintiff was shocked to know that defendant malafidely and unlawfully forged the title documents allegedly executed in his favour against the alleged consideration of Rs. 27,00,000/ on the basis of papers which had already been received by him from Plaintiff on 01.08.2009. In addition to it, a receipt of Rs. 27,00,000/, possession letter, rent agreement were also forged and fabricated by defendant, whereas not even a single penny was received by plaintiff and possession of the suit property continuously remained with plaintiff.
xiii) That on account of the alleged sale transaction of the suit property of Rs. 27,00,000/ on the basis of forged documents, the pecuniary jurisdiction of the trial court stood excluded, so the plaintiff withdrew that suit on 12.12.2009 as the plaintiff was seeking the relief of declaration hence, the present suit.
3. After filing of the suit, summons for settlement were issued to the defendant and defendant filed written statement and Page No. 6 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 interalia submitted that the suit property has been sold by plaintiff to defendant and thereafter, plaintiff and her family is residing on first floor of suit property as agreed and defendant is in possession of ground floor of the suit property. However, it is matter of record that defendant was residing in the neighbourhood of plaintiff at property no. RZ14.
4. It is submitted that possession of the suit property was handed over by plaintiff to defendant and it was agreed between the parties that plaintiff with her family will continue to stay on the first floor of the suit property till they make other arrangement therefore plaintiff is in possession of the first floor for that reason and even a rent agreement was also signed between plaintiff and defendant. The defendant purchased the suit property from plaintiff on 31.07.2009 and the said electricity connection has been transferred in the name of defendant.
5. It is submitted that neither plaintiff nor her husband was in position to provide any financial assistance to defendant and the story made by plaintiff is totally false and incorrect. The defendant approached the plaintiff for purchase of said property and plaintiff in the presence of her husband agreed to sell the suit property for Rs. 27,00,000/. The defendant never introduced any person as a prospective purchaser of the suit property nor they finalized an amount of Rs. 27,00,000/ as total sale consideration of the suit property. Neither any amount was allegedly handed over by prospective purchaser nor a cheque of Rs. 3 Lakhs was handed over to plaintiff as earnest money/bayana through defendant. The defendant never took got any thumb impressions and signatures of the plaintiff on some stamp papers. The defendant never took the Page No. 7 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 original sale documents of the suit property from the plaintiff on 01.08.2009 as alleged, otherwise, sale documents were handed over to defendant by plaintiff on 31.07.2007.
6. It is submitted that it is admission of plaintiff that plaintiff and her husband agreed to sell the said property for Rs. 27,00,000/ and defendant purchased the suit property for Rs. 27,00,000/. The suit property is situated in unauthorized colony and transaction of such property are on the basis of Agreement to Sell, GPA, etc. and therefore as per practice prevailing in respect of transfer of the immovable property in unauthorized colony, papers were purchased for execution of various documents such as Agreement to Sell, GPA, Affidavit, Receipt, Possession Letter, Will etc. The said documents were got typed and, thereafter, plaintiff, who is familiar and aware of such documents executed the said documents on 31.07.2009 putting her thumb impression on the said documents in the presence of witnesses including the husband of plaintiff. The paper signed by plaintiff were not blank and even the photographs of the plaintiff are appended thereon and the said sale documents were duly notarized on 31.07.2009. Even plaintiff has signed in the notarial register of Notary Public and even her photographs are affixed in thesaid notarial register.
7. It is further submitted that as per practice prevailing in respect of the sale of the property, the sale documents of the suit property were also handed over by plaintiff to defendant as defendant has purchased the suit property and paid consideration amount of Rs. 27,00,000/ as agreed. When the suit property was sold by plaintiff to defendant, it was requested by the plaintiff that her family be permitted to continue to reside in the suit property till they make alternative Page No. 8 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 arrangements and as plaintiff and her family was known to defendant, defendant agreed for the same in terms of the rent agreement, which was also signed by plaintiff and defendant in respect of first floor of the suit property. The possession of the suit property was handed over by plaintiff to defendant and defendant has occupied the ground floor of the suit property, however, plaintiff and her family are residing on the first floor of the suit property.
8. It is submitted that plaintiff in the presence of her husband agreed to sell the suit property to defendant for Rs. 27,00,000/ and sale documents were executed and signed by plaintiffs and amount was paid by the defendant on 31.07.2009, in the presence of her husband.
9. It is submitted that consideration amount was already paid to the plaintiff and documents were signed by the plaintiff on 31.07.2009 therefore there was no question of approaching the defendant by husband of plaintiff or the plaintiff in respect of alleged amount of cheque of Rs. 3 Lakhs. There was no occasion for defendant to return title documents of the suit property. It is a known fact that all original title documents are handed over by the seller at the time of execution of final sale documents and after sale consideration amount is received. The plaintiff received the consideration amount and she executed the documents in favour of the defendant on 31.07.2009. The original documents in respect of suit property were also handed over to the defendant and there is no question of returning back the said documents by defendant to plaintiff.
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10. The family of plaintiff continued to reside on first floor as agreed between plaintiff and defendant and the ground floor is in possession and occupation of the defendant. However, it seems that with malafide intentions and ulterior motives plaintiff and her family started making false complaints and even they started threatening defendant that defendant and his family will be implicated in the false cases.
11. The defendant never tried to take possession of suit property from plaintiff by force as alleged. However, plaintiff and his family have turned dishonest as they were permitted to occupy the first floor of the suit property but they started blackmailing the defendant. It is submitted that all said acts of plaintiff are with intention to blackmail and harass defendant with ulterior motives. The defendant has purchased the suit property for consideration and as defendant is in occupation of the ground floor of the suit property therefore, defendant and his family members have every right to use and visit the suit property.
12. It is plaintiff and his family who even started quarreling with defendant and his family and even they made attempts so as to prevent the defendant and his family members from entering the suit property. The is a common entry to the part of ground floor and first floor and plaintiff and his family members with malafide intentions even started to close the door. The defendant has every right to use suit property in the manner he likes and he has every right to get the door opened if same is closed. The plaintiff and his family are making false complaints to the police, and they are calling the police so that under threat of the police, defendant did not visit the suit property.
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13. The plaintiff has filed replication reasserting and reaffirming the averments made in the plaint.
14. The defendant has filed the counterclaim and counter claimant and non counterclaimant i.e defendant and plaintiff are referred to as the defendant and plaintiff only as per their litigative status in the main suit. The defendant apart from the contents of the written statement and interalia, has submitted in the counterclaim that plaintiff is owner of the suit property and she agreed to dispose off the suit property for an amount of Rs. 27 lakhs and as per the prevailing contracts in the authorized colonies for execution of the necessary sale documents namely GPA, agreement to sell etc was executed by the plaintiff in favour of defendant on 31.07.2009 which were duly notarised in the presence of attesting witnesses. The sale documents bear the thumb impression of the plaintiff on the said documents as well as photographs appended thereon including in the notarial register.
15. It is further submitted that plaintiff and her family turned dishonest and started making complaints against defendant and ultimately filed the suit no. 251/09 which was withdrawn, later on, on 12.12.2009. The plaintiff turned dishonest so much so that the plaintiff abused the defendant on 05.01.2010 when defendant visited the suit property and again on 10.01.2010 the plaintiff tried to bolt the main gate and issued threat to the defendant to dispossess from the suit property.
16. The plaintiff has filed the suit for declaration and injunction by concealing the material facts. The plaintiff was under obligation to perform her part of contract in terms of contract dated 31.07.2009 and Page No. 11 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 to execute the sale deed in favour of defendant so as to complete the sale transaction. The defendant is in possession of the ground floor of the suit property, therefore, the plaintiff cannot interfere with the possession of defendant on the ground floor of the suit property and, therefore, the defendant is also entitled to decree of specific performance in terms of agreement to sell dated 31.07.2007. Hence, the counter claim has been preferred.
17. The plaintiff filed reply controverting each and every allegation in the counterclaim and reiterated the contents of plaint which are not reproduced here for sake of brevity.
18. Thereafter, defendant filed replication to the written statement filed by plaintiff to the counterclaim of defendant and reiterated the contents of counterclaim and denied the contents of the reply filed by plaintiff to the counterclaim.
19. From the pleadings of the parties, following issues were framed on 08.11.2012 : ISSUES
1. Whether the plaintiff is entitled to a decree of permanent injunction as per prayer clause (i) of the plaint? (OPP)
2. Whether the plaintiff is entitled to a decree of mandatory injunction as per prayer clause (ii) of the plaint? (OPP)
3. Whether the plaintiff is entitled to a decree of declaration and cancellation of the title documents in respect of the suit premises executed in favour of the defendant? (OPP)
4. Whether the suit of the plaintiff is liable to be rejected for want of cause of action under Order VII Rule 11 CPC? (OPD) Page No. 12 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020
5. Whether a Rent Agreement dated 29.07.2009 in respect of the first floor of the suit premises was executed by the defendant in favour of the plaintiff as alleged? (OPD)
6. Whether the defendant/counter claimant is entitled to a decree of possession of the first floor of the suit premises against the plaintiff, upon determination of the aforesaid Rent Agreement dated 29.07.2009 by efflux of time? (OPD)
7. Whether the defendant/counter claimant is entitled to the relief of specific performance in respect the Agreement to Sell dated 31.07.2009 alongwith the other set of documents allegedly executed for the sale of the suit premises? (OPD)
8. Whether the defendant/counter claimant is entitled to a decree of permanent injunction against the plaintiff in respect of the suit premises as per prayer clause (c) of the counter claim? (OPD)
9. Whether the defendant/counter claimant is entitled to a decree of permanent injunction against the plaintiff in respect of the ground floor of the suit premises as per prayer clause (d) of the counter claim? (OPD)
10. Relief.
20. The parties to the suit were thereafter called upon to substantiate their respective cases by leading evidence.
21. The plaintiff to do so, appeared as PW1 in the witness box. He filed his examinationinchief by way of affidavit Ex. PW1/X. He has also proved on record the following documents:
i) Copy of the site plant is Ex. PW1/1,
ii) Photocopy of the GPA of attorney is Mark A,
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Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020
iii) Photocopy of the agreement o sell is Mark B,
iv) Photocopy of the affidavit is Mark C.
v) Photocopy of receipt is Mark D.
vi) Photocopy of the possession letter is Mark E,
vii) Photocopy of Will is Mark F,
viii) Electricity bill in the name of plaintiff is ex. PW1/2,
ix) The complaint dated 22.09.2009 is Ex. PW1/3,
x) Complaint dated 22.09.2009 is Ex. PW1/4,
xi) Complaint dated 06.10.2009 is Ex. PW1/5,
xii) FIR No. 359/2009 is Ex. PW1/6,
xiii) Copy of earlier suit is Ex. PW1/7,
22. In support of the case, the plaintiff has examined her daughter namely Smt. Poonam as PW2, who has deposed on the lines of the plaintiff.
23. In support of her case, the plaintiff has examined one Sh.
Lajhu Singh Yadav as as PW3, who has deposed on the lines of the plaintiff.
24. In support of her case, the plaintiff has examined her daughter namely Smt. Poonam as PW4, who has deposed on the lines of the plaintiff.
25. In support of his case, the plaintiff has examined Ct. Mahender Singh who has proved on record the order dated 02.04.2018 as Ex. PW5/A.
26. Thereafter, the plaintiff evidence was closed and matter was listed for defendants evidence. Defendant to do so, appeared as Page No. 14 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 DW1 in the witness box. He filed his examinationinchief by way of affidavit Ex. DW1. He has also proved on record the following documents:
1. Certified copy of the judgment dated 05.04.2016 is Ex.
DW1/1,
2. 10 Photographs of the suit property are exhibited as Ex.
DW1/2,
3. Photocopy of the Electricity Bill for the month of June 2012, is Mark A,
4. Copies of the documents i.e. GPA, Agreement to Sell and previous chain of the suit property is collectively exhibited as Ex. DW1/4,
27. Defendant had filed another affidavit Ex. DW1/A in support of his counter claim. He was examined and crossexamined.
28. In support of his case, the defendant has examined Sh.
R.C. Joshi, Notary Public as DW2, who has proved on record original notarial register with respect to sale purchase of House/Plot No. 26, area 83 Sq. Yards, Khasra No. 5/15, Ajay Park, Naya Bazar, Najafgarh, New Delhi110043, is Ex. DW2/1. He has also proved on record the original notarial register with respect to sale purchase of House/Plot No. 26, Area 83 Sq. Yards, Khasra No. 5/15, Ajay Park, Naya Bazar, Najafgarh, New Delhi110043 as Ex. DW2/2.
29. In support of his case, the defendant has examined Sh. Jasbir Singh as DW3, who was the witness in respect of the sale documents.
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30. I have heard Ld counsels for the parties and have carefully gone through the record.
31. My issue wise findings in the matter are as under :
Issue Nos. 1,2 & 332. Issue nos. (1) (2) & (3) are overlapping each other are disposed off by this common order. Plaintiff appeared as PW1 and deposed through her evidence affidavit and relied upon documents Ex. PW1/1 to Ex. PW1/7. However, those documents were de exhibited and marked only. The plaintiff as PW1 has reiterated the contents of the plaint which are not reproduced, however, in cross examination PW1 testified that on 01.08.2009, defendant along with 23 persons had visited her house as defendant was negotiating with her husband for purchase of suit property and therefore, defendant asked her to show the original sale documents and on the production of same by PW1, defendant had taken the sale documents along with him apart from the balance signed documents. PW1 has categorically deposed that defendant has not given any amount to her nor defendant had any talk with PW1 regarding the same. PW1 intended to dispose off the suit property and negotiations were going on between the husband of plaintiff and defendant and a deal was agreed for an amount of Rs. 27 lakhs at her residence in the presence of her daughter in law Poonam (since deceased) her son Jitender, Ram Niwas along with 23 other persons in the presence of her husband. PW1 denied having executed any sale document in favour of the plaintiff including rent deed as alleged. PW1 admitted that the electricity bill Ex. PW1/3 installed in the name of defendant at the ground floor of the suit property was installed on 28.02.2007 wherein the name of the father of the defendant is shown as Roshan Page No. 16 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 Lal, however, Roshan Lal is husband of PW1. Furthermore, the alleged sale documents of suit property are of 31.07.2009 which clearly depicts that the defendant in collusion with BSES officers got executed on installed the electricity connection about two years prior to execution of the sale documents allegedly in favour of the defendant by PW1.
33. PW2 Rajesh Kumari has deposed on the lines of PW1 and in her crossexamination, she testified that on 04.10.2009, PW2 has gone to take medicines and she had seen a crowd gathered outside the house of plaintiff but she did not know the names of persons gathered outside, however, she heard the noise of the plaintiff. However, PW2 admitted that name of the defendant as mentioned in her affidavit has come to her knowledge subsequently and on the day of incident, she was not knowing the name of the defendant. PW2 admitted the lodging of FIR No. 60/2020 PS Chhawla U/s 420 against her husband and son and husband of the plaintiff. PW2 admitted in crossexamination that she had seen the defendant along with 1012 persons were entering in the suit property from back side.
34. PW3 has deposed on the line of PW1 and admitted that he had filed a suit against the defendant which was dismissed. PW3 came to know that defendant had forcibly occupied the suit property in the year 2010 from husband of the plaintiff. PW3 admitted that defendant in the year 2012 had also tried to trespass and forcible occupy his plot in village Ujwa and PW3 came to know about the fraud committed by defendant on different persons, therefore, PW3 is sure that defendant must have committed fraud with the plaintiff.
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35. PW4 Roshan Lal is the husband of the plaintiff and he deposed on the line of plaintiff and testified that in November 2008, he along with plaintiff had approached the defendant to dispose off the suit property and a sale consideration was fixed at Rs. 27 lakhs, however, he did not know the name and address of the prospective buyer of the suit property. PW4 testified that the cheque of Rs. 3 lakhs could not be encahsed due to nonavailability of the signature of drawer on the back of the cheque and the said cheque was returned to the defendant for another signature of the drawee/prospective buyer however, the defendant neither returned the cheque nor returned the amount, meaning thereby that no sale consideration has been paid by the defendant to the plaintiff. PW4 in her cross examination had clarified the alleged contradiction in her affidavit in as much as PW4 testified that the cheque of Rs. 3 lakhs allegedly given by the proposed buyer had not been given in his presence to the plaintiff.
36. To rebut the case of plaintiff defendant appeared as DW1 and reiterated the contents of his written statement and submitted that the sale documents were executed by the plaintiff on receipt of the amount of Rs. 27 lakhs and those sale documents were notarised on 31.07.2009. In crossexamination DW1 admitted that he was having friendly relations with the husband of plaintiff since 2002 and husband of plaintiff had come to dispose off the suit property two days prior to the sale of the suit property However, DW1 did not remember whether any agreement to sell was executed or not. DW1 had testified that he had arranged the amount of sale consideration after selling his plot but he has no document to show that he has sold the plot. However, in his crossexamination on 07.01.2020, DW1 testified that he has arranged the sale consideration of Rs. 27 lakhs by Page No. 18 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 disposing off two buffaloes as well as the amount received by him as income from agriculture land in village Issapur admeasuring about three acres. The sale documents were prepared in the Office of Sub Registrar in the gali situated near Shani Mandir.
37. Ld. Counsel for the plaintiff has submitted that plaintiff is the owner and possession of the suit property and all the original documents of the property are in possession of the defendant since 01.08.2009. The plaintiff has got transferred the water and electricity connection in the suit property in her name which was earlier in the name of previous owner. The plaintiff intended to dispose off the suit property and defendant approached plaintiff and her husband that he is having a prospective buyer of the suit property subject to payment of 2% commission on the sale consideration, however, plaintiff and her husband accepted the said offer and defendant informed plaintiff that suit property can fetch an amount of Rs. 27 lakhs and plaintiff and her husband agreed for Rs. 27 lakhs as sale consideration of the suit property.
38. The husband of the plaintiff was not present at home on 01.08.2009 when defendant came with a prospective buyer of the suit property and informed that he will purchase the suit property for 27 lakhs and handed over an amount of Rs. 3 lakhs by way of cheque as earnest money through defendant. The defendant at that time took some thumb impression of the plaintiff on some blank documents and further took the original title documents of the suit property from the plaintiff in as much as plaintiff was having full faith on defendant being friend of her husband. After sometime husband of plaintiff came and she informed the plaintiff and husband of plaintiff has gone for encashment of the said cheque which could not be enchased on Page No. 19 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 account of difference in signature of the prospective buyer, therefore, husband of plaintiff approached the defendant who took the said cheque from the husband of plaintiff and requested that he will either deliver the said cheque on next day or will pay the bayana amount of Rs. 3 lakhs in cash after collecting the same from the prospective buyer. However, the defendant did not return the property documents nor he has paid the said amount despite the request made by husband of the plaintiff.
39. It is contended that defendant on 06.09.2009 and thereafter on different dates approached the suit property along with some other persons and demanded vacant possession of the suit property claiming that he is owner of the suit property through sale documents allegedly executed by plaintiff in his favour. However, the defendant and his henchman left the suit property threatening them that they will come again with more force and will take the possession of the suit property. The defendant did not return the title documents of the suit property to the plaintiff despite visits made time and again at his residence.
40. It is further contended that plaintiff has not received a single penny as sale consideration of the suit property as deposed by PWs including plaintiff/PW1 and her husband/PW4 and version of the plaintiff is supported by PW2 & PW3. From the deposition of the witnesses it is clear that defendant is in habit of getting the title documents of the property of different persons while advancing loans and thereafter, usurped the said properties by playing fraud.
41. It is further contended that there are admissions of the defendant as DW1 in as much as defendant has admitted that he is Page No. 20 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 having friendly relations with the husband of plaintiff and defendant failed to give an explanation as to how he happened to have the source of money of Rs. 27 lakhs for paying the sale consideration to plaintiff for purchase of suit property. The other DWs namely DW2 the Ld. Notary and DW3 the attesting witness to the sale documents also did not support the case of the plaintiff. The defendant is relying upon following fabricated documents which are not registered even and are liable to be rejected in view of the law laid down by Hon'ble Supreme Court in Suraj Lamps Suraj Lamp & Industries Pvt. Ltd Vs State of Haryana & Anr., AIR 2012 SC 206 as well as Hon'ble High Court of Delhi in RSA no. 267/2017 titled as Pushkar Singh Bisht v. Bhim Singh Bisht.
42. During the course of arguments Ld counsel for plaintiff has raised the contention that for the complete sale transaction there must be agreement between the seller and purchaser coupled with the payment of consideration. It is submitted that sale documents if genuine are to be preferred over oral evidence by virtue of provisions of Section 91 & 92 of the Indian evidence Act, however, the sale documents of defendant are forged and fabricated as such these documents are not covered by the abovesaid provisions of Indian Evidence Act.
43. It is the further contention of Ld counsel for plaintiff that defendant was having fiduciary relationship with plaintiff so as to dominate his will and burden of proof is on defendant to prove the absence of fraud, misrepresentation or undue influence in execution of the sale documents in favour of defendant by plaintiff /covendors in as much as defendant was in dominating position to influence the will of the plaintiff.
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44. It is the further contention of Ld. counsel for plaintiff that defendant failed to make out the case of execution of sale documents in favour of defendant atleast on account of either of nonpayment of consideration or having illegal custody of the original sale documents of the suit property, which defendant kept in his possession. It is further contended that the documents must be appreciated not only on the basis of language used in the sale documents but also after ascertaining the real intention of the parties gathered from the surrounding circumstances.
45. It is the further contention of Ld counsel for plaintiff that non payment of sale consideration did not complete the sale transaction and in such circumstances the sale documents is to be declared null and void in as much as sale documents were never executed in favour of defendant as per deposition of PW1.
46. Per Contra, Ld. counsel for defendant has contended that the documentary evidence excludes the oral evidence and the sale documents in respect of the suit property are duly executed and notarized in the presence of public notary and the plaintiff had appended her signatures as a vendor to the sale documents. Therefore, from the conduct of plaintiff it is crystal clear that the sale documents were executed in favour of defendant in as much as plaintiff from her conduct proved that the sale documents were executed in favour of defendant.
47. The admission of the oral evidence for proving the contents of a document is excluded under Section 91 of the Indian Evidence Act and the oral evidence is also excluded under Section 92 of the Indian Evidence Act for contradicting the terms of a contract Page No. 22 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 where the deed is proved. It may be noted that Section 91 & 92 in effect supplement each other. Section 92 excludes the admission of oral evidence for the purpose of contradicting, verifying, adding or to subtracting from the terms of the document properly proved under Section 91 and it may be said that it make the proof of the documents conclusive of its contents.
48. It is relevant to observe here that the two Sections namely Section 91 & Section 92 of the Act differs in some material particulars i.e., Firstly, Section 91 applied to all documents whether they purport to dispose of rights or not, whereas Section 92 applies to documents which are dispositive in nature.
Secondly, Section 91 applies to unilateral as well as bilateral documents whereas Section 92 appears only to bilateral documents.
Thirdly, Section 91 applies universally to all documents, whereas Section 92 applies only to the executant to the documents or their representative interest.
49. It may be relevant to state that persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contract, vary, add to, or subtract from the terms of the documents. It is only when the effect of the document as between the parties or their representative in interest is considered only than the rule under Section 92 about the exclusion of oral agreement can be invoked. This fact is further made clear by the provisions of Section 99 itself which provides that persons who are not parties to a document may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the Page No. 23 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 contract which terms also include to contradict the said terms or to add or to subtract from them.
50. It may be noted that if the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is a latent ambiguity that extrinsic evidence in the shape of interpreting in which both the parties have concurred should be admissible. However, in the present case, there is no such latent ambiguity for which conduct of the parties is to be seen in as much as details of vendor and vendee are mentioned in the details along with sale consideration in the sale documents.
51. It may be noted here that plaintiff has pleaded that earlier she had agreed to dispose off the suit property for an amount of Rs. 27 lakhs subject to payment of 2% commission on the sale consideration payable by the plaintiff way back in Nov. 2008, however, on 01.08.2009, when husband of the plaintiff was not present defendant along with prospective buyer came to the suit property and the prospective buyer handed over and amount of Rs. 3 lakhs by way of cheque as earnest money and defendant got her signatures on certain documents, blank papers as well as on a register and had also taken away the sale documents of the suit property. However, her husband came, later on, and he had gone to get encashed the said cheque, which could not be encashed due to some mistake in the signature of the drawer and immediately husband of the plaintiff approached the defendant with the said cheque to get rectified the signature of the drawer and defendant has promised to return the cheque after fresh signature of the drawer or will pay the amount in cash. However, neither the amount is paid not the said cheque was returned.
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52. It may be relevant to mention here that this incident took place on 01.08.2009 and till 06.09.2009 when the defendant approached the plaintiff and her husband to vacate the suit property and thereafter, on 19,09.2009, with the same directions, plaintiff had never approached the public authority with the grievance that defendant had taken her signatures on sale documents and a register and has not paid a single penny as sale consideration.
53. It is the case of plaintiff that defendant has got installed electricity meter fraudulently in his name in the first floor of the suit property on 28.02.2007 in term of Ex. DW1/3 containing the details as Ram Niwas S/o Sh. Roshan Lal (Roshan lal is the husband of the plaintiff) and name of father of defendant is Tika Ram. However, plaintiff has never pleaded that this fact of fraudulent installation of electricity meter in the suit property came to the knowledge of plaintiff after alleged execution of sale documents fraudulently by defendant. Therefore, atleast from that day, when the said act of fraud committed by the defendant by getting electricity meter transferred in his name with wrong parentage on 28.02.2007 (this date is of energisation of electricity connection in the suit property and not the date from which the electricity connection was transferred in the name of defendant) or thereafter and there was no reason for plaintiff to have blind faith on defendant however, the faith of the plaintiff or her husband must have shaken.
54. Otherwise also, plaintiff in her crossexamination has admitted as under :
"It is correct that in the suit premises an electric connection was installed in the name of defendant Ram Niwas. Voltd. (I had then lodged a complaint with BSES). I do not remember the date when electric Page No. 25 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 connection was installed in the name of defendant Ram Niwas. I had not obtained any NOC from defendant Ram Niwas, for getting the electricity connection changed in my name."
55. Therefore, admittedly the defendant got transferred the electricity connection in the suit property in his name and plaintiff never made any complaint to BSES or ever tried to get the said electricity connection transferred in her name.
56. It may be noted here that the plaintiff was not supposed to handover the original documents of the suit property without getting the full and final payment of sale consideration to the tune of Rs. 27 lakhs from the defendant if defendant had earlier played fraud upon plaintiff by getting transferred the electricity connection installed in the suit property in his name. Because after having committed such a big fraud of installation of electricity connection in the suit property in his name by defendant, plaintiff as an ordinary prudent person man must never have parted with the original sale documents without getting even a single penny of sale consideration. Therefore, the conduct of the plaintiff or her husband is highly improbable and against the common course of human conduct so far as signing the blank documents by plaintiff and, thereafter, handing over of the original documents of the suit property without getting a single penny of the sale consideration, and thereafter, not making any grievance before any public authority including police for such alleged fraud committed by the defendant upon the plaintiff and her husband.
57. It may also be relevant to note here that the sale documents were executed and notarized on 31.07.2009. The case of the plaintiff is that defendant has taken the original sale documents on 01.08.2009 from the plaintiff after giving her an amount of Rs. 3 lakhs Page No. 26 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 by way of cheque as earnest money. However, the plaintiff neither proved any of the details of the said cheque which was presented before the bank in as much as the plaintiff must have produced, the relevant documents through which the said cheque was presented before the bank by summoning the relevant record from the concerned bank. No receipt was taken by the husband of the plaintiff when the alleged cheque was given to the defendant till the date the defendant threatened plaintiff and her husband to dispossess them from the suit property on 06.09.2009 and thereafter, on 19.09.2009. The conduct of plaintiff and her husband is not that of an ordinary prudent man as they nor kept any receipt or other document to show the factum of issuance of cheque of Rs. 3 lakhs by the proposed buyer to the plaintiffs or the receipt thereof was taken from the defendant when the cheque of Rs. 3 lakhs was handed over by the husband of plaintiff to defendant for getting rectified the anomaly regarding signature of the drawer on the said cheque in as much as the defendant, as pleaded by plaintiff, had also taken with him the original sale documents and his conduct was not above board as he got transferred electricity meter in his name in the suit property.
58. Now so far as payment of sale consideration is concerned plaintiff contended that she has not been paid even a single penny however, her conduct depicts otherwise in as much as sale documents including the receipt were executed and notarised on 31.07.2009 but neither the plaintiff nor husband has agitated before the Ld. Notary before whom the sale documents were notarised, that the sale consideration has been paid by the defendant to plaintiff at any point of time and even the cheque of Rs. 3 lakhs have not been got encashed.
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59. On the contrary the Ld. Notary appeared as DW2 and testified that signature and thumb impression of the persons are taken in his office in the register and he did not remember whether plaintiff and defendant had come to his office for attestation of documents. He did not know the defendant personally. However, he has proved the contents of the notary register wherein the factum of notarization of the sale documents of the suit property is depicted as detailed in Ex. DW2/1 and Ex. DW2/2.
60. The testimony of DW2 is duly corroborated by DW3 the attesting witness who has proved that he has signed the sale documents Ex. DW1/1, however, in his crossexamination he has admitted that he has been called by defendant/Ram Niwas in the month of July 2009 and he reached at a shop of a document writer in Gali Shani Mandir, Najafgarh, where he found the defendant and husband of the plaintiff Roshan Lal present and 810 persons were there whom he did not know personally. Defendant pointed him that he has purchased the suit property of Roshan Lal and documents were already prepared and DW2 has put his signatures on the same. However, he was not told about the contents of the documents but it was disclosed that they were sale documents. He admitted that the defendant has not paid the amount in his presence. He did not remember whether the plaintiff was present at the shop of deed writer or not. DW2 submitted and testified that he didn't remember whether the plaintiff was present at the shop of deed writer or not. None of the parties had signed in his presence as they had already put their signatures and DW2 had put his signatures.
61. It may be noted that the plaintiff was bound to lead evidence as to how plaintiff has duped and defrauded by the Page No. 28 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 defendant so much so that defendant managed to got executed sale documents in respect of suit property in his favour. The plaintiff has led no documentary evidence to prove the alleged fraud committed by defendant. Otherwise, the evidence led by plaintiff is not only unworthy of credit but also unbelievable in as much as plaintiff failed to explain as to how plaintiff put her signature on the sale documents in the capacity of a vendor on 31.07.2009 in the presence of Notary Public (DW2) & attesting witness (DW3). The conduct of the plaintiff also appears to be not that of an ordinary prudent man in as much as plaintiff after allegedly made to sign the sale documents in his favour by defendant neither demanded the sale consideration nor the original sale documents. The above said conduct of the plaintiff depicts that the plaintiff has at no point of time objected either to the execution of sale documents in favour of defendant, or handing over the chain of sale documents of the suit property to defendant.
62. From the conjoint reading of the testimony of DW2 and DW3 i.e. Notary public and the attesting witness to the sale documents, it can be safely concluded that the sale documents were notarized in the presence of the notary public including the attesting witness. Had the amount not been paid by the defendant either to the plaintiff or her husband, they would have disclosed the said fact either to the attesting witness or Notary Public and would have flatly refused to put signatures on the notarial register before the Notary Public in the presence of attesting witness. Therefore, neither the plaintiff nor her husband has ever agitated before any person that no amount of sale consideration has been paid by defendant to the plaintiff. The plaintiff never refused to put her signatures on the sale documents as well as on the notary register on 31.07.2009 that she has not received Page No. 29 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 even a single penny of sale consideration, therefore, she will not append the signature on the said documents and the notarial register.
63. When the testimony of plaintiff is juxtaposed with that of the defendant, the deposition of the witnesses of the defendant inspires more confidence and the case of the defendant is more credit worthy that he has paid the sale consideration to the plaintiff for purchase of the suit property and plaintiff executed sale documents in favour of defendant.
64. However, so far as the nonproduction of the source from where the amount of Rs. 27 lakhs was arranged, suffice is to say that in view of the sale documents including the receipt wherein the details regarding payment of sale consideration is writ large, it cannot be doubted that defendant has not the capacity to pay the sale consideration for payment of sale consideration to the plaintiff. Otherwise also, if the amount is paid in cash and not disclosed in the income tax return by the defendant it is between the defendant and the income tax department for which the defendant may face penal consequences, however, non production of such evidence by the defendant did not raise the doubt regarding the arrangement of funds for the purchase of the suit property and it can safely be concluded that the defendant has paid the sale consideration to plaintiff and thereafter plaintiff has executed the sale documents in favour of the defendant which were notarized on 31.07.2009.
65. It is settled law that when in respect of a transaction a written document is executed, any kind of oral evidence contrary to the documents is inadmissible. If the allegation of fraud if made by a party, it must specify giving role of each person and all those involved Page No. 30 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 in the fraud must be made a party. The bare allegation that plaintiff signed the documents without reading the contents thereof is not a ground for cancellation of the sale documents. If the plaintiff had chosen not to read the documents she did so at his own peril.
66. From the abovesaid discussion, it can be safely concluded that plaintiff has not laid the basic edifice to prove that sale documents are managed by defendant by way of practising fraud upon the plaintiff or by way of mis representation or undue influence, as such these issues are decided in favour of the defendant and against the plaintiff.
Issue Nos. 4, 5 , 6 , 7 , 8 & 967. The onus to prove these issues is on the defendant/counter claimant. So far as the counter claim of the defendant is concerned defendant has sought specific performance of the agreement to sell executed and notarized on 31.07.2009. Although the plaintiff has denied the execution of any sale document including the above said agreement in favour of the defendant however, the only ground on which the plaintiff has defended the counter claim is that no payment of sale consideration has been made by defendant to the plaintiff and the defendant has fraudulently got signature of the plaintiff on the sale documents including agreement to sell without payment of single penny as consideration in as much as the cheque for bayana amount of Rs. 3 lakhs was also not returned to the plaintiff by defendant.
68. However, as stated in the foregoing paras of this judgment that plaintiff failed to prove that she has not been paid the sale consideration for purchase of the suit property and therefore, it Page No. 31 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 can be safely concluded that, on the finding recorded earlier, the defendant has paid the amount of Rs. 27 lakhs to the plaintiff. Now the question arises whether the defendant is entitled for a decree of specific performance.
69. In this regard it may be noted that section 16(c) of the Specific Relief Act 1963, requires every plaintiff in a suit for specific performance to aver and prove readiness and willingness to perform his part of the contract. Readiness means existence of financial capacity and willingness means intention to go ahead with the transaction. Admittedly, there is not a single document on record which shows that plaintiff has not received the sale consideration and without getting a single penny of sale consideration she had signed the sale documents before the Ld. Notary Public. Further, had no amount of sale consideration been paid by defendant to the plaintiff, plaintiff would not have signed the sale documents before Notary Public and further plaintiff failed to explain as to how the defendant happened to be in possession of portion of the suit property i.e. ground floor of the suit property. The complaint made by plaintiff regarding illegal trespassing of the suit property at ground floor by the defendant has been found to be false by the Ld. Criminal court as the defendant and his other associates have been acquitted. Apart from that, it is proved on record that even electricity meter/connection in the suit property is installed in the name of defendant and defendant has not been crossexamined on this aspect, therefore, admittedly defendant is in possession of portion of the suit property. Therefore, it can be stated that defendant is not ever ready and willing to perform his part of the contract.
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70. Now comes as to whether defendant is entitled to the discretionary relief of specific performance which is one of the aspect under issue no. 7 regarding counterclaim of the defendant. Section 20 of the Specific Relief Act provides as under :
"20. Discretion as to decreeing specific performance.--
(1)The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1. Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause
(b).
Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
Page No. 33 of 36Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
71. Sub Section 3 makes it crystal clear that courts is supposed to pass decree of specific performance where the plaintiff has done substantial act in consequence of a contract/agreement to sell and substantial obviously means the payment of substantial amount of money. Substantial act may would have means for payment by plaintiff of substantial amount of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the agreement to seller.
72. It is settled proposition of law that the court has to exercise its discretionary power U/s 20 of the Specific Relief Act in a judicious manner and court is not bound to grant such relief merely because it is lawful to do so. The exercise of discretion to order specific performance require the court to satisfy itself that the circumstances are such that it is equitable to grant for decree of specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstance of the case, the conduct of the parties and their respective interest underneath the contract. No specific performance can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words the courts discretion to grant specific performance is not exercised in the contract is not equal and fair, although contract is not void. Further relief of specific performance is an equitable relief and if there are latches on the part of the person suing for such a relief it may be refused to him. The principle Page No. 34 of 36 Civil Suit No.:206/2067 Smt. Sona Devi vs. Sh. Ramniwas Dagar DOD : 10.06.2020 underlying 20 of the Specific Relief Act is that decree for specific performance is in the discretion of the court but the discretion should not be used arbitrarily and that discretions should be exercised on the sound principle of law which is capable of correction by the appellate courts.
73. Adverting to the facts of the counter claim preferred by defendant, it may be noted that plaintiff although denied that she has not received any penny of sale consideration, yet being a signatory of the said documents in the capacity of the vendor before Ld. Notary in the presence of attesting witness, the plaintiff has never agitated that she has not received a single penny as consideration. The plaintiff has appended her signatures without any protest, therefore, it can be presumed that the plaintiff has received the amount of sale consideration and defendant is in part possession of the suit property, as stated. Therefore, having performed his part of the contract, it is the plaintiff, who failed to perform her part of the contract. Therefore, defendant is found entitled to a decree of specific performance, as prayed for. So far as rent agreement is concerned, defendant during the course of his crossexamination also could not point out as where is the rent agreement in the judicial file after being asked to find out. Otherwise also this document is not exhibited and marked only, therefore It cannot be proved by defendant that rent agreement, if any, executed between the plaintiff and defendant. In view of the abovesaid findings, issue nos. 5 & 6 are decided against the defendant and in favour of the plaintiff and the remaining issues are decided in favour of the defendant and against the plaintiff.
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74. In view thereof, the suit of the plaintiff is dismissed, however, the counter claim filed by the defendant is allowed and decreed as follows :
(a) Decree of specific performance of agreement to sell dated 31.07.2009 executed by the plaintiff and defendant in respect of the suit property i.e. built up plot RZ26, Gali No. 8, Ajay Park, Naya Bazar, area measuring 83 sq. yards, out of Khasra No. 4/15, situated in the revenue estate of Village Najafgarh, Delhi is passed in favour of the defendant and plaintiff is directed to handover the peaceful and vacant possession of the first floor of the said built up property with further directions to execute the documents thereof.
(b) Decree of permanent injunction with respect to first floor of the suit property i.e. built up plot RZ26, Gali No. 8, Ajay Park, Naya Bazar, area measuring 83 sq. yards, out of Khasra No. 4/15, situated in the revenue estate of Village Najafgarh, Delhi is passed in favour of the defendant and against the plaintiff from selling, alienating encumbering transferring or executing the sale deed and interfering in the suit property.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
DR Digitally signed
by DR VIJAY
Announced in the open court on
10th Day of June, 2020
VIJAY KUMAR
DAHIYA
KUMAR Date:
2020.06.17
DAHIYA 15:31:42 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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