Delhi District Court
In Re vs Sh. Darshan Lal & Ors on 24 August, 2012
1
IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE04 : CENTRAL : DELHI
Date of institution : 25.05.2010
Arguments heard on : 07.08.2012
Date of announcement : 24.08.2012
In re :
RCA No. 04/10
Sh. Ravi Dutt Sharma
S/o Late Sh. Kehari
R/o Village & Post Barwala,
Delhi39
... Plaintiff
VS.
1. Sh. Darshan Lal & Ors.
S/o Sh. Dharam Chand
R/o A/163, Ekta Enclave, Piragarhi,
Delhi.
nd
2 Address :
House no. 40, Pocket D15,
Sector 3, Rohini, Delhi.
2. Sh. Gangaram
S/o Late Sh. Kehari
R/o Village Village & Post Barwala
Delhi39
RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 1 of 16 r
2
3. Smt. Ram Kali
W/o Sh. Zila Singh Sharma
D/o Sh. Kehari
R/o Village & Post Bankner,
Near Narela, Delhi
.... Defendants
JUDGMENT
1. Challenge in this appeal is a judgment dated 31.03.2010 passed by Sh. Sameer Bajpai, CCJ Cum ARC(Central), Tis Hazari, Delhi, vide which Suit no. 1851/2009 filed by the appellant was dismissed. The three respondents in the appeal were the three defendants, respectively, in the suit. For the sake of clarity, the appellant and respondents are referred to as the plaintiff and the defendants no. 1, 2 and 3, respectively, as they were in the suit. None of the three defendants/respondents contested the appeal before this court.
2. Before dealing with the main appeal, let it be mentioned that the appeal was accompanied with an application for condonation of delay. The ground taken for the condonation is that around 20 days were spent in obtaining certified copy of the impugned judgment and decree, which was ultimately delivered on 29.04.2012, and thereafter RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 2 of 16 r 3 the appeal was prepared and filed. The delay is condoned in favour of the plaintiff/appellant. Application for condonation of delay is thus disposed of.
3. The suit was preferred seeking declaration of a Sale Deed dated 26.12.1995 as null & void and also seeking mandatory injunction thereby restraining the defendant no. 1 from taking forcible possession of the suit property. The prayer, instead of mandatory injunction ought to have been permanent injunction.
Anyhow, the averments on which the suit was preferred is that the suit property i.e. agricultural land measuring 7 Bigah 9 Biswa fell in joint khewat no. 95/67, Village Barwala, Delhi. The plaintiff was one of the cosharer of this land. Other cosharers were the defendants no. 2; the defendant no. 3; one Sh. Puran and; Smt. Saraswati. The agricultural land was unpartitioned. The defendants no. 2 & 3 sold 1 Bigah & 17 Biswa out of this land in favour of the defendant no. 1 vide the impugned sale deed. It is claimed that the said sale deed was executed by the defendants no. 2 & 3 based on a GPA dated 20.11.1995 which was allegedly executed by all other co RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 3 of 16 r 4 sharers in favour of the defendant no. 2 & 3. Plaintiff claimed that neither he nor other cosharers ever executed this GPA in favour of the defendant no. 2 & 3, therefore, the sale deed be declared null & void. The GPA dated 20.11.1995 is claimed to be forged. Other ground claimed was that the land was not partitioned and thus the sale could not have been made by defendants no. 2 & 3.
4. The suit was contested by the purchaser defendant no. 1 on the ground that he was a bonafide purchaser and that the sale deed cannot be cancelled.
5. The defendant no. 2 i.e. one of the cosharer who executed the sale deed did not contest the suit at all and did not even file his written statement.
6. The defendant no. 3 Smt. Ramkali filed her written statement in the suit and thereafter was proceeded exparte. She claimed that she did not execute the GPA in favour of the defendant no. 2 and that her signatures on the sale deed were obtained under fraud and misrepresentation. She claimed that she is an illiterate lady and the defendant no. 2 obtained her thumb impressions on certain papers on RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 4 of 16 r 5 the pretext of applying for a DDA flat. She claimed that she never sold the property and if the GPA was forged, she had no role in it.
7. Following four issues were framed in the suit : "1. Whether the plaintiff is entitled to the declaration that the sale deed dated 26.12.1995 is null & void? OPP;
2. Whether the plaintiff is entitled to the mandatory injunction as prayed for? OPP;
3. Whether the suit is not valued properly for the purposes of court fees and jurisdiction? OPDI;
4. Whether the suit is barred by limitation? OPDI;
5. Relief."
8. While dismissing the suit, Ld. Trial court first took up the issue of valuation of the suit for the purposes of court fee and jurisdiction and decided the same against the plaintiff on the ground that the sale deed which was impugned and sought to be cancelled reflected the sale consideration as Rs.1,80,000/ and thus suit ought to have been valued as such and ad valorem court fee ought to have been paid on this amount. Learned trial court observed that the suit was liable to RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 5 of 16 r 6 be dismissed on this ground alone. It may be mentioned that the suit has not been dismissed on this ground alone, but other issues were also decided against the plaintiff.
9. The appellant plaintiff claims that before dismissing the suit on this ground the trial court ought to have asked the plaintiff to deposit the court fee.
10.Whether the plaintiff ought to have been asked to pay the court fees is an issue which comes later. First question is whether the ld., trial court was right in observing that the plaintiff ought to have filed ad valorem court fees? Though this point is not raised by the plaintiff still it is important.
11. In Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors. AIR 2010 SUPREME COURT 2807 it is held as follows;
"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 6 of 16 r 7 regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and courtfee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem courtfee on the consideration stated in the sale deed. If 'B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed courtfee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 7 of 16 r 8 courtfee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the courtfee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
12.In this case, there was no prayer for cancellation of the sale deed. The prayer was for a declaration that the deed do not bind the co owners. The plaintiff in the suit was not the executant of the sale deed. But is in possession of the suit property. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The plaintiff, who is a nonexecutant, was in possession and sued for a declaration that the deed is null or void and does not bind him or his share. He had to merely pay a fixed courtfee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. Had the plaintiff not been in possession, than he had to not only seek a declaration that the sale RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 8 of 16 r 9 deed is invalid, but also the consequential relief of possession, and then he had to pay an ad valorem courtfee as provided under Section 7(iv)(c) of the Act. Thus, Ld. Trial court was not justified in observing that the suit was liable to be dismissed on the ground of nonpayment of court fee and improper valuation. Although, the defendant no. 1 i.e. purchaser of the property claimed that after purchase of the property, he automatically came into joint possession of the property but the evidence recorded before the trial court indeed suggests that the plaintiff and other cosharers were in possession. Plaintiff was not a signatory to the impugned sale deed. Therefore, he was not required to value the suit at Rs.1,80,000/ or pay ad valorem court fee on it. Thus, the issue no. 3 was wrongly decided by the Ld. Trial court against the plaintiff. It is decided in favour of the plaintiff as no ad valorem court fee was required in the present case since the plaintiff and other cosharers throughout claimed themselves to be in possession of the suit property.
13.Even otherwise, had it been a case where the plaintiff was required to pay ad valorem court fee, still the Ld. Trial court could not have RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 9 of 16 r 10 dismissed the suit on this ground alone without giving an opportunity to the plaintiff to deposit the court fee and appropriately value the suit. Clause (b) & (c) of Rule 11 of Order 7 CPC clearly mentions that where the relief claimed is undervalued and the plaintiff on being required by the court to correct the valuation and pay court fees within a fixed time, fails to properly value the suit or supply the requisite stamp paper, then only a plaint can be rejected. Anyhow as mentioned above, the suit has not been dismissed on this ground alone and other issues were also decided against the plaintiff.
14.The issue no. 4 as to whether the suit was barred by limitation was decided by the Ld. Trial court in favour of the plaintiff. None of the defendants have challenged this finding.
15.The issues no. 1 & 2 were again decided by the Ld. Trial court in favour of the defendants and against the plaintiff. Perusal of impugned judgment would reveal that the Ld. Trial court observed that the plaintiff could not have challenged the impugned sale deed dated 26.12.1995 without having challenged the GPA dated 20.11.1995. This GPA was allegedly executed by all other cosharers RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 10 of 16 r 11 in favour of the defendant no. 2 and 3 who in turn sold the property to the defendant no. 1. Plaintiff claims that he never signed the GPA. It is also claimed that the signature of another cosharer namely Smt. Saraswati was also forged on this GPA as she had already passed away. However, in evidence the plaintiff did not prove death certificate of this lady. Only one photocopy was marked as Mark A which was purportedly issued by one Sh. Ranbir Singh, village Sarpanch, who also appeared in the witness box as PW5, mentioning that the lady expired on 5.07.1977. As against this, one of the plaintiff's own witness i.e. PW11 Prem Singh Rana, Ilaka Patwari, Barwala, Tehsil Narela, specifically deposed that Smt. Saraswati expired on 4.02.2000. In the crossexamination he again reiterated that as per his record, Smt. Saraswati died on 4.09.2000. There appears to be some typographical error in the date recorded in the evidence of this witness, still, the fact remains that as per this witness of the plaintiff himself, Smt. Saraswati died in the year 2000 that is much after execution of the GPA. The plaintiff did not cross examine or reexamine this witness to show that the lady expired in RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 11 of 16 r 12 1977 and not 2000. No such suggestion was put forth to this witness by the plaintiff. In the impugned judgment, Ld. Trial court has not referred to this fact at all and it seems to have escaped attention of Ld. Trial court. Anyhow, we need not delve into this question any further for the reason that even if we assume the GPA to be forged, law does not require that before challenging the impugned sale deed, the GPA also ought to have been challenged and got cancelled.
16.The second reasoning given by the Ld. Trial court is that the sale deed cannot be cancelled since, even if we assume that the defendant no. 2 only sold his share, the share of defendant no. 2 being 1 Bigah and 9 Biswa, the sale of 1 Bigah and 17 Biswa to the defendant no. 1 cannot be cancelled as at the most the defendant no. 2 sold his undivided share. Here again, Ld. Trial court fell into an error. The sale made to defendant no. 1 is with respect to 1 Bigah & 17 Biswa which is more than 1 Bigah and 9 Biswa, i.e. the share of defendant no. 2 as per the impugned judgment. The view of the ld. Trial court, that if it is assumed that the sale was only by the defendant no. 2 and not others, is to be believed, the defendant no. 2 could not have sold RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 12 of 16 r 13 more than his own share.
17. Be that as it may. In this appeal, we would examine the fact whether still the sale deed is liable to be declared null & void or not. Admittedly, the impugned sale deed contains signatures of the defendant no. 2 & 3, the two cosharers. It is a registered sale deed before the SubRegistrar. The defendant no. 3 did not contest the suit to prove the plea that her signatures on the sale deed were obtained by fraud or misrepresentation. Mere filing of the written statement by her would not take place of proof. If it was the case of defendant no. 3, that her signatures were obtained by fraud or misrepresentation, she ought to have challenged the GPA as well as the sale deed. She did not do so. The very fact that the sale deed is a registered document is a fact that we must presume the sale deed to be a validly and legitimately executed document. Nobody can be allowed to go back against a registered document so easily particularly when the executors have to remain present in person before the SubRegistrar. Thus, the defendant no. 2 & 3 sold 1 Bigah & 17 Biswa of the agricultural land to the defendant no. 1.
RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 13 of 16 r 14 Both of them were cosharers. Even as per claim of plaintiff, the land was not partitioned. The share of these two co sharers comes to be approximately 2 Bighas and 18 Biswa, which is far less than the land sold.
18.Law nowhere says that a cosharer cannot sell undivided share of his property. The defendant no. 2 & 3 at the most sold their undivided share in the property which was indeed more than 1 Bigah and 17 Biswa of the land sold to the purchaser defendant no.1.
19.Thus, even if it is assumed that the plaintiff and other cosharers, besides the defendant no. 2 & 3, did not execute the GPA dated 20.11.1995 still, the defendant no. 2 & 3 were competent to sell their share in the property which was certainly more than the sold property. On this ground, the sale of the property in favour of defendant no. 1 has to be upheld and the sale deed cannot be declared to be null & void.
20.I may also mention here that the Ld. Trial court mentioned that the suit became infructuous because of the fact that the property was acquired by the government and that at the most plaintiff can claim RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 14 of 16 r 15 damages against the cosharers, if entitled. The mere fact that the property was acquired by the government could not have made the suit infructuous for the reason that what was challenged was the execution of the sale deed and relief against forcible dispossession. Though, forcible dispossession relief became infructuous but the validity of the sale deed still was questionable. Had the plaintiff won, the defendant no. 1 would not be entitled to proportionate compensation. There is also no question of recovery of any damages from other cosharers i.e. defendants no. 2 & 3 as they were entitled to sell their undivided share. The reasoning given by the Ld. Trial court that the defendant no. 1 was a bonafide purchaser cannot be faulted with.
21.Thus, the decision of issues no. 1 & 2 indeed has to be against the plaintiff and in favour of defendant no. 1.
22.The appeal is accordingly partially allowed qua issue no. 3 and is dismissed qua the issue no. 1 & 2. Thereby in effect the plaintiff is not entitled to a decree of declaring the impugned sale deed as null & void, nor is the plaintiff entitled to any injunction.
RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 15 of 16 r 16
23.A copy of this judgment be placed in the trial court record and the trial court record be sent back to the court concerned/Successor Court to be consigned to the record room.
24.The present file be consigned to the record room separately. Announced in the open court th on 24 day of August, 2012. Dig Vinay Singh ADJ04 (Central) Delhi RCA no. 04/10 Ravi Dutt Sharma Vs. Darshan Lal & Ors. dtd. 24.08.2012 Pg. 16 of 16 r