Delhi District Court
Prof. P. K. Sharma vs Ms. Kamlesh Sharma on 20 May, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 30/07
Unique Case ID No. 02401C0115072007
Prof. P. K. Sharma,
MA, L.L.B,
R/o 101 Sector14,
Gurgaon 122001 .....Plaintiff
Versus
1 Ms. Kamlesh Sharma, D/o Late Sh. Ram Wadhya,
Residing at Flat No. 271, Pkt2, Sector23, Rohini,
Delhi110085.
2 Ms. Kiran Sharma, D/o Late Sh. Ram Wadhaya,
Residing at Flat No. 271, PK2, Sector23, Rohini,
Delhi110085.
3 Mrs. Madhu Kalia Wd. Of Late Sh. S. C. Kalia,
Residing at Flat No. 271, Pkt2, Sector23, Rohini,
Delhi110085 .........Defendants
Date of Institution of Suit : 02.02.2007
Date when reserved for orders : 13.05.2011
Date of Decision : 20.05.2011
JUDGMENT
1 Vide this judgment I shall decide the suit for possession, mesne profit filed by the plaintiff against the defendants and the Suit no. 30/07 Page 1/51 counter claim for seeking decree for specific performance filed by defendants against the plaintiff. The brief facts necessitating in filing the present suit are given as under:
2 That plaintiff is the original allottee of MIG, Flat bearing No. 271, 3rd Floor, Pocket2, Sector 23, Rohini, Delhi which was alloted to him vide allotment letter no. M024(505) 98/RO/NP. The possession of the said flat was handed over and freehold ownership rights of the flat were conveyed by the DDA vide conveyance deed dated 21.01.2000. The electricity,water and house tax of the suit property is also in the name of plaintiff. Prior to 26.01.2004, defendant no. 1 & 2 were living in a rented accommodation bearing H. No. 10703/17, Nabi Karim, Jhandewallan, New Delhi 110055 and defendant no. 3 was living separately with her husband in H. No. 121, Ram Dutt Enclave, Uttam Nagar, Delhi. Defendant no. 1 to 3 are the real sisters of the plaintiff but the relation between them now snapped. Defendant no. 1 & 2 due to their quarrelsome behaviour developed strained relationship with their neighbours at Nabi Karim and had to flee the said mohalla in January 2004 apprehending danger to their life.
3 Defendant no. 1 & 2 approached the plaintiff under the Suit no. 30/07 Page 2/51 said distressed condition in early January 2004 with the request to permit them to reside in the plaintiff's flat temporarily for a month, so as to enable them to make alternative arrangement for their living. They promised to vacate the said flat within a month from the date of occupation. Believing the promises of defendant no. 1 & 2, plaintiff entrusted the suit property to them on 26.01.2004 on compassionate grounds and without any monetary consideration. It is further alleged that defendant no. 1 & 2 in order to grab the suit property illegally facilitated defendant no. 3 to trespass into the same. 4 Defendant no. 1 to 3 are thus in wrongful possession of the suit property. Despite repeated requests to vacate the suit property and handover the vacant possession to the plaintiff, defendants have not done so till date. Consequently plaintiff served a notice dated 08.07.2004 upon the defendants calling upon them to vacate the suit premises and handover peaceful and vacant possession of the same within a month but the said notice remained unreplied. The defendant kept on lingering the matter on one pretext or the other. Ultimately plaintiff served a legal notice dated 05.12.2006 upon the defendant calling upon them to vacate the suit property and deliver the vacant possession to the plaintiff. The said notice was duly served upon them but they failed to give any reply of the same. As per the plaintiff, Suit no. 30/07 Page 3/51 defendants have been in wrongful possession of the suit property therefore they are liable to pay mesne profit @ 5000/ p.m from the date of wrongful possession till the date of delivery of possession of the said flat to the plaintiff alongwith interest @ 12% p.a for the entire period. On the basis of the above averments present suit has been filed for adjudication.
5 Pursuant to the summons defendant appeared and filed their written statement taking various preliminary objections that the suit is not maintainable as same has been filed without any cause of action. That the suit has been filed with the intention to harass and blackmail the innocent defendants, that plaintiff has not valued the suit property and has not paid proper court fees.
6 On merit it is stated that plaintiff was the sole owner of the suit property but at present defendants are deemed to be the owners in possession as per the settlement which was arrived at between the plaintiff and the defendants. The possession of the suit property was given to defendants as per the settlement. It is denied that possession of the suit property was given to defendant no. 1 & 2 on 26.01.2004 on compassionate grounds by the plaintiff for one month only out of love and affection and without any monetary consideration. It is stated that Suit no. 30/07 Page 4/51 the possession of the suit property was given to the defendant by the plaintiff on 24.01.2004 after receiving the full consideration amount of Rs. 12 lacs. It is further stated that defendant no. 3 has rightly shifted to the suit property in the first week of May 2004. It is denied that defendants are in wrongful possession of the suit property. It is also denied that defendant demanded a ransom money of Rs. 12 lacs or alternate accommodation in Mansarover Garden, Delhi for vacating the suit property. It is not denied that plaintiff had issued legal notice dated 08.07.2004 but the said notice was totally false and even the plaintiff had admitted the said fact before defendant no. 1& 3 and he had even torn the copy of the said false notice after taking it from defendant no. 1 and further declared that said notice was of no value. It is further stated that plaintiff had sent false legal notice dated 05.12.2006 without any justification. It is stated that defendants are deemed to be the owner of the suit property and plaintiff is legally bound to execute the sale deed in favour of the defendants. All other averments have also been denied. It is prayed that suit be dismissed. 7 Defendants have also filed counter claim on the allegation that after the death of their mother on 08.03.92, tenancy rights of property bearing No. 10703/17, Jhandewalan, Nabi Karim, New Delhi 110055 devolved upon defendants. Defendant no. 1 & 2 Suit no. 30/07 Page 5/51 stayed in this rented accommodation and finally vacated the same on 28.01.2004 in terms of possession letter executed on 24.01.2004. The said rented accommodation was wanted by the landlord and accordingly as per his request, defendants had agreed to vacate the same and the landlord had agreed to give an amount of Rs. 12 lacs to the defendants for relinquishing their right in the rented accommodation. A sum of Rs. 6 lacs was paid by the landlord to the defendants on 08.11.2003 in the rented accommodation in the presence of Sh. D.R. Bhatia and husband of defendant no. 3. Accordingly, defendant no. 1 & 2 started looking for buying some accommodation and in this process the plaintiff got involved as he has come to know about the settlement of the defendants with the landlord. The defendants had seen some properties but they were turned down by the plaintiff on various pretexts. Ultimately, plaintiff offered his own MIG Flat bearing No. 271, 3rd Floor, Pocket2, Sector23, Rohini, Delhi110085 to defendant no. 1 & 2 for sale for Rs. 12 lacs in total. The defendants wanted to make the entire payment in one go to the plaintiff but he insisted for some advance so that he could renovate the suit property . Accordingly, a sum of Rs. 30,000/ was given in cash to the plaintiff by defendant no. 3 on 14.12.2003 at her residence at Uttam Nagar, New Delhi in the presence of other defendants and her husband. But in the night only the plaintiff telephoned defendant no. 3 Suit no. 30/07 Page 6/51 and requested for more amount for the renovation Accordingly, a sum of Rs. 70,000/ in cash was paid to him on 15.12.2003 by defendant no. 3 in her school in the presence of Sh. Pawan Bhatia, S/o Late Sh. D. R. Bhatia.
8 It is further alleged that defendant requested the plaintiff for the keys of the suit property as they wanted to have Havan on 26.01.2004 but plaintiff insisted for the balance amount of Rs. 11 lacs before handing over the possession. Accordingly a sum of Rs. 11 lacs was paid in cash to the plaintiff by the defendants on 25.01.2004 in the rented house in the presence of Sh. Pawan Bhatia, S/o Late Sh. D. R. Bhatia, husband of defendant no. 3, Smt Asha and her husband Dalip and plaintiff had given the entire bunch of keys of the suit property to the defendants after receiving the cash amount of Rs. 11 lacs. At that time, he also promised that he would transfer the said flat in the name of defendants within few days after getting necessary paper prepared. The defendant no. 3 also shifted to the suit property and started residing with defendant no 1 & 2 in the first week of May, 2004. It is further alleged that on 14.03.2004, the defendant alongwith Smt Asha and her husband Dalip went to the house of the plaintiff at Gurgaon and requested him to transfer the suit property in the name of defendants but plaintiff abused and pushed around the defendants, he Suit no. 30/07 Page 7/51 even called the Police. Ultimately, plaintiff sent false notice dated 08.07.2004 to the defendant and also to Smt. Asha and her husband Dalip. The defendants were shocked by the conduct of the plaintiff, defendant no. 1 & 3 went to the college on 16.07.2004 and confronted him regarding his promise and the deal. The defendant no. 1 & 3 had also taken the bills of electricity and water which contained the past arrears, which had not been paid by the plaintiff. The plaintiff paid the amount of the electricity and water bill amounting to more than Rs. 8000/ to the defendant no. 1 & 3 during the said visit on 16.07.2011. He also stated that the notice had no value as it was never sent by him and same can be ignored by them. The plaintiff had torn the copy of the notice. However, plaintiff showed his true colour by issuing another false notice dated 05.12.2006 to the defendants and subsequently filed the above suit. As per the defendant plaintiff is legally bound to execute the sale deed of the suit property in the name of the defendants as per the settlement. On the basis of the above averment present counter claim has been filed with the prayer that a decree of specific performance may be passed in favour of the defendants and against the plaintiff thereby directing the plaintiff to execute the sale deed of the suit property in their favour. 9 Plaintiff filed replication to the written statement thereby reiterated the averments made in the plaint and denied the averments Suit no. 30/07 Page 8/51 made in the written statement.
10 Plaintiff also filed written statement to the counter claim of the defendants taking preliminary objections that the counter claim is barred by law of limitation. That same is filed without proper court fees. That same is without any cause of action.
11 On merit it is denied that defendants were paid Rs. 12 lacs by the landlord. It is also denied that plaintiff ever offered to sell his flat bearing No. 271, Pocket2, Sector23, Rohini, Delhi to defendants for total sale consideration of Rs. 12 lacs . It is stated that defendants were allowed to live in the suit property on their request for a month w.e.f 26.01.2004 on compassionate grounds as family members under distress conditions. It is denied that defendant no. 3 paid a sum of Rs. 30,000/ on 14.12.2003 and a sum of Rs. 70,000/ on 15.12.2003 to the plaintiff or that the plaintiff visited the house of defendant no. 3 Uttam Nagar on 14.12.2003 or her school on 15.12.2003 or ever asked for any money from the defendants for the renovation or installation of any kind in the suit property. It is also denied that plaintiff either asked for Rs. 11 lacs from the defendants or defendants paid Rs. 11 lacs on 25.01.2004 or plaintiff ever promised to transfer the flat in the name of defendants. It is stated that defendant Suit no. 30/07 Page 9/51 no. 1 to 3 alongwith Asha and her husband Dalip came to the house of the plaintiff on 14.03.2004 under well planned conspiracy with the intention to extort ransom money from the plaintiff for vacating the suit property by putting him under the fear of getting his young daughter kidnapped. It is denied that defendants ever requested for transfer of the suit property. It is denied that defendants met the plaintiff on 16.07.2004 in his college and confronted him with any promise.
It is also denied that plaintiff ever entered into any settlement with the defendants to sell the suit property to them. All other averments have also been denied. It is prayed that counter claim of the defendant be dismissed with cost.
12 On the basis of the pleading of the parties vide order dated 17.01.2008 following issues have been framed for adjudication:
1. Whether there is any cause of action with the plaintiff to file the suit? OPD
2. Whether the plaintiff has properly valued the suit for the purpose of court fees and jurisdiction? OPD
3. Whether the plaintiff is entitled to recover the possession of the suit property bearing Flat No. 271, 3rd Floor, Pocket2, Suit no. 30/07 Page 10/51 Sector23, Rohini, Delhi? OPP
4. Whether the plaintiff is entitled to claim mesne profit at the rate of Rs. 5000/ p.m from the defendants from the date of wrongful possession to the delivery of the possession? OPP
5. Whether the plaintiff is entitled to claim interest, if so, at what rate and for what period? OPP
6. Whether the counter claim dated 09.03.2007 is barred by law of limitation? OPP
7. Whether the defendants had paid a sum of Rs. 12 lacs to the plaintiff as consideration for the sale of the suit property bearing Flat No. 272, 3rd Floor, Pocket2, Sector23, Rohini, Delhi? OPD
8. Whether the defendants are put in possession of the suit property as part performance of an agreement? OPD
9. Whether the defendants are entitled to a decree of specific performance against the plaintiff for execution of the sale deed of suit property? OPD
10. Relief 13 Thereafter defendants filed an application U/o 14 Rule 5 CPC for framing of additional issue. The said application was disposed Suit no. 30/07 Page 11/51 off vide order dated 05.12.2009 whereby the Ld. Predecessors of this Court has been pleased to reframe issue no. 1 & 2 as under:
1) Whether there is no cause of action with the plaintiff to file the suit? OPD
2) Whether the plaintiff has not properly valued the suit for the purposes of court fees and jurisdiction ? OPD 14 In order to prove his case plaintiff examined himself as PW1 and reiterated the averments made in the plaint. He exhibited the possession slip dated 22.11.1999 Ex. PW1/A, conveyance deed dated 21.01.2000 Ex. PW1/B, complaint dated 11.01.2002 filed by Smt. Kamlesh Sharma Ex. PW1/C, legal notice dated 08.07.2004 Ex. PW1/D, another notice dated 05.12.2006Ex. PW1/E, receipt of money order Ex. PW1/F, order dated 19.07.2002 passed by Sh. Rajender Kumar, Ld. MM, Delhi ex. PW1/G, ration card Ex. PW1/H, complaint letter of Sh. Manjeet Singh dated 15.12.2007 Ex. PW1/J. 15 Plaintiff also examined Sh. Rakesh Kumar, ALBR Section EOW, Crime Branch, Delhi as PW2 who exhibited the complaint of Kamlesh Sharma dated 14.01.2006 Ex. PW2/1.
16 Plaintiff also examined Sh. Kailash Chander Saxena land lord of the defendants as PW3, during his examination in chief, PW3 Suit no. 30/07 Page 12/51 deposed that he is the landlord of property bearing No. 10703/17, Nabi Karim, Jhandewallan, New Delhi. Ms. Kamlesh Sharma, Ms. Kiran Sharma and Ms. Madhu Sharma were his tenants in the said property at a rent of Rs. 50/ p.m. The said tenants voluntarily vacated the tenanted property on 24.01.2004 vide possession letter dated 24.01.2004. Neither he ever enquired the said tenants to vacate the said tenanted property nor he ever paid any money to any one of them for the purpose.
Plaintiff also examined Sh. Manjit Singh as PW4, Sh. S. K. Puri, Advocate as PW5, Sh. Shiv Dayal, LDC, Record Room (Criminal) as PW6. Pandit Ram Rattan as Ex. PW7 and Sh. Bhagirath Lal Vashisth as PW8.
17 In order to prove their case defendants examined defendant no. 3 as DW1 who reiterated the averments made in the written statement in her examination in chief. She exhibited the letter dated 19.08.2002 Ex. DW1/1, letter dated 16.09.2002 Ex. DW1/2, letter dated 25.12.2005 Ex. DW1/3, letter dated 23.06.2006 of defendant no. 1 Ex. DW1/4, letter dated 29.06.2006 written to DCP Ex. DW1/5, letter dated 31.07.2006 Ex. DW1/6, letter No. C2827 of DCP Ex. DW1/7 and letter dated 14.11.2007 of DCP Ex. DW1/8. Suit no. 30/07 Page 13/51 18 Defendant also examined Sh. Kamlesh Sharma, defendant no. 1 and Ms Kiran Sharma as DW2 & DW8, they also reiterated the averments made in the written statement in their examination in chief.
19 Defendant also examined one Pawan Bhatia as DW3 in support of their case. DW3 in his examination in chief deposed that the family of defendants was earlier residing as tenant in property bearing No. 10703/17, Nabi Karim, Jhandewalan Road, New Delhi under the tenancy of Sh. K. C. Saxena . The tenancy was earlier in the name of mother of the defendants who died on 08.03.1992 and thereafter the tenancy devolved on defendants and on the request of the landlord, Sh. K. C. Saxena the defendants vacated the tenanted premises on 28.01.2004 and possession letter dated 24.01.2004 was executed. He further deposed that defendants started looking for buying some property and plaintiff came to know about the same hence offered his own Flat no. 271, 3rd Floor, Pocket2, Sector23, Rohini, Delhi for sale to the defendants for Rs. 12 lacs. He further deposed that Rs. 70,000/ in cash was paid on 15.12.2003 by defendant no. 3 to the plaintiff and Rs. 11 lacs in cash was paid by the defendants on 25.01.2004 in the presence of Smt Asha, her husband, husband of defendant no. 3 and in his presence and the plaintiff had given the keys of the suit property to Suit no. 30/07 Page 14/51 the defendants and assured the defendants that he will transfer the ownership of the suit property in the name of the defendants. 20 Defendants also examined Smt. Asha as DW4. During her examination in chief, DW4 reiterated the versions of DW3 except that on 14.03.2004 she, her husband and defendants went to the house of the plaintiff at Gurgaon and requested him to transfer the said suit property in the name of the defendants but the plaintiff abused and pushed around the defendants and called Police and when defendants started narrating the true facts to the Police, the plaintiff again changed colours and requested the Police to go away as it was a family dispute and will be resolved amicably, he again assured the defendants that he will transfer the suit property in the name of the defendants. Defendant also examined Sh. Dalip Singh, husband of Smt. Asha, as DW5. He also reiterated the versions of DW4 in his examination in chief. 21 Defendant has also examined one Ram Avtar as DW6. In his examination in chief, DW6 deposed that he is the owner of the property bearing no. RZ116, GBlock, Nand Ram Park, Uttam Nagar, New Delhi. He was intended to sell the said property and hence he informed property dealers of the area and one Shri Gupta Property Dealer came to his house in the first week of November, 2003 Suit no. 30/07 Page 15/51 alongwith defendant no. 1 to show his property and defendant no. 1 liked the property and said that she will bring her sisters to see the property. In the first week of December 2003, defendant no. 1 & 2 came to see the property and prices was discussed and he claimed Rs. 15 lacs. The defendant no. 1 & 2 requested that they will come again with defendant no.3 and her husband for negotiating sale price and hence defendants and husband of defendant no. 3 came in second week of December 2003 but the deal could not be finalized as the defendants were offering Rs. 12 lacs.
22 Defendant also examined one Ramesh Kumar as DW7. During examination in chief, DW7 deposed that he know the defendant who were residing near to his house. He is running a STD Shop and hence the defendants used to come to his shop for attending telephones. Now the defendants are not residing in the said house since they have vacated the same on 28.01.2004 on the request of their landlord Sh. K.C. Saxena . He also know the plaintiff who is the brother of defendants. On 25.01.2004 there was a telephone call for defendant no. 1 at about 2:00 pm which he received and went to call defendant no. 1, the plaintiff was sitting there and was counting currency notes. He remained there for about 10 minutes and when the plaintiff finished counting, the plaintiff confirmed that the amount so Suit no. 30/07 Page 16/51 counted was Rs. 11 lacs and also confirmed in his presence that in total he has received Rs. 12 lacs for sale of his flat at Rohini and will execute necessary document in favour of the defendants shortly. 23 The plaintiff in rebuttal has examined Sh. Bhagirath as PW1, Smt. Santosh Assistant Accounts Officer, Accounts Officer from DDA PW2 and Sh. Manvinder Pal Singh Officer from Punjab & Sidh Bank as PW3.
24 I have heard the plaintiff who appeared in person and Ld. Counsels for defendants. I have perused the pleadings, evidence and other material placed on record. My issue wise findings are as under: 25 Issue No. 1 Whether there is no cause of action with the plaintiff to file the suit? OPD Issue No. 3 Whether the plaintiff is entitled to recover the possession of the suit property bearing Flat No. 271, 3rdFloor, Pocket2, Sector23, Rohini, Delhi? OPP Issue No. 7 Whether the defendants had paid a sum of Rs. 12 lacs to the plaintiff as consideration for the sale of the suit property bearing Flat No. 272, 3rd Floor, Pocket2, Sector23, Rohini, Delhi? OPD Suit no. 30/07 Page 17/51 Issue No. 9 Whether the defendants are entitled to a decree of specific performance against the plaintiff for execution of the sale deed of suit property? OPD 26 Issue no. 1, 3, 7 & 9 are taken together as they are interconnected. The onus to prove issue no. 1, 7 & 9 is upon the defendants whereas onus to prove issue no. 3 is upon the plaintiff. 27 Plaintiff has taken a plea that he is the owner of the suit property bearing No. 271, 3rd Floor, Pocket2, Sector23, Rohini, Delhi. Defendant no. 1 & 2 were living in a rented accommodation at house No. 10703/17, Jhandewalan, Nabi Karim, New Delhi up till 26.01.2006 due to their quarrelsome nature they developed strained relation with neighbors and had to flee from the said mohalla in January 2004. They approached the plaintiff in early January 2004 with a request to permit them to camp in the suit property for a month. Believing their promise, plaintiff allowed them to live in the suit property on compassionate ground for one month only . However, defendant no. 1& 2 conspired with defendant no. 3 and in order to grab the property illegally, defendant no. 1 & 2 allowed the defendant no. 3 to trespass into the suit property. After the expiry of one month, defendants failed to vacate the suit premises despite the request, Suit no. 30/07 Page 18/51 consequently the plaintiff served notice dated 08.07.2004 upon the defendant which was duly served but they did not give any reply. The plaintiff finally served a legal notice dated 05.12.2006 upon the defendants calling upon them to vacate the suit property but despite the service of the legal notice, defendants neither vacated the suit property nor replied the said notice.
28 On the other hand, defendants although admitted that plaintiff is the owner of the suit property but taken a plea that possession of the suit property was given to them by the plaintiff on 24.01.2004 after receiving the consideration amount of Rs. 12 lacs. They have further taken a plea that defendants were earlier residing in a tenanted premises at Nabi Karim, New Delhi. The said tenanted accommodation was required by the landlord who had agreed to give Rs. 12 lacs to them for relinquishing their right in the rented accommodation. The landlord Sh. Kailash Chander Saxena paid a sum of Rs. 6 lacs to the defendant on 08.11.2003 in the presence of Sh. D.R. Bhatia. Defendant no. 1 & 2 started looking for buying some alternative accommodation. Ultimately plaintiff offered to sell his flat to defendant no. 1 & 2 for Rs. 12 lacs. In order to renovate the suit flat plaintiff was paid Rs 30,000/ in cash on 14.12.2003 but in the night, plaintiff telephoned defendant no. 3 and requested for more money, he Suit no. 30/07 Page 19/51 was again paid a sum of Rs. 70,000/ in cash on 15.12.2003 by defendant no. 3 in her school in the presence of Sh. Pawan Bhatia. 29 The defendant further taken a plea that they requested the plaintiff for the keys of the suit property but he insisted for the balance amount of Rs. 11 lacs before handing over the keys. Accordingly, a sum of Rs. 11 lacs was paid in cash to the plaintiff by the defendanst on 25.10.2004 in the rented house in the presence of Sh. Pawan Bhatia, husband of defendant no. 3, Smt. Asha and her husband Dalip and the plaintiff had given the entire bunch of keys of the suit property to the defendant after receiving the cash amount of Rs. 11 lacs and promised to transfer the said flat in the name of the defendant within few days after getting necessary papers prepared but he failed to do so despite various requests. In order to prove their respective case both the parties have led oral evidence on record.
30 A careful examination of the pleadings and the evidence led on records shows that, It is the admitted case of the parties that plaintiff is the owner of the suit property, however, as per the plaintiff, he allowed defendant no. 1 and 2 to stay in the suit property as a licencee on compassionate ground out of love and affection for one month but they failed to vacate the same despite the services of the Suit no. 30/07 Page 20/51 notice dated 08.07.2004 Ex. PW1/D and legal notice dated 05.12.2006 Ex. PW1/E. Whereas as per the defendant, plaintiff had orally entered into an agreement to sell with respect to the suit property for a total sale consideration of Rs. 12 lacs which was paid in cash in the presence of Sh. Pawan Bhatia, Smt. Asha and Sh. Dalip but the plaintiff failed to execute the sale deed despite various requests. . 31 Now the question which needs to be determined is whether the plaintiff had entered into an oral agreement to sell with respect to the suit premises with the defendants? and Whether the plaintiff had received Rs. 12 lacs in cash from the defendants? 32 A written contract in respect of an immovable property is not only desirable but also would be helpful in ascertaining the terms of contract. All the same law recognizes the freedom of the parties to enter into an oral agreement also. By it vary nature an oral agreement places relatively heaviour burden upon the person pleading it, when compared to one that is needed in respect of a written agreement. A major area of difference between written and oral agreement is that matter of discerning and ascertaining the consensus ad idem of the parties. In the former the clauses in the agreement reflects, it virtually excluding speculations or guess work. Oral agreement on the other Suit no. 30/07 Page 21/51 hand presents spendous task to the court in this regard. The adjudication in such case would mostly on oral evidence.
The Hon'ble Supreme Court of India in Brij Mohan Vs. Subhra Begum reported as 1990 (4) SCC 144 made the following observations in respect of an oral agreement that "We agree with the contention of Ld. Counsel for the appellant to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should be only in written. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of an immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiff to prove that there was a consensus ad idiom between the parties for a concluded oral agreement of sale of immovable properties. Where there was such a concluded oral contract or not would be a question of fact to be determined in the fact and circumstances of each case. It has to be established by the plaintiff that vital and fundamental terms of sale of a property were concluded between the parties orally, written agreement, if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement".
Suit no. 30/07 Page 22/51 33 In an agreement for sale of immovable property, certain silent features which are common to all contract can be listed. They includes (a) identity of property, (b) consideration for sale, (c) mode of payment thereof, (d) timing of possession, (e) the period within which the contract must be concluded and (f) the consequences must ensure on account of noncompliance with the condition. While in a written contract, these conditions are by and large reflected with clarity and certainly, in an oral agreement they must be proved through reliable evidence.
34 An examination of the pleadings and the evidence placed on record shows that the case of the defendant are entirely based on oral evidence and not an iota of documents has been placed on record in order to ascertain the consensus ad idiom between the parties. A perusal of the counter claim and written statement further shows that essential components of an agreement are also missing. It has not been mentioned in the pleading as to in what manner the plaintiff offered to sell the flat in question and when the said offer was accepted. It has also not been mentioned that within how much period the said transaction was to be completed. The pleadings are also silent about the consequences if any if the parties fails to abide by the terms of the agreement. It is also relevant that in the entire pleading, the Suit no. 30/07 Page 23/51 defendants have not mentioned that they were ready and willing to perform their part of the obligation nor they confronted the plaintiff on this aspect.
35 Section 16 of the Specific Relief Act, 1963 which lays down that the person seeking specific performance of the contract must file the suit wherein he must aver and prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by them. The specific performance of the contract can not be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform the essential terms of the contract. Explanation [ii] clause C of Section 16 further makes it clear that plaintiff must aver performance of, readiness and willingness to perform, the contract according to its true construction. The compliance of the requirement of Section 16 (C) is mandatory, in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract, suit can not succeed. The first requirement is that they must aver and thereafter prove those averments.
36 In order to prove the existence of a concluded oral agreement as well as payment of sale consideration ,defendants have Suit no. 30/07 Page 24/51 examined various witnesses. The plaintiff has also led evidence on record to show that the possession of the suit property was handed over on license basis for limited period.
37 Plaintiff has contended that the possession of the suit property was handed over by him to defendant no:1&2 on 26012004 after performing Havan.
On the other hand Ld counsel for the defendants contended that the possession was handed over on 25012004 by the plaintiff after receiving the balance sale consideration of Rs 11 Lac in cash from defendants 38 In order to prove the above, defendant no:3 examined herself as DW1, during cross examination DW1 deposed that defendants took possession on 28012004. she admitted that plaintiff handed over the possession of the suit property on 26.01.2004. She again stated that the keys were handed over on 26.01.2004. Again said that the keys were handed over on 25.01.2004. DW2 during cross examination has stated that they took possession of the suit property on 28.01.2004. She volunteered that she obtained the keys of the suit property on 25.01.2004 and they brought they luggage and articles on Suit no. 30/07 Page 25/51 28.01.2004. DW8 deposed in crossexamination that the possession of the suit property was given to the defendant on 25.01.2004.
As per the plaintiff he entrusted the possession of the suit property to defendant no. 1& 2 on 26.01.2004. He reiterated the same in Para 4 of his examination in chief that "the havan pooja was performed by Pt. Ram Rattan, R/o 1094, SectorVII, R.K. Puram, New Delhi on 26.01.2004 at the suit premises where defendants were also invited as family members. After the Hawan he handed over the keys of the suit property to defendant no.1 Ms. Kamlesh Sharma permitting to live there in for a month only. While receiving the keys the defendants thanked his wife and him for timely help assuring to vacate the premises within a month, all in the presence of said Pt. Ram Rattan & other family members".
39 PW1 has been thoroughly crossexamined, however, his deposition made in Para 4 of his examination in chief has not been challenged by the defendants during his crossexamination. No suggestion whatsoever has been given to PW1 in order to contradict his testimony. Therefore defendants deemed to have admitted the fact that the possession of the suit property was handed over by the plaintiff on 26.01.2004 and not on 24.01.2004 or 25.01.2004. Suit no. 30/07 Page 26/51 40 Defendants have further taken a plea that they paid a sum of Rs. 30,000/ in cash to the plaintiff on 14.12.2003 at the residence of defendant no.3 and in night the plaintiff telephoned and requested for more amount for the renovation of the house. Ultimately, it was agreed that defendants would pay another sum of Rs. 70,000/ accordingly, a sum of Rs. 70,000/ in cash was paid to the plaintiff on 15.12.2003 by defendant no. 3 in her school in the presence of Sh. Pawan Bhatia. During crossexamination, defendant no. 3 who appeared as DW1 stated that no landline phone is installed in the suit property. She further stated that she has no evidence to show that plaintiff ever called her on telephone landline or mobile. The above testimony of defendant no. 3 falsify the plea of the plaintiff that plaintiff telephoned defendant no. 3 and requested for more amount. 41 Plaintiff examined himself as PW1. During cross examination, PW1 denied that defendant had paid for renovation and installation of iron gate. Except the above suggestion, the defendants have not carried out any crossexamination of PW1 qua the plea taken by them. The defendant has not at all been cross examined nor confronted PW1 qua the fact that they paid Rs. 30,000/ in cash to him on 14.12.2003. He was also not confronted that he called defendant no. 3 on telephone and demanding more money and ultimately on Suit no. 30/07 Page 27/51 15.12.2003 Rs. 70,000/ was given to him in the presence of Sh. Pawan Bhatia in the school of defendant no. 3. In the absence of any cross examination or confrontation of the plaintiff the plea taken by the defendants that they paid Rs. 30,000/ on 14.12.2003 and Rs. 70,000/ on 15.12.2003 to the plaintiff remained unproved and unsubstantiated.
42 Defendants have further taken a plea that defendant no. 1& 2 demanded keys of the suit property as they wanted to perform Hawan on 26.01.2004 but plaintiff insisted for the balance amount of Rs. 11 lacs before handing over the key. Accordingly, a sum of Rs. 11 lacs was paid in cash to the plaintiff by defendant on 25.1.2004 in the rented accommodation in the presence of Pawan Bhatia,Smt Asha and her husband Dalip. After receiving the cash amount of Rs. 11 lacs the plaintiff had promised that he would transfer the suit property in the name of defendant within few days. The above plea has been controverted by the plaintiff in his written statement to the counter claim.
43 In order to prove their plea, defendant examined themselves as DW1, DW2 & DW8. During crossexamination, DW1 stated that she has no documentary proof to show that the landlord Suit no. 30/07 Page 28/51 gave Rs. 12 lacs to them for vacating the tenanted premises. She further stated that she does not have any written agreement to sell regarding the suit property. She further stated that she has no documentary evidence to show that she ever possessed Rs. 12 lacs. She has no receipts with her showing any payment made by the defendants to the plaintiff. Almost similar statements have been made by DW2 & DW8 during their crossexamination.
44 In order to substantiate their plea, defendants also examined Sh. Pawan Bhatia as DW3. During crossexamination, DW3 stated that he is a manager in the nearby school at Nabi Karim which is a Senior Secondary School where defendant no. 3 has been working. He further stated that he was told by the defendants about the averments made in his affidavit. He has further stated that he has affinity with the family of the defendants since earlier as his father used to manage the school where the defendant no. 3 is working and now he is managing the school. He treat the defendants as his sisters and he has soft corners for the defendants.
45 Defendants also examined Smt Asha as DW4. During her crossexamination, she briefly stated that she never met Kailash Chand Saxena the said landlord. She does not have any proof to show that Suit no. 30/07 Page 29/51 landlord ever offered Rs. 12 lacs to the defendants for vacating the house on his request. She has not documentary proof to show that the plaintiff ever offered to sell the suit property to the defendants but the defendants told her about the same. She further stated that she has no written document to show that payment was made to the plaintiff by the defendants for the sale of suit property. She further stated that her sons call the defendants as Mausi.
46 Defendant also examined Sh. Dalip Singh as DW5. During crossexamination, DW5 briefly stated that the affidavit was got typed by defendant no. 3. He has not got the affidavit attested by himself. It was got attested by Madhu. He came to know about the facts of the case from Madhu. He further stated that he has no proof to show that the landlod of the house at Nabi Karim paid Rs. 12 lacs to the defendants. The landlord did not pay any amount to the defendants in his presence. He further stated that he has no proof to show that plaintiff ever offered to sell the house at Rohini to the defendants. He does not have any personal knowledge about the offer regarding the sale of a suit property. He further stated that he do not have any proof to show that the defendants ever paid any amount to the plaintiff for sale of suit property.
Suit no. 30/07 Page 30/51 47 Defendant also examined Sh. Ramesh Kumar as DW7. During crossexamination, DW7 briefly deposed that he does not know the name of the person who made telephonic call to defendant no. 1 on 25.01.2004 at 2:00 pm. He further stated that when he reached in the house of the defendant no. 1 he found there all the defendants and the plaintiff. He saw the last packet of the currency notes of Rs. 500/ denomination. He is not aware how many packets were already counted by the plaintiff before he reached in the house of the defendant no. 1.
48 In order to answer the plea of the defendants, plaintiff examined himself as PW1. During crossexamination, PW1 denied that he received a sum of Rs. 12 lacs from defendant no. 1 & 2 for selling the suit property to them. Except the above suggestion defendants have not carried out any cross examination of PW1 qua their plea. Defendant have not given any suggestion or carried out any crossexamination of PW1 to the effect that he insisted for the balance sale consideration of Rs 11 Lacs before handing over the keys of the house in question ,which was paid to him by the defendants on 25012004 in the rented accommodation in the presence of the above named persons. PW1 has not at all been confronted by the defendants with respect to the said plea during his crossexamination. In the Suit no. 30/07 Page 31/51 absence of any crossexamination or confrontation the above plea taken by the defendants remained unsubstantiated and unproved. 49 Defendants have taken a plea that they requested for the keys of the suit property for performing Hawan but the plaintiff refused and demanded the remaining sale consideration before handing over the keys of the suit property. When the plaintiff demanded the entire amount before handing over the keys then why the defendants did not insist for a formal written agreement to sell or at least for execution of a receipt for the said consideration paid by them in cash remained unexplained. No documents what soever has been placed on record which can remotely indicate the existence of any such transaction as pleaded by the defendants. Moreover, there are material contradiction in the pleading and the evidence led on record. In Para 19 of the counter claim and Para 11 of the written statement, defendants have mentioned that amount was paid on 24.10.2004. The defendant no. 1 made Police complaint Ex. DW1/3. In the said police complaint defendant has mentioned that she paid Rs. 12 lacs to the plaintiff on 26.01.2004. Whereas all the DWs during cross examination stated that it was paid on 25.01.2004. The above fact itself suggests that defendants themselves were not certain as to when the said amount was paid .
Suit no. 30/07 Page 32/51 50 Further examination of the pleading and the evidences led on record shows that defendants were paid Rs. 12 lacs by the landlord for vacating the tenanted premises. As per the defendant, the landlord initially paid Rs. 6 lacs on 08.11.2003 in the presence of Sh. D.R. Bhatia and the husband of defendant no. 3 and balance amount of Rs. 6 lacs was paid on 24.01.2004 in the presence of Pawan Bhatia, S/o Late Sh. D.R. Bhatia.
51 Sh. Pawan Bhatia has appeared as DW3, however, he has not averred a single word qua the fact that the landlord of defendants paid a sum of Rs. 6 lacs on 24.01.2004 in his presence during his examination in chief. As per the defendant they paid Rs. 11 lacs in cash to the plaintiff in the presence of Pawan Bhatia, husband of defendant no. 3, Smt Asha and her husband Dalip on 25.01.2004. The defendants have failed to justify the presence of all the persons at their residence on 25.01.2004. It is not the case of the defendants that they called these person to witness the said transaction. Defendants have failed to give any reason for the presence of the above person on a particular occasion at their house The DW3, Pawan Bhait has been residing at Rajauri Garden, New Delhi whereas DW4 & 5 have been residing at Saraswati Garden, New Delhi. None of the above witness have averred a word qua the fact that how and why they were present Suit no. 30/07 Page 33/51 at the house of defendant on 25.01.2004. The presence of all these witnesses at a place at one time is not at all natural and raised serious doubts about the varacity and truthfulness of their testimony. Moreover these witnesses are not the independent witnesses but closely known and associated with the defendants which is apparent from their testimony. During crossexamination, DW3 Pawan Bhatia himself admitted that he has affinity with the defendant and he treats defendants as his sister. He has further deposed that defendant no. 3 had told him about the averments made in his affidavit. He has further deposed that he has soft corners for the defendants. Similarly DW4 Smt. Asha has also deposed during her crossexamination that defendant told her about the same. she has no documentary proof to show that plaintiff ever offered to sell the suit property to the defendants She has further deposed that she did not know Kailash Chand Saxena and she also do not have any proof to show that the landlord ever offered Rs. 12 lacs to the defendant for vacating the house. similar statement has been given by her husband DW6 who deposed that he came to know about the facts of the case from Madhu, defendant no. 3. He further deposed that he has no proof to show that plaintiff ever offered to sell the house at Rohini to the defendants. He further deposed that he does not have any personal knowledge about the offer regarding the sale of the suit property. Therefore his Suit no. 30/07 Page 34/51 testimony is also of no use as same is not based on his personal knowledge but the information furnished by the defendant. 52 An examination of the testimony of all the DW's clearly shows that their testimony is based on hearsay evidence and not on the basis of their personal knowledge. DW3,4 and 5 categorically admitted that they were told by the defendant about the fact that the plaintiff offered to sell the suit property to them . Their testimony is not based on their personal knowledge but on the information furnished by the defendants.Therefore same can not be taken into consideration 53 The substance of the case of the defendants is that they received Rs. 12 lacs from their landlord for vacating the tenanted premises and the amount, so received by them, was paid to the plaintiff as a sale consideration of the suit property. The plaintiff has controverted the same in the written statement to the counter claim 54 The plaintiff has examined the landlord of the defendant, Sh. K. C. Saxena as PW3 who denied in his examination in chief that he paid any amount to the defendants for vacating the rented premises. During crossexamination, PW3 stated that he never had any talks or negotiations for vacation of the tenanted premises with the defendants. Suit no. 30/07 Page 35/51 He further stated that he sold the property for Rs. 1,75 lacs to Sh. Jagdish Rai Taneja and his son Sh. Ashish Rai Taneja. He also denied that he had paid a sum of Rs. 12 lacs in cash to the defendants on various occasions.
55 PW 3 has been throughly cross examined, however defendants have not carried out any cross examination of pw3 nor he was confronted qua the fact that he paid Rs 12 lacs to defendants in lieu of relinquishing their tenancy right. Pw3 has also not been cross examined to the effect that Out of that amount a sum of Rs 6 lacs was paid by him to the defendants on 8112004 in the presence of Sh:D.R Bhatia and the husband of defendant No;3 whereas remaining amount of Rs 6 lacs was paid on 24012004 in the presence of Sh: pawan Bhatia, Smt Asha and her husband Dalip . In the absence of any cross examination or confrontation of Pw3 qua the above facts , the plea of the defendant that their land lord paid them Rs 12 lacs for vacating the tenanted premises in the presence of the witnesses remained unsubstantiated and unproved .
56 PW3 made categorical statement that he had not paid any amount to the defendant for getting the tenanted premises vacated moreover, it can not be accepted that the person would have paid Rs. Suit no. 30/07 Page 36/51 12 lacs to get the premises vacated which he had sold for a sale consideration of Rs. 1,75,000/ only. The testimony of PW3 thus proves the falsification of defendants case that they received Rs. 12 lacs from the landlord and paid the same to the plaintiff as sale consideration of the suit property.
57 Defendants have also taken a plea that they visited the house of the plaintiff on 14.03.2004 requesting him to execute the sale deed in their favour but he misbehaved with them. Even thereafter, the defendants have not taken any step against the plaintiff nor given any notice to him for execution of the sale deed. On the other hand plaintiff served a notice dated 08.07.2004 Ex. PW1/D upon the defendants. Vide said notice, the plaintiff called upon the defendants to vacate the flat within one month. The above notice was duly served upon the defendants but they did not give any reply. The defendants have taken a plea that they had gone to the college of the plaintiff with the said legal notice on 16.07.2004 and the plaintiff had torn the said notice. plaintiff has placed on record a letter dated 28.07.2007 written by the Postal Authority alongwith notice Ex. PW1/D. A perusal of the said letter shows that Ex. PW1/D was delivered to the defendant on 17.07.2004. Once the notice Ex. PW1/D was itself delivered to the defendants on 17.07.2007 then how the defendants had taken the said Suit no. 30/07 Page 37/51 notice in the college of the plaintiff on 16.07.2004 remained unexplained. Even after the service of the notice Ex. PW1/D, defendants had neither replied the same nor taken any action against the plaintiff. Finally the plaintiff served legal notice dated 05.12.2006 Ex. PW1/E which was also duly served upon the defendants. Vide this legal notice the defendants were called upon to vacate the suit premises within 15 days despite the service of the legal notice, the defendants has not made any reply to the same nor taken any action against the plaintiff.
The Hon'ble Delhi High Court in Kalu Ram Vs. Sita Ram reported as1980 RLR (N) 44 has held that " if plaintiff before filling suit makes assertion in a notice to defendant then defendant must not remain silent by ignoring to reply. If he does so then an adverse inference may be drawn against him".
58 In the instant case plaintiff served notice Ex. PW1/D and Ex. PW1/E upon defendants making serious assertion against them and called upon them to vacate the suit premises. These notice were duly served upon the defendant, however, despite the service of the legal notice they failed to reply the same nor complied the same. Thus Suit no. 30/07 Page 38/51 deemed to have been admitted the content of the notice.
In view of the above facts and circumstances, My issue wise findings is as under: 59 Issue No. 1 Whether there is any cause of action with the plaintiff to file the suit? OPD The defendants have failed to prove on record that plaintiff did not have any cause of action for filing of the present suit. On the other hand plaintiff has successfully proved that he has cause of action for filing the suit for possession against the defendant. Defendants have failed to discharge the onus of Issue no. 1, same is accordingly decided against them.
60 Issue No. 3 Whether the plaintiff is entitled to recover the possession of the suit property bearing Flat No. 271, 3rd Floor, Pocket2, Sector23, Rohini, Delhi? OPP The plaintiff has successfully proved on record that he is the owner of the suit premises. He has further proved that he entrusted the possession of the suit property to the defendant on 26.01.2004 as a licencee but they failed to vacate the suit premises. The licnece granted to the defendants was terminated vide legal notice Ex. PW1/D & Suit no. 30/07 Page 39/51 PW1/E which were duly served upon the defendant, however, defendant failed to handover the possession of the suit premises. Thus made themselves liable for the decree. The plaintiff has successfully discharge the onus of issue no. 3, same is accordingly decided in favour of the plaintiff.
61 Issue No. 7 Whether the defendants had paid a sum of Rs. 12 lacs tothe plaintiff as consideration for the sale of the suit property bearing Flat No. 272, 3rd Floor, Pocket2, Sector23, Rohini, Delhi? OPD The defendant has failed to produce any material on record which can show or suggest that they have received Rs. 12 lacs from the landlord in lieu of vacating the tenanted premises. The defendant have further failed to prove that they paid Rs. 12 lacs to the plaintiff at any point of time. The defendants have thus failed to discharge the onus of Issue no. 7, same is accordingly decided against the defendant.
62 Issue No. 9 Whether the defendants are entitled to a decree of specific performance against the plaintiff for execution of the sale deed of suit property? OPD The defendant have failed to prove on record that the plaintiff ever offered to sell the suit property to them,. They have Suit no. 30/07 Page 40/51 further failed to prove that they paid any amount to the plaintiff as a sale consideration for purchasing the suit property. The defendant have also failed to aver and prove that they were ready and willing to perform their part of the obligation. Defendants have failed to prove that any oral agreement was ever arrived at between the parties and that there was any consensus adidem between the parties for a concluded agreement to sell for the immovable property. The defendants have failed to discharge the onus of Issue no. 9, same is accordingly decided against the defendant.
63 Issue No. 2 Whether the plaintiff has properly valued the suit for the purpose of court fees and jurisdiction?
OPD The onus to prove issue no. 2 is upon the defendants. The defendants in Para 4 of the preliminary objection of the written statement has mentioned that the suit is not maintainable as the plaintiff has under valued the suit property and has not paid the proper court fees. It is further alleged that the plaintiff took a sum of Rs. 12 lacs from the defendants for transferring the suit in their name as such liable to value the suit at Rs. 12 lacs minimum for the purpose of court fees. The plaintiff controverted the said fact in the replication. The plaintiff has valued the suit for the purpose of court fees and Suit no. 30/07 Page 41/51 jurisdiction for the purpose of mesne profit @ Rs. 60,000/ and for the purpose of possession @ Rs. 8,00,000/ as mentioned in Para 24 & 25 of the plaint.
While deciding issue no. 7& 9, I have already held that the defendants have failed to prove on record that they ever paid Rs. 12 lacs to the plaintiff. The defendants have not placed any material on record on the basis of which it can be assumed that the value of the suit property is Rs. 12 lacs or more. The plaintiff has purchased the property from the DDA vide conveyance deed Ex. PW1/B for a sum of Rs. 6,79,276/. In order to prove his case, plaintiff examined himself PW1, however, no suggestion whatsoever has been given by the defendants to PW1 qua the said fact that he has not valued the suit properly for the purpose of court fees and jurisdiction. Moreover, defendant has not placed any material on record on the basis of which it can be said that the plaintiff has not properly valued the suit property for the purpose of court fees.
In view of the above facts and circumstances, I am of the considered view that the defendant has failed to prove on record that plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. The defendant has failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant. Suit no. 30/07 Page 42/51 64 Issue No. 4 Whether the plaintiff is entitled to claim mesne profit at the rate of Rs. 5000/ p.m from the defendants from the date of wrongful possession to the delivery of the possession? OPP Issue No. 5 Whether the plaintiff is entitled to claim interest, if so, at what rate and for what period? OPP The onus to prove issue no. 4 & 5 is upon the plaintiff. In the plaint, the plaintiff has claimed mesne profit @ 5,000/ per month, however, during the pendency of the suit on 26.04.2011. The plaintiff given statement that he does not want to press relief of mesne profit as he is not able to produce evidence to that effect. He has further stated that the suit with respect to the mesne profit may be dismissed as not pressed. In view of the statement of the plaintiff, suit of the plaintiff with respect to the mesne profit was dismissed as not pressed vide order dated 26.04.2011. Accordingly issue no. 4 & 5 are decided against the plaintiff.
65 Issue No. 6 Whether the counter claim dated
09.03.2007 is barred by law of limitation?
OPP The onus to prove issue no. 6 is upon the plaintiff. The plaintiff in the written statement to the counter claim has taken a plea Suit no. 30/07 Page 43/51 that the counter claim is barred by limitation. He has further alleged that limitation period for the suit for specific performance is 3 years from the date of cause of action first arose, whereas as per the defendants own admission, the alleged cause of action first arose on 24.01.2004 as mentioned in Para 19, Page 16 of the counter claim. Therefore the limitation for filing the specific performance in the form of counter claim expired on 24.01.2007. The defendants have controverted the said plea in the replication to the counter claim.
The suit for specific performance can be filed within three years from the date fixed for performance of the contract and if no such date is fixed when the plaintiff has notice that performance is refused as provided under Article 54 of the Limitation Act, 1963. In the instant case, as per the defendants the alleged oral agreement came into being somewhere in January 2004, however, no date for execution of the sale deed was fixed. The defendants have further averred in the counter claim that they approached the plaintiff on 14.03.2004 with the request to execute the sale deed in their favour, however, he mis behaved with them and the Police was called, but immediately he changed his colour and assured that he would transfer the ownership of the suit property in the name of the defendants, but, subsequently he issued notice Ex. PW1/D dated 08.07.2004. The defendants thus came Suit no. 30/07 Page 44/51 to know about the fact that the plaintiff has changed his intention and refused to execute necessary sale documents after the receipt of the legal notice Ex. PW1/D. From the perusal of the above at best it can be said that defendants came to know about the intention of the plaintiff on 14.03.2004 when he misbehaved with them. Therefore they got cause of action for filing of the present suit for specific performance w.e.f 14.03.2004 . The suit for specific performance can be filed within 3 years from the date of refusal.. The present counter claim has been filed on 09.03.2007 i.e within three years from 14.03.2004, same is therefore within the period of limitation. The plaintiff has thus failed to discharge the onus of issue no. 6, same is accordingly decided against the plaintiff.
66 Issue No. 8 Whether the defendants are put in possession of the suit property as part performance of an agreement? OPD The onus to prove issue no. 8 is upon the defendants. The defendants have taken a plea that they were handed over the possession of the suit property in part performance of an agreement to sell which was executed between the plaintiff and the defendants. The said plea has been controverted by the plaintiff who has taken a plea that the possession of the suit property was entrusted to the defendant Suit no. 30/07 Page 45/51 as a licnencee for one month.
Section 53 A of Transfer of Property Act speaks about the doctrine of part performance it provides that "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 the possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract 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 he is entitle to protect his possession in respect of the property of which he was put in possession in part performance of the agreement to sell".
The Hon'ble Supreme Court of India in Nathulal Vs. Phool Chand reported as AIR 1969, Supreme Court 446 while interpreting section 53A called out following condition to be fulfilled for making out the defence of part performance to an action in ejectiment by the owner as under: (1) The transferor has contracted to transfer for consideration Suit no. 30/07 Page 46/51 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. (2) That the transferee has in part performance of the contract, taken the possession of the property or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract.
(3) That the transferee has done some act in furtherance of the contract (4) That the transferee has performed or is willing to perform his part of the contract.
Thus for seeking protection from the ejectment against the owner the transferee is required to show that there exists a written contract in pursuance of which the possession was handed over to them. The Hon'ble Supreme Court of India in Sardar Govindrao Mahadik Vs. Devi Sahai reported as AIR 1982, S.C, 989 has held that "To qualify for the protection of part performance it must be shown that there is agreement to transfer of immovable property for consideration and the contract is evidenced by writing, signed by person to be bound by it and from which the terms necessary to Suit no. 30/07 Page 47/51 constitute, the transfer can be ascertained with reasonable certainty". 67 In the instant case, it is the admitted case that there exists no written agreement with regard to the transfer of the possession of the suit property to the defendants. While deciding issue no. 1 & 9, I have already held that the defendants have even failed to prove on record that plaintiff ever offered to sell the suit property even orally to the defendant for consideration at any point of time. The defendants have thus failed to prove adidem between the plaintiff and defendants with regard to the sale of the immovable property.
Taking into consideration the facts and circumstances, I am of the considered view that the defendants have failed to prove on record that they were put in possession of the suit property in pursuance of the part performance of any agreement to sell. The defendants have failed to discharge the onus of issue no. 8, same is accordingly decided against the defendants.
68 Ld. Counsel for the defendants contended that plaintiff' has not filed the plaint in duplicate which is the requirement of the law therefore the plaint is liable to be rejected on this ground alone. He further contended that plaint has not been verified as per the law Suit no. 30/07 Page 48/51 therefore the suit has not been property instituted. 69 On the other hand plaintiff has contended that he filed the plaint in duplicate in the registry. He further contended that the defendant has not mentioned a word in the entire written statement regarding the fact that the plaint has not been filed in duplicate. He further contended that he has filed the affidavit alongwith the plaint in Para 2 of the affidavit. he has verified the content of the plaint. 70 I have heard both the parties carefully and perused the plaint, written, statement, evidence and other material placed on record. Perusal of the record shows that the present suit was instituted by the plaintiff on 02.02.2007. It was checked and registered under the order of Ld. Predecessors of this Court and thereafter summons were issued to the defendants who appeared and file their written statement. In the entire written statement, defendants have not taken any such plea that the plaint has not been filed in duplicate or not properly verified nor the defendants confronted PW1 during his cross examination with regard to the said plea. The defendants have thus deemed to have waived the said plea.
71 This plea raised by ld counsel for the defendants is a plea Suit no. 30/07 Page 49/51 conspicuous by its absence in the written statement and has been taken only at the stage of final argument . The new ground of claim without any such pleading is wholly impermissible .The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. It is well settled law no proceeding in the court of law should be defeated on mere technicalities. if a plaint is not properly signed or verified but is admitted and entered in the register of suits it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint. 72 It is well settled law that procedural irregularities should not be allowed to come in the way of substantial justice. It would be unfair and unjust to reject the plaint at this stage merely on the ground that the plaint has not been filed in duplicate and has not properly verified as plaintiff himself appeared in the witness box and made out the case in the plaint. Moreover, the defendants have not raised any objection regarding non filing of duplicate set of the plaint and its verification in the written statement. Therefore they deemed to have waived the said objection and same can not be allowed to be taken at Suit no. 30/07 Page 50/51 this stage.
In view of the facts and circumstances, I find no force in the contention of Ld. Counsel for the defendants , same is accordingly rejected.
Relief In view of the above, suit filed by the plaintiff for recovery of possession is decreed whereas the suit for mesne profit / damages is dismissed. The counter claim filed by the defendants against the plaintiff is also dismissed.
A Decree for possession is passed in favour of the plaintiff and against the defendants with respect to the suit property bearing No. 271, 3rd Floor, Pocket2, Sector23, Rohini, Delhi110085. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
th
20 May 2011 Additional District Judge
Delhi
Suit no. 30/07 Page 51/51
Suit no. 30/07 Page 52/51