Delhi District Court
Sh. Hitender Singh vs Smt. Kavita on 3 June, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No.2152/2018 (1241 / 2018)
In the matter of:
Sh. Hitender Singh
S/o Sh. Jai Singh
R/o RZ70, A Block,
Gopal Nagar, Najafgarh,
New Delhi 110 043
........plaintiff
VERSUS
1. Smt. Kavita
W/o Sh. Karamveer
2. Sh. Karamveer
S/o Sh. Dharambir
Both R/o B5/14,
Gopal Nagar, Dhansa Road,
Najafgarh, New Delhi 110 043
........ defendants
Date of institution of Suit : 13.12.2018
Date of reserving judgment : 02.06.2022
Date of pronouncement : 03.06.2022
CS No. 2152/2018 (1241/2018)
Hitender Singh v. Kavita & Ors.
Page no.1 of 15
Appearance:
(i) Sh. Vikram Singh Panwar, Advocate, Ld. Counsel for plaintiff
(ii) Sh. H.K. Panda, Advocate, Ld. counsel for defendant
SUIT FOR POSSESSION AND PERMANENT INJUNCTION
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendants seeking 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 as under:
(i) It is averred that defendant no.1 is the wife of the defendant no.2 and plaintiff is known to the defendants.
(ii) It is averred that the mother of the defendant no. 2 Smt. Santra Devi (in short, the mother) had purchased the property bearing Plot no.5 and 14, G Block, total area measuring 500 sq. yds., consisted of five rooms set up on the said land out of Khasra no.51/21/2/2 situated in the revenue estate of village Mitraon Delhi State abadi known as Gopal Nagar, Najafgarh, New Delhi110043 (in short, the said land) from Shri Naresh Kumar and in this regard a Sale Deed was executed between Sh. Naresh Kumar and the mother. Thereafter, Sh.Naresh kumar handed over the vacant and peaceful possession of the suit property to the mother.
CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.2 of 15
(iii) It is averred that the mother had executed a registered Gift Deed dated 19.07.2008 regarding the built up property No.5 and 14, (i.e. property no. 5/1 & 14/1, area measuring 300 sq. yds., out of total area measuring 500 sq. yds., out of Khasra No. 51/21/2/2, situated in the Revenue Estate of Village Mitraon, colony known as Gopal Nagar, Najafgarh, New Delhi110043), i.e. the said property in favour of defendant no.1. The mother has handed over the physical vacant possession of the said property to the donee i.e. defendant no.1. The defendant no. 1 after execution of Gift Deed in her favour became absolute owner of the portion of the suit land i.e. the said property.
(iv) It is averred that plaintiff had purchased the built up property from defendant no.1 for a total sum of Rs.20,00,000/ (Rupees Twenty Lakhs Only) i.e. property bearing plot No. 5.1A & 14A/A, area measuring 62.5 sq. yds., having its size 15' X 37' 6" ( out of total area situated in the revenue estate of Village Mitraon, Delhi State, Delhi abadi known as 'Gopal Nagar' GBlock, Najafgarh, New Delhi110043 (hereinafter called the "Suit Property") from defendant no. 1. The defendant no.1 had executed the relevant document i.e. General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter, Indemnity Bond, Special Power of Attorney, Affidavit, WILL all dated 04.11.2018. The defendant no. 1 was also handed over the previous chain of the sale documents of the suit property to plaintiff. That after execution the sale documents by the defendant no. 1 in CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.3 of 15 favour of the plaintiff, the plaintiff became the absolute owner of the suit property. Both the parties physically visited the suit property and the demarcation (Nishandehi) was done by the defendants of the suit property in the presence of plaintiff.
(v) It is averred that defendants, after executing the sale documents, defendant nos.1 and 2 requested plaintiff that they are residing in the suit property and they will shift their household articles in the other portions of their property within 10 days and, thereafter, defendants will vacate the suit property and hand over the vacant physical possession of the suit property to plaintiff. The plaintiff accepted the request of defendants.
(vi) It is averred that plaintiff on 16.11.2018, after expiry of 10 days, approached defendants to vacate the suit property, but defendants quarreled with plaintiff, and defendant no.1 misbehaved, abused and also threatened plaintiff to kill him, if plaintiff asked them to vacate the suit property.
(vii) It is averred that plaintiff on 17.11.2018, again visited the suit property and requested defendants to vacate the suit property, then defendant nos.1 and 2 raised hot arguments with plaintiff, and defendant no. 1, threatened to implicate plaintiff in some false case. The defendant no. 2 also threatened to eliminate plaintiff. In the CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.4 of 15 meanwhile, someone had called the 100 number, the police came at the spot and persuaded both the parties. The plaintiff who also informed that this is the matter of civil nature and plaintiff should approach the Court.
(viii) That, plaintiff on the same day i.e. 17.11.2018, had given a written complaint to the police officials of P.S. Baba Hari Das Nagar, New Delhi which was registered as DD No.37B dated 17.11.2018, but the police has not taken any legal action against the defendants.
(ix) It is averred that on 26.11.2018, defendant no.2 had moved the anticipatory bail before the District and Session Judge, Dwarka Courts, New Delhi and the Court had given the three days pre arrest notice to the defendant no. 2, the defendant no. 2, on the same day, met the plaintiff outside the court room and also threatened plaintiff that defendant no. 2 will further sold out the suit property to any other person and will hand over the possession of the suit property to third person with the help of the defendant no. 1.
(x) It is averred that on 02.12.2018 when plaintiff visited suit property, he had seen that 34 persons present, who were talking with the defendants regarding their having interest in purchasing the suit property, but due to the intervention of the plaintiff, the defendants could not succeed in their illegal design or motive to sell the suit property to any third person.
CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.5 of 15
(xi) It is averred that plaintiff has potential apprehension from the defendants that the defendants in collusion with their associates can sell, dispose or alienate the suit property to any third party or create third party interest in the suit property which may cause irreparable loss and injury to the plaintiff which cannot be compensated in terms of money. It is averred that plaintiff has no efficacious remedy except to file the suit for possession, permanent injunction and damages against the defendants.
3. After filing of the suit, summons for settlement of issues was issued to the defendant. Pursuant to service of summons, defendants appeared and filed written statement, wherein the contents of the plaint were denied. It is submitted that plaintiff has concealed the true, material and relevant facts and has not come with clean hands. The plaintiff is guilty of concealment, misstatement and misrepresentation of true and correct facts. Thus the suit is liable to be rejected as it is an abuse of process of law and plaintiff is misleading this court.
4. It is submitted that the plaintiff is trying to misguide and misrepresented the facts before this court by way of filing the present suit on the basis of false and fictitious facts and want to take undue advantage of his own wrongs with malafide intention, ulterior motive, hence the suit is liable of be dismissed.
CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.6 of 15
5. It is submitted that as per the oral agreement between the parties, it was agreed that suit property would be sold by the defendant no. 1 to the plaintiff for the sale consideration of Rs.35,00,000/ (Rupees Thirty Five Lacs Only) i.e. the market price of the suit property measuring 62.5 sq. Yds. It was further agreed between the parties that out of the aforementioned amount of Rs. 35,00,000/, the transaction would be Rs. 20,00,000/ and the remaining amounts of Rs. 15,00,000/ would be paid in cash by the plaintiff to the defendants. However, the sale consideration amount of the suit property would be mentioned as Rs. 20,00,000/ in the sale documents.
6. It is averred that to the utter shock and agony of the defendants, the plaintiff paid only Rs. 15,50,000/ and claiming to have paid Rs. 20 lakhs on total sale consideration. The amount paid by plaintiff is as under :
a) Rs. 1.5 lakhs in cash on 14.07.2018, b) Rs.1,50,000/ through IMPS Ref. No. 592141209 dated
16.07.2018 drawn on AXIS Bank, Najafgarh, New Delhi,
c) Rs. 3,00,00/ through NEFT UTR No. SBIN318197475790, dated 16.07.2018 drawn on SBI,
d) Rs. 7,00,000/ through RTGS by Cheque No. 087145 dated 17.07.2018 drawn on Central Bank of India,
e) Rs.1,50,000/ through IMPS Ref. No. 597670114 dated 08.08.2018 drawn on AXIS Bank, Najafgarh,
f) Rs. 25,000/ through IMPS Ref. No. 608879972 dated 27.09.2018 drawn on AXIS Bank, Najafgarh, New Delhi, and
g) Rs. 75,000/ through IMPS Ref No. 614136658 dated 18.10.2018 drawn on AXIS Bank, Najafgarh, New Delhi.
CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.7 of 15 The plaintiff has not paid Rs. 20,00,000/ to the defendant as alleged.
7. It is further submitted that the plaintiff without paying the total sale consideration of Rs. 35,00,000/ attempted to take the possession of the suit property forcibly. When the Defendant resisted the same, plaintiff being a powerful and local man threatened defendants with dire consequences. The plaintiff along with his muscle men cowed down the defendants and used all the pressure tactics to compel defendant no. 1 to sign on some documents. The defendants succumbed to the pressure tactics and threat of the plaintiff and signed on some documents relating to the transfer of the suit property. The amount of Rs. 4,50,000/ in cash being paid to the defendant no. 1 as mentioned in the receipt and agreement to sale is a false averment by plaintiff.
8. It is submitted that plaintiff on 16.11.2018, without paying the total sale consideration amount attempted to forcibly dispossess the defendants from the suit property and further attempted to take forcibly possession of the suit property. The defendants objected to the same and did not allow the plaintiff to take the possession of the suit property without paying the total sale consideration amount.
9. It is submitted that defendants are in no hurry to sale or create third party interest in the suit property and defendants have no issue in selling the suit property to the plaintiff, if plaintiff is ready to pay CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.8 of 15 the total sale consideration amount of Rs. 35,00,000/ to defendants.
10. It is submitted that the suit is not properly valued as a market price of the suit property is around Rs. 35,00,000/ to Rs. 40,00,000/, therefore, proper court fee is not affixed on the plaint.
11. plaintiff filed replication to the written statement of defendant thereby, denying all the allegations and has reiterated the contents of plaint.
12. On the basis of pleadings of the parties, following issues were framed on 20.04.2019:
1. Whether the plaintiff is entitled to the decree of possession w.r.to suit property bearing plot No. 5/1A & 14A/1, area measuring 62/5 sq. yards size 15x36.6 situated in revenue estate of Village Mitraon, Delhi in abadi known as Gopal Nagar G Block Najafgarh, New Delhi110043? OPP
2. Whether defendant no. 1 Kavita was coerced to put her signatures in the sale documents? OPD
3. Whether the sale documents are forged and fabricated? OPD
4. Relief;
13. In order to prove its case, the plaintiff has examined one Sh.ASI Sukhram, who has proved on record the complaint given by plaintiff in P.S BHD Nagar vide DD no. 37B dated 17.11.2018, local complaint no. 1629/SHO BHD Nagar. The said complaint is Ex. CW1/A and local complaint is Ex. CW1/B. CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.9 of 15
14. Plaintiff has also examined one Sh.Ajay Kumar Goyal, who has proved on record the bail application no. 31031/2018 which was filed by Karamveer (defendant no. 2) in case titled as 'State Vs. Karamveer' which is Ex. PW2/A. The order of the said bail application is Ex. PW2/B. Plaintiff has stepped into the witness box as PW3 and has deposed on the affidavit Ex. PW3/X.
15. Thereafter, matter was listed for recording of defendants evidence. Defendant has stepped into the witness box as DW1 and has deposed on affidavit by way of evidence is Ex. DW1/A. She has been crossexamined at length. Her testimony is not reproduced for the sake of brevity.
16. I have heard the counsel for the parties and with their assistants have gone through the record.
ISSUE NO. 117. The onus to prove this case is on the plaintiff. Plaintiff as PW1 has testified through his evidence affidavit Ex. PW3/X and reiterated the contents of plaint which are not reproduced for the sake of brevity. Plaintiff further testified that the mother, purchased the said land through registered sale deed and, thereafter, the mother executed a gift deed in respect of the said property. (Ex. PW1/C) in favour of defendant no. 1 CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.10 of 15
18. The defendant no. 2 being the owner of the suit property (which is part of the said property) disposed off the same to plaintiff through sale documents dated 04.11.2011 Ex. PW 3/D (Colly).
19. Sh. Balwan Singh Ex. PW3/A, being attesting witness to the sale documents Ex. PW3/D (Colly) executed by defendant no.2 in favour of the plaintiff, has deposed on the lines of plaintiff and testified that the defendant no. 1 executed the sale documents in his presence in favour of plaintiff.
20. Defendant no. 1 appeared as DW1 and testified through her evidence affidavit. (DW1/A) and reiterated the contents of her written statement. She testified that the plaintiff has paid him the amount as sale consideration as detailed in the para no. 06 of this judgment. She further testified that suit property was purchased for an amount of Rs. 35 lakhs but plaintiff has paid only Rs. 15,50,000 out of the total sale consideration of 35 lakhs. The plaintiff without payment of the total sale consideration of Rs. 35 lakhs wanted to take possession of the suit property.
21. It may be noted that plaintiff was seeking possession of the suit property on the basis of the notarized documents Ex. PW3/D namely GPA, agreement to sell, receipt, possession letter, indemnity bond, SPA, affidavit, WILL etc. executed by defendant no. 1. However, the documents are only notarized and even the agreement to sell is not registered with payment of 90% stamp duty as per Section 53A of the CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.11 of 15 Transfer of Property Act, which stood amended by way of amendment with effect from 24.09.2001. These unregistered documents including the agreement to sell did not confer any right, title or interest on the plaintiff to seek possession of the suit property in as much as agreement to sell did not vest any title in the vendee. Though not quoted reliance is placed upon Venigalla Koteswaramma vs Malempati Suryamba, judgment passed in Civil Appeal No. 9546 of 2013 by Hon'ble Supreme Court, wherein in para no. 39, it has been observed as under :
"39. Apart from the above, it is also fundamental, as per Section 54 of the Transfer of Property Act, 1882, that an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour does not get any right in the property, except the right of obtaining sale deed on that basis. For ready reference, we may reproduce Section 54 of the Transfer of Property Act that reads as under: "54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.12 of 15 place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties."
22. So is the ratio of judgment Mac Associates v. S.P. Singh Chandel 2013 III AD (Delhi) wherein, in para no. 13, it has been observed as under :
"13. If the matter is viewed from another angle then also suit for possession on the basis of Collaboration Agreement, which at best can be taken at par with the Agreement to Sell, is not maintainable even if, for the sake of arguments, it is accepted that the respondent was agent of appellant. Agreement to Sell does not vest any right in favour of a person to the possession of property. Even if a person is put in possession of property through an Agreement to Sell, he cannot protect his possession on the pretext of part performance under Section 53A of the Transfer of Property Act, 1882 unless such an agreement is a registered document. Section 17 (1A) of the Registration Act, 1908, which has come into force with effect from 24th September, 2001, reads as under: Documents containing contracts to transfer for consideration, any immoveable property for purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, they shall have no effect for the purpose of the said Section 53A. CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.13 of 15 Once a person cannot even protect the possession, which he is holding, in absence of an unregistered Agreement to Sell, then how such a person can seek possession on the basis of such a document. In Sunil Kapoor v/s Himmat Singh & Ors. 167 (2010) Delhi Law Times 806, a Single Judge of this Court has held thus "a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v/s Narain Das, AIR 1981 Delhi 291 has held that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed."
A bare perusal of the ratio of law laid down in the said judgment lead to conclude that on the basis of notarized sale documents including agreement to sell, no right, title or interest vested in the plaintiff/vendee and on the basis of such sale documents plaintiff is not entitled to seek possession of the suit property. Therefore, Issue no. 1 is decided in favour of plaintiff.
ISSUE NO. 2 & 323. So far as issue no. 2 and issue no. 3 are concerned, defendants have led no evidence that the sale documents Ex. PW 3/D were forged and fabricated and defendant no.1 executed the same under coercion, in as much as, no evidence has been led in this regard by CS No. 2152/2018 (1241/2018) Hitender Singh v. Kavita & Ors.
Page no.14 of 15 defendants, otherwise also defendant no. 1 admitted her signatures as well as that of her husband on the sale documents Ex. PW3/D. (Colly.) However, the plaintiff has placed on record, and proved those sale documents through which he had purchased the suit property. Therefore, issue no. 2 and 3 are decided in favour of the plaintiff and the defendants.
24. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish his case against defendants. The suit filed by the plaintiff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
Announced in the open court KUMAR DAHIYA
on 03rd day of June 2022. DAHIYA Date:
2022.06.07
12:42:50
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 2152/2018 (1241/2018)
Hitender Singh v. Kavita & Ors.
Page no.15 of 15