Delhi District Court
Hansraj vs Syed Faisal And Ans on 1 September, 2025
HANSRAJ Vs. SYED FAISAL AND ANS.
DLST010043462019
IN THE COURT OF DISTRICT JUDGE-02, SOUTH
DISTRICT, SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Dr. Yadvender Singh.
CS DJ No. 391/2019
Filing No. 1616/2019
CNR No. DLST01-004346-2019
In The Matter of:
SHRI HANSRAJ
S/O SHRI MAMCHAND YADAV,
RESIDENT OF HOUSE NO. 351/46,
VILLAGE SAIDULAJAB, P.O. MEHRAULI,
NEW DELHI-110030. ......PLAINTIFF
VERSUS
1. SH. SYED FAISAL
S/O SYED NAYAB,
RESIDENT OF HOUSE NO. 728,
HAVELI AZAM KHAN, CHITLI QABAR,
JAMA MASJID, DELHI-110006.
2. SH. BRAHM PRAKASH YADAV,
S/O SHRI KARAN SINGH YADAV,
R/O HOUSE NO. GF-18, GALI NO.2,
SAIDULAJAB, NEW DELHI. ......DEFENDANTS
Date of Institution : 04.07.2019
Date of reserving the judgment : 07.07.2025
Date of pronouncement : 01.09.2025
Decision : Partly decreed
Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date: 2025.09.01
16:46:37 +0530
Page 1 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025
HANSRAJ Vs. SYED FAISAL AND ANS.
SUIT FOR SPECIFIC PERFORMANCE, POSSESSION WITH
CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by the plaintiff for specific performance, possession with consequential relief of permanent injunction.
2. The brief facts of the case as per plaint are as under:-
2.1. The present suit is filed for relief for specific performance, possession with consequential relief of permanent injunction.
2.2. It is mentioned in the plaint that in the month of April, 2017, the defendants no.1 and 2 approached the plaintiff for sale of a flat bearing No. A-1 on upper Ground Floor, area measuring 45 sq. yards, consisting of one bed room set of property bearing No.85 comprised in Khasra No. 279 situated in the Abadi of Lal Dora (1908-09), Village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi and it was convinced to the plaintiff by both the defendants that defendant no.2 was the owner of the said land but he entered into a collaboration agreement with the defendant no.1 and as per the said agreement, the defendant no.1 would develop the flats on the said land and thereafter some flats of the said building would be under the possession and ownership of the defendant no.1 and rest will be of the defendant no.2 and it was left upon the plaintiff by the defendants to choose the flat and thereafter as per the right on the flats either the defendant no.1 or defendant no.2 would execute the sale documents in favour of the plaintiff. YADVENDER Digitally signed by YADVENDER SINGH SINGH Date: 2025.09.01 16:46:42 +0530 Page 2 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
2.3. That after convincing with the defendants, the plaintiff choose the upper ground floor of the said building and as per the Collaboration Agreement, it was told by the defendants to the plaintiff that the said flat belonged to the defendant no.1, so the plaintiff should execute the agreement to sell-cum-receipt with the defendant no.1 and at the time of execution of the sale documents, the defendant no.2 would execute the same. 2.4. That after getting full satisfaction from the defendants, the plaintiff agreed to purchase the flat and thereafter as per the number of the flat, the defendant no.1 had executed an agreement to sell-cum-receipt in favour of the plaintiff on 08.05.2017. 2.5. That as per the agreement, the sale consideration amount of the said flat was Rs.18,00,000/- and at the time of execution of the sale agreement-cum-receipt, the plaintiff had paid a sum of Rs.6,00,000/- to the defendant no.1 and the rest outstanding balance of Rs.12,00,000/- had to be paid by the plaintiff to the defendant no.1 in six installments as per his wish but before the execution of sale documents and handing over the physical possession of the said flat. That as per the said agreement with the defendant no.1, the plaintiff paid a total sale consideration amount of Rs.14,50,000/- to the defendant no.1 but even after lapse of two years, both the defendants were not ready to hand over the physical possession and execution of the sale documents.
2.6. That at the time of execution of agreement to sell-cum-
receipt with the defendant no.1, defendant no.2 handed over the Collaboration Agreement with the defendant no.1 to the plaintiff.
Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.09.01 16:46:53 +0530 Page 3 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
That defendant no.1 had been absconding and the defendant no.2 was not ready and willing to execute the sale documents in favour of the plaintiff after finishing the work despite the repeated requests and his willingness to pay the outstanding balance of Rs.3,50,000/-. That the plaintiff came to know that the defendant no.2 was trying to sell the said property to someone else and it also came into the knowledge of the plaintiff that both the defendants were in collusion with each other and they collectively received the amount from the plaintiff and thereafter in collusion the defendant no.1 disappeared with intention to grab the money of the plaintiff. Hence, the present suit has been filed.
3. Summons of the suit were issued to the defendants. Summons sent to the defendant no.1 were received back unserved with the report that the defendant has left the address. Thereafter, defendant no.1 was directed to be served by way of affixation as well as by way of publication in newspaper 'Jansatta'. Defendant no.1 was served by way of affixation as well as publication in newspaper Janssatta dated 15.08.2019 and The Indian Express dated 15.08.2019. None appeared on behalf of the defendant no.1 despite service. Hence, defendant no.1 was proceeded ex-parte vide order dated 17.09.2024.
3.1. Written statement on behalf of defendant no. 2 is found to be filed on record, wherein it is alleged that there was no contract between the plaintiff and defendant no.2 for sale of property in question and defendant no.2 was neither a party nor the witness to the alleged documents which were allegedly executed by defendant no. 1 in favour of plaintiff. All claims of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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the plaintiff were denied in the written statement by defendant no. 2 in parawise reply.
3.2. Order dated 16.01.2020 in this case shows that replication and affidavit of admission/ denial on behalf of plaintiff were not filed and it was also submitted by defendant no.2 that no admission was to be conducted as there was no original documents filed by the plaintiff and thereafter admission/ denial was ordered to be over and vide same order Ld. predecessor court framed the following issues:
1. Whether the plaintiff is entitled to Specific Performance of the agreement dated 03.05.2017, in respect of flat bearing No. A-1, on upper ground floor, (45 sq. yds.) forming part and parcel of property bearing No.85, comprised in Khasra No.279, Lal Dora (1908-1909), village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi and is entitled to possession thereof? OPP
2. Whether the suit is not maintainable against defendant no.2 on account of the fact that there is no privity of contract or any cause of action against defendant no.2? OPD
3. Whether the agreement dated 03.05.2017, cannot be enforced against defendant no.2/original owner of the property? OPD
4. Whether the agreement dated 03.05.2017, does not bind to defendant no.2 on account of breach of contract by defendant no.1 himself? OPD
5. Whether the suit has been properly valued for the purpose of Court Fee and valuation? OPD
6. Whether the defendant no.2 is a necessary and proper party to the present suit? OPD
7. Relief.
4. Perusal of the record shows that the agreement to sell into question in this case is dated 07.05.2017. However, in issues no.
Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.09.01 16:48:21 +0530 Page 5 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
1, 3 & 4 the date of this agreement has been mentioned as 03.05.2017 instead of 07.05.2017. All the pleadings as well as the evidence led on behalf of the parties as well as the document itself i.e. the agreement to sell in question reflects date of agreement is 07.05.2017, hence, in exercise of power u/o XIV rule 5 CPC, 1908, issues no. 1, 3 & 4 are hereby reframed as follows while mentioning the correct date of agreement to sell:
1. Whether the plaintiff is entitled to Specific Performance of the agreement dated 07.05.2017, in respect of flat bearing No. A-1, on upper ground floor, (45 sq. yds.) forming part and parcel of property bearing No.85, comprised in Khasra No.279, Lal Dora (1908-1909), village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi and is entitled to possession thereof? OPP
3. Whether the agreement dated 07.05.2017, cannot be enforced against defendant no.2/original owner of the property? OPD
4. Whether the agreement dated 07.05.2017, does not bind to defendant no.2 on account of breach of contract by defendant no.1 himself? OPD
5. The matter was fixed for plaintiff's evidence. Two witnesses were examined by plaintiff in PE. 5.1. Plaintiff examined himself as PW-1 and PW-1 tendered his evidence by way of affidavit Ex. PW-1/A. He was duly cross-examined by defendant no. 2 on 06.01.2024. 5.2. The plaintiff also examined PW-2 Sh. Rajender Kumar.
He has tendered his evidence by way of affidavit Ex.PW-2/A. He was duly cross-examined by Ld. counsel for the defendant no.2 on 23.02.2024.
5.3. PE was closed vide order dated 23.02.2024 vide Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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separate statement of Ld. counsel for plaintiff.
6. Two witnesses were examined by defendant no. 2 in DE. 6.1. Defendant no.2 examined himself as DW-1. DW-1 tendered his evidence by way of affidavit Ex.-DW1/A. He was duly cross-examined by Ld. counsel for the plaintiff on 29.05.2024.
6.2. Defendant no.2 also examined DW-2 Smt. Kusum Lata. DW-2 tendered his evidence by way of affidavit Ex.DW-2/A. She was duly cross-examined by Ld. counsel for the plaintiff on 17.09.2024.
6.3. DE was closed vide order dated 17.09.2024 vide separate statement of defendant no. 2 and thereafter matter was fixed for final arguments.
7. Written arguments on behalf of plaintiff were filed on 05.08.2025. That day, after final arguments had been heard, an application u/o VI rule 17 CPC on behalf of plaintiff for amendment of the plaint was filed at 2.00 PM and it was dismissed vide the detailed order of the same date. 7.1. During the course of final arguments, Ld. counsel for plaintiff requested for a decree against defendant no. 1 for recovery of Rs. 14,50,000/- alongwith interest from the date of filing of the suit till its realization. Ld. counsel for defendant no.2 did not object on the same.
8. I have heard the final arguments and perused the material on record.
9. Time now to deal with the issues. My issue-wise finding is as under: Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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Issue No.1: Whether the plaintiff is entitled to Specific Performance of the agreement dated 07.05.2017, in respect of flat bearing No. A-1, on upper ground floor, (45 sq. yds.) forming part and parcel of property bearing No.85, comprised in Khasra No.279, Lal Dora (1908-1909), village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi and is entitled to possession thereof? OPP Issue No.2: Whether the suit is not maintainable against defendant no.2 on account of the fact that there is no privity of contract or any cause of action against defendant no.2? OPD Issue No.3: Whether the agreement dated 07.05.2017, cannot be enforced against defendant no.2/original owner of the property? OPD Issue No.4: Whether the agreement dated 07.05.2017, does not bind to defendant no.2 on account of breach of contract by defendant no.1 himself? OPD
10. As issue no. 1, 2, 3 & 4 are interconnected, hence taken together.
11. In order to prove his case, the plaintiff examined total two witnesses. He examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/A. In his affidavit of evidence he reiterated the facts as mentioend in the plaint. He deposed in para 3 of affidavit that in the month of April 2017, the defendants no. 1 & 2 approached the deponent for sale of flat A-1 of Upper Ground Floor area admeasuring 45 sq. yds. consisting of one bed room of property bearing no. 85, comprised in khasra no. 279, situated at Abadi of Lal Dora (1908-09), Village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi.
12. On 06.01.2024, PW-1 was recalled for further examination in chief and that day he relied upon total three documents i.e. copy of collaboration agreement dated 25.02.2017 between Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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defendant no. 1 and defendant no. 2, which was marked as Mark- A, copy of Agreement to Sell-cum-receipt dated 07.05.2017 and Map, which were exhibited as Ex.PW1/1 (Colly. 5 pages) (OSR) and copy of Aadhar Card of plaintiff, which was exhibited as Ex.PW-1/2 (OSR).
13. During his cross-examination he answered that some khasra, khatoni, fard etc. were shown to him and the photocopy of Collaboration Agreement was also shown to him and he read that Collaboration Agreement. He also answered that no agreement to sell had been entered into by him with defendant no. 2 and he paid a cheque to Syed Faisal/ defendant no. 1 at the time of signing agreement and he did not pay any amount to Brahm Prakash/ defendant no. 2 till that day. He also answered that the flats under agreement had not been completed and not handed over to Braham Prakash. He further answered that he had read his agreement with builder Syed Faisal/ defendant no. 1 before signing and it was nowhere mentioned in that agreement Ex. PW-1/1 (colly 5 pages) that the possession would be handed over to him by Braham Prakash/ defendant no. 2. He also answered during his cross-examination that statement made by him in para 9 of his affidavit of evidence that "at the time of execution of agreement to sell-cum-receipt with the defendant No.2" was incorrect as no agreement with Braham Prakash/ Defendant no. 2 had ever been made.
14. The abovesaid answers of the plaintiff during his cross- examination suggest that neither he entered into agreement to sell with defendant no. 3 nor he paid any amount to defendant no. 2 Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:07 +0530 Page 9 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
regarding the same. Rather his all alleged transactions were with the defendant no. 1. The Collaboration Agreement dated 25.02.2017 Mark A as entered into between both the defendants shows that Collaboration Agreement was regarding property bearing no. 18, Gali no. 2, Khasra no. 331/122 (1-7), measuring approximately 170 sq. yds. situated at Saidullajab, New Delhi, however, the agreement to sell-cum-receipt dated 07.05.2017 Ex. PW-1/1 (colly 5 pages) is qua property bearing flat no. A-1 of Upper Ground Floor area admeasuring 45 sq. yds. consisting of one bed room of property bearing no. 85, comprised in khasra no. 279, situated at Abadi of Lal Dora (1908-09), Village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi. The details of the property in both of these documents are different. Neither the property numbers are same nor khasra numbers in which the property (subject matter) of these documents are comprised are same. It is not the case of the plaintiff that he was misled on behalf of defendants regarding correct property number of the said property rather he himself answered during his cross- examination that he read the Collaboration Agreement dated 25.02.2017 and he also read his agreement to sell dated 07.05.2017 with defendant no. 1 before signing. Moreover, he himself filed copy of Collaboration agreement to sell dated 07.05.2017 dated 25.02.2017 as well as copy of agreement to sell dated 07.05.2017 alongwith the plaint, wherein the details of the subject matter/ property of these documents are apparently different. Moreover, in his plaint as well as affidavit of evidence also he mentioned about the same property as is mentioned in the present issue no. 1. Any incorrectness in the details of the suit Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:13 +0530 Page 10 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
property was never raised on behalf of plaintiff from the date of filing of the suit till the framing of issues or even after framing of issues till the final arguments were heard. It was only when after final arguments were concluded that the plaintiff mentioned about his intentions for filing an amendment application for amendment in the plaint and the same was dismissed vide detailed order dated 05.08.2025. Moreover, even if the contentions of the plaintiff regarding any typographical error in wrongly mentioning the details of the suit property in the plaint is considered to be correct then also it cannot be overlooked that the details of the property/ subject matter must be same in the present case atleast in Collaboration Agreement dated 25.02.2017 and agreement to sell dated 07.05.2017, on the basis of which plaintiff claims to purchase the suit property. However, the details of the properties in both these documents are different. Accordingly, atleast on the basis of this difference in the details of the property in the two very important documents i.e. the Collaboration Agreement dated 25.02.2017, which is relied upon by the plaintiff to show agreement between both the defendants and Agreement of Sell dated 07.05.2017 on the basis of which plaintiff claims the said property by virtue of alleged agreement between him and builder/ defendant no. 1, it cannot be said that the plaintiff entered into agreement to sell to purchase the same property, which is subject matter of the Collaboration Agreement as entered into between defendants. This difference goes to the roots of this case and negates the plaintiff's claim.
15. The plaintiff also examined one more witness Sh. Rajender Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:17 +0530 Page 11 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
Kumar as PW-2, who tendered his evidence by way of affidavit Ex. PW-2/A, wherein he deposed that he and the plaintiff herein had purchased the flat from the defendants herein and plaintiff herein paid some amount to the defendants no. 1 & 2 and did not get the possession of the flat like him. During his cross- examination, he answered that he was not aware of the details given in his evidence affidavit Ex. PW-2/A. He answered that Hansraj / plaintiff herein had purchased the property from Faizal Haider and he did not know when Hansraj purchased the said property from Faizal Haider. He further answered that his agreement was also made with Faizal Haider and he had made his agreement after agreement of Hansraj. He also answered that he did not know when the agreement was made for the property in question by Hansraj. He further answered that he did not know which flat Hansraj had purchased.
16. When PW-2 himself stated that he was not aware about all the details given in his affidavit of evidence Ex. PW-2/A then the deposition of PW-2 in the evidence cannot be relied upon. Moreover, none of the defendant herein is namely Faizal Haider or Faizal Hasan as stated by PW-2 during his cross-examination rather the name of defendant no. 1 is Syed Faisal. Even if this fact is also ignored then also the evidence of PW-2 does not show anything cogent to prove that either defendant no. 2 was in hand in gloves with defendant no. 1 against the plaintiff herein or defendant no. 2 was involved in any transaction regarding the sale of the suit property with the plaintiff. Accordingly, the evidence of PW-2 is of no use in proving the present issue in Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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favour of the plaintiff.
17. Defendant no. 2 also led defence evidence and examined two witnesses in DE on his behalf. He examined himself as DW-1 and tendered his evidence through affidavit Ex. DW-1/A wherein he stated that defendant no. 1 herein approached him to construct the property no. 18, Gali no. 2, Khasra no. 331/122 (1-
7), measuring approximately 170 sq. yds. situated at Saidullajab, New Delhi upto third floor with terrace and also assured to him that he would complete the building within 13 months and on that the Collaboration Agreement between him and defendant no. 2 herein (builder) was executed on 25.02.2017 and as per Collaboration Agreement the defendant no. 1 herein had to pay a sum of Rs. 26,00,000/- to him as per terms and conditions of the said Collaboration Agreement. He further deposed that on the same date he received Rs. 1,00,000/- cash as part payment from the defendant no. 1 and his shares as well as share of defendant no. 1 were also mentioned in the Collaboration Agreement and it was also agreed upon between them that after completion of building he should execute the necessary documents regarding the shares/ flats falling under the share of defendant no. 1 as per Collaboration Agreement. He further deposed that after starting the construction of the building the said building was sealed by MCD and defendant no. 1 could not complete the building in 13 months and he requested to extend 4 months time to complete the said building but he could not complete it thereafter also and meanwhile, the deponent (defendant no. 2 herein) came to know that defendant no. 1/ builder started to enter into agreement to sell Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:28 +0530 Page 13 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
regarding the flats/ shares under his share without completing the building as well as without consent and that he had objected the same at many times and he never took a single penny from any of the purchaser, who entered into agreement to sell with defendant no.1 herein. He further deposed that defendant no. 1 stopped construction of the building in mid way without complying with the terms and conditions of the Collaboration Agreement and also violated the terms and conditions of the agreement, so the contract performance done in respect of the agreement to sell dated 25.02.2017 would be void ab initio, so the defendant no. 1 was not having any right, title to sell any of the flats in his above mentioned property including the suit property. He further deposed that after leaving incomplete building by defendant no. 1 he started searching for other builder for completion of the abovesaid work. On 22.03.2019 he entered into a Memorandum of Understanding with a person namely Ashu Yadav for completion of construction work, however, Ashu Yadav also left the building incomplete and same remained incomplete.
18. During his cross-examination he answered that defendant no. 1 had given only Rs. 1,00,000/- to him. Further, he answered that in the next 13 months the builder constructed upto 2 nd floor and in the next four months as per the extension of time he did nothing in the building. Thereafter, he denied the suggestions given by the plaintiff. The defendant no. 2 also examined his wife Kusum Lata as DW-2, who tendered her evidence by way of affidavit Ex. DW-2/A. During her cross-examination, she answered that it was decided that defendant no. 1 would give Rs.
Digitally signed by YADVENDER YADVENDER SINGH
SINGH Date:
2025.09.01
16:49:33 +0530
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HANSRAJ Vs. SYED FAISAL AND ANS.
26,00,000/- to them against the construction to of the building on the land bearing Khasra no. 331/122 (1-7), Property no. 18, Gali no. 2, Saidullajab, Saket. She further answered that it was also agreed upon that defendant no. 1 would construct four floors on the land but after construction of two floors he left the work and disappeared.
19. The cross-examination of defendant's witnesses show that subject property of the Collaboration Agreement remained incomplete and terms and conditions of the Collaboration Agreement were not complied with by the defendant no. 1. Even otherwise no such evidence was led on behalf of the plaintiff which may show that defendant no. 1 being a party to the Collaboration Agreement performed his part of promise in discharge of his duties as per terms and conditions of the Collaboration Agreement. No evidence in form of photograph or video was also produced by the plaintiff to show that building was completed by defendant no. 1 in compliance of the terms and conditions of Collaboration Agreement.
20. In the present matter the foundation of the transaction is the Collaboration Agreement dated 25.02.2017 executed by the original owner of the property / defendant no. 2 in favour of builder/ defendant no. 1. It has been pleaded by the plaintiff that in terms of this Collaboration Agreement defendant no. 2 sold the portion of the property to defendant no. 1. Clause 3 of the Collaboration Agreement suggests that on the date of signing this agreement the owner had handed over the vacant physical possession of the plot to the builder for construction. The Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:38 +0530 Page 15 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
question which arises is that whether this document confer title of the property to defendant no. 1 to the extent that he could have executed further agreement to sell dated 07.05.2017 in favour of the plaintiff herein. The answer is indeed negative.
21. Section 54 of Transfer of Property Act, 1882 provides that contract for sale does not in itself creates any interest in or part of such property. Such contract is merely a document creating a right to obtain another document in form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right in personam and not in estate. No privity in estate can be deduced therefrom which can bind estate as is the position in cases of mortgage, charge or lease. Such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement to sell. However, position of the law is absolutely clear that the agreement to sell does not create any right or title in favour of intending buyer.
22. Reliance can be placed in judgment titled Meghmala & Ors vs G.Narasimha Reddy & Ors, 2010 (8) SCC 383 , wherein it was categorically held that an agreement to sell does not create any right or title in favour of intending buyer.
23. It is also held by Hon'ble Supreme Court of India in judgment titled Suraj Lamp & Industries (P) Ld. Tr. Dir vs State Of Haryana & Anr, JT 2011 (12) SC 654 that transfer of immovable property by way of sale can only be by deed of conveyance (sale deed) and in the absence of conveyance deed no right, title or interest in immovable property can be transferred.
Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.09.01 16:49:44 +0530 Page 16 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
24. It was observed in Crest Hotel Ltd. Vs Asstt. Superintendent of Stamps AIR 1994 Bom 228 that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, in itself create any interest in or charge on such property. An agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein. On the strength of such an agreement, a buyer does not become the owner of the property. The ownership remains with the seller. It was observed in the matter that the ownership would be transferred to the buyer only on the execution of sale deed by the seller and under an agreement to sell the buyer only obtains a right to get the sale deed executed in his favour.
25. Coming to the facts of the present case, the Collaboration Agreement between defendant no. 1 and defendant no. 2 was executed on 25.02.2017. On appreciating the terms and conditions of this Collaboration Agreement it becomes obvious that it was basically an agreement to sell whereby defendant no. 2 being the owner of the property handed over its possession to defendant no.1 (builder) for carrying out the constructions. The portion which would fall to the share of owner/ defendant no. 2 and defendant no. 1 were specified in the agreement. The intention of the parties can be gathered from specific clause of the Collaboration Agreement. On reading Collaboration Agreement it is apparent that it was the intention of the original owner i.e. defendant no. 2 that the builder shall complete the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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construction of the building and thereafter he would be competent to sale his portions of the building.
26. Clause 16 of the Collaboration Agreement specifically provides that the first party i.e. owner shall be responsible to execute the sale deed, GPA, Will etc. in respect of the builder/ second party allocation in favour of builder after standing the entire structure of the building. However, the plaintiff during his cross-examination answered himself that the flats under agreement had not been completed and not handed over to Braham Prakash (defendant no. 2) Accordingly, when entire structure of the building was not completed by the builder then ower cannot be said to be under any obligation to execute the sale deed in respect of the builder's allocation in his favour.
27. In view of the abovesaid discussion, analyzing the evidence led by plaintiff and the defendant, the material on record suggest that construction of building had not been completed by defendant no. 1. Since the construction was not completed, therefore, defendant no. 1 did not acquire the right to sale his portion of the constructed property. The Collaboration Agreement was executed for the purpose of construction of property and it did not confer right to defendant no. 1 to sell the property to the plaintiff.
28. The material on record raises serious doubts over the validity and factum of subsequent agreement to sell dated 07.05.2017 apparently executed on the basis of initial Collaboration Agreement dated 25.02.2017.
Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.09.01 16:49:53 +0530 Page 18 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
29. It has been held by Hon'ble Apex Court in Mayawati v. Kaushalya Devi, 113 (2004) DLT 675 that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them and the specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable.
30. As observed in the preceding paras the Collaboration Agreement cannot be termed as agreement to sell. Even if it is presumed that it constitutes an agreement to sell then also it did not confer any right or title on defendant no. 1. The original owner/ defendant no. 2 never executed conveyance deed in his favour. Clause 3 of the Collaboration Agreement only indicates that owner handed over the possession of the property to defendant no. 1 for the purpose of construction. The Collaboration Agreement was the evidence of entire transaction. Since defendant no. 1 had no right in respect of the property, therefore, he was not competent to execute a further agreement to sell in favour of plaintiff. So, there cannot be any specific performance of the agreement to sell dated 07.05.2017 purportedly executed by defendant no. 1 in favour of the plaintiff. The fact that defendant no.1 was given possession of the property does not alter the legal position. The possession does not confer upon him any right to execute the agreement sell in favour of a third party.
31. It has been held by Hon'ble Apex court in the matter of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:49:59 +0530 Page 19 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
M/s. Jagdambey Builders Pvt. Ltd. vs. J.S. Vohra, AIR 2016 (Del) 2023 that in the absence of a registered agreement to sell, the plea of part performance cannot protect the possession of the party.
32. Even otherwise the plea of part performance in absence of registered document cannot be taken. The Collaboration Agreement dated 25.02.2017 Mark A as well as agreement to sell dated 07.05.2017 Ex. PW-1/1 (colly 5 pages) are not registered documents. Defendant no. 1 cannot thus in absence of a registered agreement to sell protect his possession in part performance of agreement to sell. Even otherwise defendant no. 1 never appeared to take such a plea in the present case and as per defendant no. 2 as well as plaintiff, defendant no. 1 is no longer in the possession of the property.
33. The abovesaid settled position of law further fortifies the conclusion that under the Collaboration Agreement dated 25.02.2017 defendant no. 1 did not get any right or title in the property except the right to enforce the said Collaboration Agreement. There is nothing on record to indicate that defendant no. 1 ever sought specific performance of the Collaboration Agreement. Thus defendant no. 1 did not get any right or title in the property and he was not competent to enter into an agreement to sell with the plaintiff herein.
34. Further there is an inherent defect in the plaint which goes to the root of the case because property numbers and khasra numbers of the subject matter land of the Collaboration Agreement dated 25.02.2017 Mark A and agreement to sell dated Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:50:05 +0530 Page 20 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
07.05.2017 Ex. PW-1/1 (colly 5 pages) are entirely different. Even the details of the property as mentioned in the plaint, present issue no. 1 as well in the affidavit of evidence of PW-1/ plaintiff herein are different to the property mentioned in the Collaboration Agreement. There is also no cogent evidence on behalf of the plaintiff to suggest that the construction of the property was completed by defendant no. 1 in compliance of terms and conditions of the Collaboration Agreement.
35. It is the case of the plaintiff that defendant no. 1 executed an agreement to sell in his favour on the basis of Collaboration Agreement. As observed in preceding paras defendant no. 1 did not acquire any right, title over the property as the construction was not completed, therefore, he was not competent to enter into agreement to sell with the plaintiff. In view of the abovesaid discussion, material/ evidence on record and the settled legal position, I am of the considered opinion that plaintiff is not entitled to specific performance of the agreement to sell dated 07.05.2017 in respect of property bearing flat No. A-1 on upper Ground Floor, area measuring 45 sq. yards, consisting of one bed room set of property bearing No.85 comprised in Khasra No. 279 situated in the Abadi of Lal Dora (1908-09), Village Saidulajab, Tehsil Hauz Khas, Mehrauli, New Delhi and is also not entitled to possession thereof and present suit is not maintainable against defendant no. 2 and accordingly agreement to sell dated 07.05.2017 cannot be enforced against defendant no. 2 and agreement to sell dated 07.05.2017 also does not bind defendant no. 2 on account of privity of contract by defendant no. 1.
Digitally signed by YADVENDER YADVENDER SINGH
SINGH Date: 2025.09.01
16:50:09 +0530
Page 21 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025
HANSRAJ Vs. SYED FAISAL AND ANS.
Accordingly, issue no. 1, 2, 3 & 4 are decided against the plaintiff.
Issue No.5: Whether the suit has been properly valued for the purpose of Court Fee and valuation? OPD Issue No.6: Whether the defendant no.2 is a necessary and proper party to the present suit? OPD
36. Onus to prove these issues is on the defendant. As issues no. 1, 2, 3 and 4 have already been decided against the petitioner, so I am of the considered opinion that these issues are liable to be struck off in exercise of power u/o XIV rule 5 CPC, 1908.
37. In view of the aforesaid, issues no. 5 & 6 are hereby struck off in exercise of power u/o XIV rule 5 CPC.
Issue No.7: Relief.
38. In view of the finding given qua issues no. 1, 2, 3, 4, 5 & 6 the present suit is dismissed against defendant no. 2.
39. However, the plaintiff is entitled for refund of payment made in terms of agreement to sell dated 07.05.2017 from defendant no. 1 as Section 65 of Indian Contract Act puts an obligation on a person having received any advantage with a void agreement to restore it or to make compensation for it to the person from whom it was received. As defendant no. 1 was proceeded ex-parte and neither he filed any written statement nor appeared to cross-examine the plaintiff's witnesses or to lead any other defence on his behalf, accordingly, presumption under Section 114 of Indian Evidence Act must be drawn against defendant no. 1. Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:50:14 +0530 Page 22 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
40. Hon'ble Supreme Court in the judgment of Vidhyadhar vs. Manikrao, AIR 1999 SC 1441 has categorically observed that:
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
41. The agreement to sell cum receipt dated 07.05.2017 was exhibited as Ex. PW-1/1 (colly) (5 pages) (OSR) during the cross-examination of PW-1. During the final arguments, Ld. counsel for plaintiff argued that it has been mentioned in agreement to sell itself that the defendant no. 1 received a sum of Rs. 6,00,000/- as earnest money at the time of signing of the agreement and thereafter a total further payment of Rs. 8,50,000/- was made to defendant no. 1 by the plaintiff, which he received against his acknowledgment made on the first page of the agreement to sell itself. Perusal of the agreement to sell dated Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.09.01 16:50:21 +0530 Page 23 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
07.05.2017 shows that on its page no. 3 there is mentioning of receiving a sum of Rs. 6,00,000/- as advance/ earnest money by the first party (defendant no. 1 herein) from the plaintiff herein. Its first page also bears receiving of total four payments, which are Rs. 2,00,000/- on 11.06.2017, Rs. 2,50,000/- on 10.07.2017, Rs. 2,00,000/- on 10.08.2017 and Rs. 2,00,000/- on 13.09.2017. The signatures against the receiving are similar as of the first party as made on the agreement to sell. The mentioning of the payment of Rs. 6,00,000/- on page 3 of agreement to sell and receiving of total amount of Rs. 8,50,000/- against his signatures by defendant no. 1 as acknowledged on first page of the agreement to sell proves total payment of Rs. 14,50,000/- by the plaintiff to the defendant no. 1 in respect of the transaction entered into between them through agreement to sell dated 07.05.2017. However, the defendant no.1 did not execute the sale deed in specific performance of the agreement to sell. It needs not to be mentioned further that defendant no 1 was not in a legal position to do so due to his invalid title and accordingly agreement becomes void. However it does not permit unjust enrichment of defendant no. 1 by befooling the plaintiff herein.
42. Accordingly, in view of the abovesaid discussion, settled legal position, material available on record, defendant no. 1 is directed to return Rs. 14,50,000/- to the plaintiff herein alongwith interest @ 6% p.a. from the date of filing of the suit till its realization.
43. In the light of the discussion herein above, the suit of the plaintiff is partly decreed in favour of the plaintiff qua defendant Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.09.01 16:50:27 +0530 Page 24 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025 HANSRAJ Vs. SYED FAISAL AND ANS.
no. 1 only.
44. Decree sheet be prepared accordingly.
45. File be consigned to record room after due compliance.
Pronounced in the open Court YADVENDER Digitally signed by YADVENDER SINGH on this 1st day of September, 2025. SINGH Date: 2025.09.01 16:50:34 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02, SOUTH, SAKET COURTS, NEW DELHI. Page 25 of 25 Dr. Yadvender Singh/DJ-02/South/Saket/01.09.2025