Delhi District Court
Akhlaq Ahmed vs Mohd Tariq on 1 April, 2024
IN THE COURT OF MS. CHARU ASIWAL,
CIVIL JUDGE-03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
Suit No. 669/23
In the matter of:-
AKHLAQ AHMED
S/o Late Sh. Basheer Ahmed,
R/o H. No. 93A, Okhla Village,
Jamia Nagar, New Delhi - 110025 ...Plaintiff
Vs.
MOHD. TARIQ
S/o Late Mohd. Shahshad,
R/o H. No. 326/E, Main Road,
Okhla Village, Jamia Nagar,
New Delhi - 110025 ...Defendant
Date of institution of Suit : 24.04.2023
Date on which Judgment was reserved : Not Reserved
Date of pronouncement of the Judgment : 01.04.2024
EX- PARTE JUDGMENT
1.The plaintiff has instituted the present suit against the defendant for permanent and mandatory injunction.
2. It is the case of the plaintiff that the plaintiff purchased the property bearing no. 93A, Upper Ground Floor, situated near at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025 by way of GPA, Agreement to sell, affidavit, possession letter and Will all dated 01.08.2022, CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 1 of 9 wherein plaintiff has filed the present suit claiming that the aforementioned property was purchased from the defendant on 01.08.2022 against consideration of Rs. 17,00,000/-, however, despite repeated requests and issuance of legal notice dated 15.10.2022, defendant has failed to provide the previous chain of title documents of the property, neither did he filed reply to the notice. As per the plaint, the previous chain of documents are as under:-
Sr. Purchaser Seller GPA, Agreement to Sell No. and Will dated.
1. Defendant Mohd. Hanif 20.07.2022
2. Mohd. Hanif Defendant 25.06.2018
3. Defendant Mohd. Salim 24.11.2017
3. It is averred by the plaintiff that at the time of sale on 01.08.2022, defendant had only provided him photocopy of the above previous chain with an undertaking that the same shall be provided in original to the plaintiff within a short span of time, however, he did not provide the original of these documents. It is also averred that on one of the occasions, when plaintiff asked for the aforementioned documents, defendant threatened the plaintiff with dire consequences. Therefore, plaintiff apprehends that the previous original chain of title documents shall be misused by the defendant, which shall cause serious injury to the rights of the plaintiff. It is with these averments that the CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 2 of 9 instant suit has been filed, claiming following reliefs:-
a. Pass a decree of mandatory injunction in favor of the plaintiff and against the defendant whereby directing the defendant to hand over the original chain of documents i.e. (1) GPA, agreement to sell, will etc. dated 24.11.2017 executed between Mr.Mohd. Salim and the defendant (2) GPA, agreement to sell, will etc. dated 25.06.2018 executed between the defendant and Mr. Mohd. Hanif (3) GPA, agreement to sell, will etc. dated 20.07.2022 executed between Mohd Hanif and the defendant in respect of the suit property i.e. 93A, Upper Ground Floor, situated near at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi-110025, to the plaintiff. b. Pass a decree of permanent injunction in favor of the plaintiff and against the defendant whereby restraining the defendant, his associates, assignees to create any third party interest over the suit property and also restraining the defendant not to use those original chain on documents of the suit property and also restraining the defendants, his associates, assignees to create any disturbance in the peaceful possession of the plaintiff over the suit property, c. Award of the cost of the present suit in favour of the plaintiff and against the defendant;
4. Thereafter, summons of the suit were sent, which stood served upon the defendant by way of service. Defendants failed to appear after 13.10.2023 and contest the present suit. Accordingly, the proceedings against the defendant was set ex-parte vide order dated 14.02.2024.
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5. Thereafter, ex-parte plaintiff's evidence was led.
6. To prove its case, plaintiff examined its AR as PW-1 as the witness who tendered his evidence by way of affidavit Ex.PW1/1 and relied upon the following documents:-
(i) Photographs of the suit property are exhibited as Ex.PW1/A(Colly.), which is now de-exihibited and marked as PW1/Mark E(Colly.). Running into seven pages.
(ii) GPA dated 01.08.2022, agreement to sell dated 01.08.2022, Receipt dated 01.08.2022, Possession letter dated 01.08.2022 and Will dated 01.08.2022 are exhibited as Ex.PW1/B(OSR) (Colly.),Affidavit dated 01.08.2022 is now de-exhibited and marked as PW1/Mark F. Running into fifteen pages.
(iii) Site plan is exhibited as Ex.PW1/C.
(iv) GPA dated 24.11.2017, agreement to sell dated 24.11.2017, Affidavit dated 24.11.2017, Receipt dated 24.11.2017, Possession letter dated 24.11.2017 and Will dated 24.11.2017 are marked as PW1/Mark A(Colly.). Running into seventeen pages.
(v) GPA dated 25.06.2018, agreement to sell dated 25.06.2018, Affidavit dated 25.06.2018, Receipt dated 25.06.2018, Possession letter dated 25.06.2018 and Will dated 25.06.2018 are marked as PW1/Mark B(Colly.). Running into fourteen pages.
(vi) GPA dated 20.07.2022, agreement to sell dated 20.07.2022, Affidavit dated 20.07.2022, Receipt dated 20.07.2022, Possession letter dated 20.07.2022 and Will dated 20.07.2022 are marked as PW1/Mark C(Colly.). Running into fifteen pages.
(vii) Legal Notice dated 15.10.2022 is marked as PW1/Mark D, which is now de-marked and exhibited as Ex.PW1/G.
(viii) Aadhar Card of plaintiff is exhibited as Ex.PW1/D(OSR).
(ix) Postal receipt of legal notice is exhibited as Ex.PW1/E. CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 4 of 9
7. Since none appeared for the defendant when the plaintiff was to be examined, the evidence was recorded ex-parte.
Thereafter, plaintiff closed its ex-parte evidence on 14.02.2024, and the matter was posted for ex-parte final arguments.
8. Heard the ex-parte final arguments advanced by counsel for plaintiff. This court has carefully perused the evidence on record in light of the pleadings of the plaintiff and considered the oral submissions of Ld. counsel for plaintiff.
9. In the present case, plaintiff has sought a relief of mandatory injunction, while seeking the custody of the aforementioned titled documents. For seeking a relief of mandatory injunction under Section 39 of Specific Relief Act, the plaintiff is duty bound to prove the following elements:-
a. An obligation in favour of the plaintiff.
b. Breach of that obligation. 10. In the instant case, plaintiff has by way of
Ex.PW1/B(Colly.), which is General Power of Attorney, Agreement to Sell, Receipt, Possession Letter, Will all dated 01.08.2022 has shown that he has purchased property bearing no. 93A, Upper Ground Floor, situated near at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025 from the defendant. Therefore, CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 5 of 9 plaintiff has shown a better title as against the defendant. Furthermore, plaintiff has also filed his Aadhar Card(Ex.PW1/D) to show that he is also in possession of the property bearing no. 93A, Upper Ground Floor, situated near at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025.
11. Further, plaintiff has also relied on Ex.PW1/Mark A(Colly.), which are copy of documents dated 24.11.2017, Ex.PW1/Mark B(Colly.), which are copy of title documents dated 25.06.2018 and Ex.PW1/Mark C(Colly.), which are copy of documents dated 20.07.2022. Copy of these documents are treated as secondary evidence as it is the entire case of the plaintiff that the originals are in the custody of the defendant. Since, plaintiff has filed copy of these documents, it lend credence to the case of the plaintiff that only copy of these documents were delivered to him at the time of the sale of the property.
12. Furthermore, upon perusal of Ex.PW1/B(Colly.) i.e. the title document in favour of the plaintiff, it is found that the said documents also speak of previous chain of title documents dated 24.11.2017, 25.06.2018 and 20.07.2022, therefore, the existence of these documents also stand fortified. Therefore, on the basis of preponderance of probability, it is found that there exist an obligation in favour of the plaintiff to retain the custody of the previous chain of title documents. Furthermore, the entire chain of CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 6 of 9 titles clearly indicate that the plaintiff should be the rightful holder of these documents and the documents should have been handed over to him at the time when the sale was carried out between the parties on 01.08.2022. In addition, defendant did not refute that the previous chain of title documents have not been delivered to plaintiff as he has not appeared to contest the case. Therefore, it is not out of place to presume that the documents were never delivered to the plaintiff and therefore, it also stands proved that there is also a breach of obligation in favour of plaintiff.
13. As observed above that defendant has not presented himself to refute the claim of the plaintiff and accordingly, the testimony of the plaintiff has gone unrebutted and the defendant cannot be allowed to misuse the said chain of title documents illegally or unauthorizedly. There is nothing on record to disbelieve the version of the plaintiff.
Reliance can be placed upon the judgment of Hon'ble High Court of Delhi in M/s Eco Lab I.MC.N Vs. Eco Labs Limited, 2011 (185) DLT 664, wherein it was held that if defendant has failed to cross examine the plaintiff, the evidence of plaintiff is to be presumed to be correct. In view of the fact that the version of the plaintiff has remained unrebutted, whatever he has produced on record is accepted as correct. Therefore, the plaintiff is entitled to the relief claimed.
CS SCJ No 669/23 AKHLAQ AHMED Vs. MOHD. TARIQ PAGE 7 of 9 Relief
14. In view of the foregoing reasons, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is held entitled to the relief claimed and thus, defendant is directed to hand over the following original documents to the plaintiff:-
Sr. No. Name of the document Date of the
document
1. GPA, agreement to sell Will executed 24.11.2017 between Mr. Mohd. Salim and defendant pertaining to property bearing no. 93A, Upper Ground Floor, situated at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025.
2. GPA, agreement to sell Will executed 25.06.2018 between defendant and Mr. Hanif pertaining to property bearing no. 93A, Upper Ground Floor, situated at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025.
3. GPA, agreement to sell Will executed 20.07.2022 between Mr. Mohd. Hanif and defendant pertaining to property bearing no. 93A, Upper Ground Floor, situated at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025.
15. Further, defendant, his associates, assignees are restrained from creating any third party interest and to create any disturbance in the peaceful possession of the plaintiff over the property bearing no. 93A, Upper Ground Floor, situated near at Chhappar Wali Masjid, Okhla Village, Jamia Nagar, New Delhi - 110025 and not to use original chain documents of the property.
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16. Costs of the suit is also awarded in favour of the plaintiff.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record-Room after due compliance.
Pronounced in the open (Charu Asiwal)
Court on 01.04.2024 Civil Judge-03, South East,
Saket Court, New Delhi.
01.04.2024
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