Delhi District Court
Smt. Madhu vs Smt. Manorama on 4 July, 2013
1
IN THE COURT OF SH.SHAILENDER MALIK, SCJ/RC/NW/ROHINI
COURTS/DELHI
SUIT NO. 154/13
SMT. MADHU
W/O SH. R.P.GARG
R/O C3/220,JANAKPURI
NEW DELHI110058
.....PLAINTIFF
VERSUS
1.SMT. MANORAMA W/O LATE SH. PADAM SEN R/O H632, PALAM VIHAR GURGAON,HARYANA
2. DELHI DEVELOPMENT AUTHORITY THROUGH VICECHAIRMAN VIKAS SADAN, NEW DELHI .....DEFENDANT Date of institution: 17.02.2010 Date of reserving judgment : 07.06.2013 Date of announcing judgment : 04.07.2013 SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF PLOT NO.141, POCKET21, SECTOR24, ROHINI, DELHI CONCLUDED BETWEEN PLAINTIFF AND DEFENDANT NO.2 AND FOR DECLARATION AND MANDATORY INJUNCTION AGAINST DEFENDANTS Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 2
1. This is a suit for relief of specific performance of contract, declaration and mandatory injunction. Facts as stated in the plaint are that defendant no.1 being widow of Late Sh.Padam Sen who was originally allottee from DDA of plot no.141, Pocket21, Sector24, Rohini, Delhi (herein after referred as suit property) acquired the said property after children of defendant no.1 and Late Sh. Padam Sen issued NOC/ relinquishment in favour of defendant no.1 as such defendant no.1 and hence became absolute owner of suit property. DDA stated to have executed a perpetual lease deed regarding suit property with defendant no.1 on 17.10.1997. It is stated that defendant no.1 being exclusive owner in possession of suit property sold the same in favour of plaintiff, sometime in second week of October 1997 through one Raj Kumar s/o Late Om Prakash Gupta and Hari Om Jindal s/o Sh. R.D. Jindal (who were property dealers). It is stated that defendant no.1 having sold the suit property to plaintiff on 17.10.1997 as such denuded from having any right in suit property from the date of sale as defendant no.1 had also received full payment of sale consideration as plaintiff paid Rs.97000/ by DD No.009337 dated 17.10.1997 and also paid Rs.98000/ vide pay order no.009336 dated 17.10.1997 as such paid Rs.1,95,000/ both drawn on Central Bank of India. It is stated that said sale consideration amount was duly credited to the account of defendant no.1 by due clearance.
It is further averred in the plaint that from the documents of sale made by defendant no.1 in favour of plaintiff, GPA and Will were duly registered on 17.10.1997 when plaintiff and defendant no.1 attended and completed the registration formality before sub registrar. It is stated that after the said sale, defendant no.1 divested of all ownership rights in suit property and transfered the benefit and perpetual lease hold rights unto plaintiff as such though substantially made the part performance but only role remained on the part of defendant no.1 was to cooperate regarding transfer of ownership in favour of Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 3 plaintiff in records of DDA and other concerned Govt. departments.
It is further stated in the plaint that from time to time as a matter of changing in govt policy, plaintiff had bonafide belief that DDA /Govt of NCT would be coming out with policy, declaring abolishing of lease hold system and automatically conferring free hold rights to original allottees/ transferees of properties holding registered GPA, Will etc. It is stated that in year 2003 Govt of India announced the scheme of conversion of industrial and commercial properties to free hold upon payment of prescribed fees and other formalities. It is stated that it was anticipated that Govt will also introduce the conversion scheme for residential plot as such plaintiff and defendant n o.1 anticipated such scheme for automatic conversion of residential property to free hold or upon payment of charges with minimal formalities. It is stated that all along this period defendant no.1 always owned the transaction of sale of suit property and always expressed and ready and willingness to execute any further document required.
It is further averred in the plaint that in the second half of year 2006 original file of plaintiff regarding purchase of suit property were stolen from one unoccupied flat of plaintiff at 59/A2, Second Floor, Sector5, Rohini. Plaintiff stated to have come to know about loss/ removal those titled documents of suit property (alongwith certain other title deeds of some other properties), in second week of January 2007 and upon which a police complaint was lodged on 15.01.2007 with police post Vijay Vihar, Sector4, Rohini, Delhi. Plaintiff also intimated defendant no.2 (DDA) against possible misuse and applied for certified copy of registered GPA and Will on 22.01.2007 and also applied for inspection of record before concerned sub registrar on 06.02.2007 with the intention to obtain the certified copy of registered GPA and Will, which was executed by defendant no.1 in favour of plaintiff on 17.10.1997. It came to the knowledge of plaintiff that perpetrators of theft of above mentioned titled documents had also allegedly torn out those titled documents illegally out of ROC office record. Although, entries in the govt. department register at serial Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 4 no.44 were there to corroborate the execution and registration of such document. It is stated that anticipating the possible misuse of those stolen document plaintiff wrote to concerned sub registrar requesting for no change for ownership of suit property.
It is further stated in the plaint that criminal proceedings were also initiated as FIR no. 369 dated 06.03.2007 was registered with concerned police authorities, during the investigation of the said case defendant no.1 made categorical statement to the IO of that FIR affirming the sale of suit property in favour of plaintiff. Defendant no.1 also denied any dealing of sale regarding suit property with the accused in that case namely Pooja Aggarwal. It is stated that said Pooja Aggarwal falsely claiming to have purchase the suit property from defendant no.1 in year 2001. It is alleged that taking un warranted advantage of theft of original documents of plaintiff regarding acquiring of suit property by plaintiff from defendant no.1, one Pooja Aggarwal has been claiming to be owner of the suit property under a sale purchase transaction which is in fact is bogus and also being subsequent in point of time and thus has no legal relevance. It is stated that alleged transaction in favour of Pooja Aggarwal was in pure cash and was on the same value as plaintiff paid. Wheres plaintiff made the payment of sale consideration by bank draft. It is further alleged that witness to alleged transaction in favour of Pooja Aggarwal's documents are not traceable. Moreover, those documents were notarized and attesting notary denied regarding attestation moreover, even Manorama (defendant no.1) has also denied the alleged transaction of sale in favour of Pooja Aggarwal.
It is further stated that said Pooja Aggarwal had filed a false and concocted suit for injunction against the husband of plaintiff. It is stated that despite being conveyed that plaintiff and not her husband is the owner of suit property, said Pooja Aggarwal still did not agitate her right over the suit property vis a vis plaintiff in suit property. It is stated that despite lodging of the FIR plaintiff waited for substantial period of time but police investigation could not be Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 5 completed therefore, upon a criminal writ petition filed by the plaintiff investigation of said case stood transferred to crime branch and then charge sheet was filed. It is stated that thereafter, plaintiff was advised that she has no other remedy except to file the suit for appropriate decree/ directions for specific performance of said transaction for defendant no.1 to execute affirmative documents regarding suit property and for obtaining necessary clearance / NOC from DDA for recording in its record regarding sale of suit property by defendant no.1 in favour of plaintiff. It is alleged that defendant no.1 did not cooperate despite having sold the property in question to plaintiff and having realized and enjoyed the full sale proceeds. Defendant no.1 was called upon by legal notice dated 18.01.2010 duly served upon to her by registered AD to execute the documents for affirming the same hence the present suit was filed with the prayer for decree of specific performance of contract of sale regarding suit property i.e plot no.141, Pocket21, Sector24, Rohini, Delhi. In terms of earlier document dated 17.10.1997 between plaintiff and defendant no.1 and also for obtaining necessary clearance/ NOC from DDA for recording in the public record of DDA regarding sale of suit property by defendant no.1 in favour of plaintiff. It is also prayed that in case defendant no.1 does not cooperate to execute such documents then court may appoint its officer to do the needful in this regard. Plaintiff has also prayed for decree of declaration, declaring that defendant no.1 having sold/agreed to sell suit property to plaintiff and having realized the full sale consideration is bound to execute affirmatory documentation and to obtain necessary clearance from DDA and also to get register a proper sale deed in favour of plaintiff on account of the fact the original document executed by defendant no.1 in October 1997 have stolen / unavailable and thus defendant no.1 is bound to execute another set of documents affirming the earlier sale as took place on 17.10.1997. Plaintiff has also prayed for declaration that defendant no.1 having completed the sale transaction therefore, no person claiming through or under defendant no.1 has any right in the suit property after Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 6 17.10.1997. Plaintiff has also prayed for decree of mandatory injunction directing defendant no.2 DDA to declare the suit property as free hold on compliance of required formalities by defendant no.1 or by court officer to be appointed by the court in this regard and also to grant NOC for registration of regular sale deed.
2. After filling the present suit, defendant no.1 did not appear despite being served by summons and thus was proceeded exparte vide order dated 19.07.2010.
3. Defendant no.2 (DDA) after being served with the summons filed the WS taking the objection there in that suit is not maintainable and liable to be dismissed, it is pleaded that DDA is neither necessary nor the proper party. It is pleaded that plaintiff has concealed material facts. It is stated that in fact Sh. Padam Sen S/o Mittan Lal had applied for residential plot under "Rohini Residential Scheme" on 30.03.1981 and property in question i.e Plot No.141, Pocket21, Sector24, Rohini, Delhi was alloted to Padam Sen in draw lots held on 27.03.1993 and thereafter, DDA issued a demand cum allotment letter on 09.11.1993. It is stated that after the death of said Padam Sen, Ms. Manorama W/o Late Padam Singh (defendant no.1 herein) applied for the mutation of the property in question on 13.08.1997 on the basis of relinquishment deed executed in her favour by other legal heirs of Late Padam Sen, DDA allowed the mutation of property in question in favour of Ms. Manorama vide letter dated 19.08.1997 and physical possession of the said property was handed over by DDA to Ms. Manorama on 21.8.1997 and lease deed was executed in her favour on 10.09.1997. It is further pleaded in the WS that a application was received to DDA on 19.12.2006 from one Pooja Aggarwal for conversion of the property in question to free hold. On the basis of the GPA, agreement to sell executed in her favour, DDA stated to have also received a request letter dated Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 7 12.02.2007 and 14.02.2007 from Smt. Manorama and requested not to convert the property in question to free hold in favour of said Ms. Pooja Aggarwal. It is further pleaded that DDA received a notice u/s 93 Cr. PC from PS Sultan Puri in FIR no.369/07 on 06.03.2007 by which DDA was asked to hand over the original documents submitted by Ms. Pooja Aggarwal and accordingly, DDA handed over those documents to police vide letter dated 16.03.2007. DDA rejected the application of Pooja Aggarwal for conversion to the free hold vide letter dated 15.12.2008 on the ground that criminal case is pending investigation regarding the title of the property.
It is further pleaded in the WS that DDA has also received a notice from SIT/ Crime Branch on 02.07.2009 whereby DDA was asked to hand over original documents of allotment of property in question and after approval of the competent authority same were handed over to the police after retaining the copies. DDA has also taken the objection that suit is liable to be dismissed for want of documentary proof to establish the locus standi of the plaintiff. It is stated that suit is barred by limitation as well as for want of notice u/s 80 CPC and 50 of DDA Act. While other averments of the plaints have been denied on merits.
4. Plaintiff has filed the replication wherein all the facts as pleaded in WS of the DDA have been controverted and case of the plaintiff has been reaffirmed.
5. Considering the pleading as come on the record, Ld. Predecessor of this court vide order dated 16.08.2010 framed followings issues:
1. Whether the suit filed by the plaintiff is barred by period of limitation?
2. Whether the plaintiff is entitled for declaration against defendant no.1, declaring that defendant no.1 has sold the property to the plaintiff and has Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 8 not sold to any other person?
3. Whether the plaintiff is entitled for specific performance of contract for sell against defendant no.1 to execute the sale deed/ affirmative documents in favour of the plaintiff.
4. Whether the relief prayed by the plaintiff in prayer clause D is not maintainable in the eyes of law, as it is pre mature?
5. Whether the plaintiff is entitled for mandatory injunction?
6. Any other relief?
6. In order to establish her case, plaintiff has examined as many as five witnesses. PW1 is plaintiff Madhu Garg, PW2 is Raj Kumar Gupta, PW3 is Hari Om Jindal, PW4 is Devender Kumar UDC from Sub Registrar Office and PW5 is SI Attar Singh of Crime Branch. On behalf of DDA one witness namely S.S. Nagar Assistant Director (LAB) was examined as D2/W1.
7. I have heard Ld. Counsel for the plaintiff and defendant no.2 and has gone through the record carefully. My findings on each of the issues are followings.
8. ISSUE NO.1 "Whether the suit filed by the plaintiff is barred by period of limitation?"
This issue was settled on the objections taken by the DDA in its WS. It was argued by Ld. Counsel for DDA that the plaintiff is seeking the relief of declaration in respect of alleged sale which according to plaintiff has taken place in Oct. 1997 and present suit has been filed in the year 2010 so present suit of the plaintiff is barred by limitation as right to sue first accrued in 1997 and Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 9 therefore suit is not filed within 3 years from the date of accrual of cause of action. It is further argued that even for the relief of specific performance as prayed suit is not within limitation. On the other hand Ld. Counsel for plaintiff submit that though documents of sale were executed in year 1997 but as per case of the plaintiff those documents of sale were lost in second half of year 2006 and upon coming to know about this in January, 2007 plaintiff immediately lodged a police complaint on 15.01.2007 and thereafter file the present suit when she came to know that even documents from the record of ROC were also removed. It is stated that it is only when defendant no.1 despite service of legal notice dt. 18.01.2010 did not come up for executing the sale deed and for other proceedings as per the terms of agreement to sell then the present suit was filed in February,2010. As such suit is within limitation.
Having considered the submissions at bar and keeping in view the provisions of Article 54 and 58 of Indian Limitation Act it would be clear that for the relief of specific performance plaintiff can file the suit within three years from the date of performance and in case no date is fixed then suit can be filed within that duration from the date when plaintiff notice the refusal of performance. In the present case although plaintiff has taken the plea that original documents of sale like Agreement to Sell, GPA, Will etc. were stolen away but fact remains that the fact as pleaded in the plaint it is only when defendant no.1 did not cooperate with plaintiff to execute the sale deed despite service of legal notice suit was filed and in that sense I find that suit is within limitation. Similarly in respect of relief of declaration suit can be filed within three years of date of accrual of cause of action and in the present case cause of action accrued firstly when those documents of sale were lost and also from the date when defendant no.1 was served with the notice to perform other obligations under the alleged sale. Therefore taking the fact as stated in the pleadings, I find that suit is within limitation. Accordingly this issue stands decided in favour of the plaintiff.
Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 10
9. ISSUE NO.2 "Whether the plaintiff is entitled for declaration against defendant no.1, declaring that defendant no.1 has sold the property to the plaintiff and has not sold to any other person?"
The onus to prove this issue was on the plaintiff. Let us first discuss the evidence led on behalf of plaintiff. On behalf of plaintiff as stated above five witnesses were examined. PW 1 is plaintiff Ms. Madhu Garg who in his affidavit of examination in chief testified all those facts as pleaded in the plaint and has testified that defendant no.1 i.e. Ms. Manorama had sold the suit property in her favour and executed the documents like agreement to Sell alongwith registered GPA, registered Will and SPA. PW 1 says that she made the payment of sale consideration by demand draft of Rs. 97000/ and pay order of Rs. 98000/. The details of which is given in para 4 of the affidavit. PW 1 says that she made the total payment of Rs. 1,95,000/ regarding which receipt dt. 17.10.97 was also executed. PW 1 has further testified while stating various other facts that sometime in the second half of year 2006 above mentioned original documents of sale qua suit property were stolen from her unoccupied flat regarding which she came to know in second week of Jan. 2007 and therefore she lodged the complaint on 15.1.2007. PW 1 says that she immediately also sent intimation to DDA regarding possible misuse of certified copy of registered GPA and Will on 22.01.2007. Thereafter when she applied for the inspection of record of concerned subregistrar under Right to Information Act she came to know that those documents have been illegally torn out of ROC office. PW 1 has further testified that on her complaint criminal proceedings were initiated by way of FIR No. 369/2007. In the investigation of that case i.e. defendant no.1 Smt. Manorama made a categorical statement before the IO whereby she affirmed the sale of suit property in her favour. It is stated that PW 1 says that police after Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 11 completion of the investigation filed the charge sheet against Ms. Pooja Aggarwal and other accused persons. PW 1 says that taking the advantage of the theft of original documents of sale in her favour executed by defendant no.1, one Pooja Aggarwal has been claiming herself to be owner of the suit property under a sale purchase transaction which is bogus and fabricated. It is stated that since defendant no.1 has already sold the suit property in her name and has also taken the benefit of sale transaction amount given by plaintiff is required to execute affirmative documents and also to obtain necessary clearance from DDA for executing and registering a proper sale deed regarding which defendant was served upon a legal notice dt. 18.01.2010 but when she did not appear therefore she had filed the present suit.
PW 1 was duly cross examined. The relevant portion of her cross examination will be discussed little later. PW 2 is Raj Kumar Gupta, who has testified that he is into property dealing business and suit property i.e. Plot no.141, Block 21,Sec. 24, Rohini, Delhi was owned by Ms. Manorama and in the year 1997 in his presence as well as in the presence of one Hari Om Jindal said Ms. Manorama had sold the property to Smt. Madhu Garg and sale consideration was finalized to be Rs. 1,95,000/. Witness proved the draft of documents like GPA, SPA,Will and Agreement to Sell. PW 2 further testified that GPA, SPA, Will was registered through SubRegistrar, Pitrampura. Those draft of sale documents are Will is Ex.PW1/1, SPA is Ex.PW2/1, GPA is Ex.PW1/3 and Agreement to Sell is Ex.PW1/2. Witness has identified the points where he put his signatures in original documents of sale. PW 3 Sh. Hari Om Jindal has testified the same facts as deposed by PW 2 and he has also testified that draft documents of sale regarding suit property executed between the plaintiff and defendant no.1 are proper and same are similar as executed in his presence. This witness has also testified that he has given statement before police during investigation of the matter.
PW 4 is Sh. Devender Singh, UDC from SubRegistrar Office who Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 12 when appeared in the witness box has testified that he could not bring the same record of sale documents registered before office of SubRegistrar, Pitampura as that record is not traceable in the department, however, in his further evidence recorded on 13.8.12 PW 4 has testified that he has brought the peshi register and one letter dt. 13.8.12 of SubRegistrar and as per peshi register at page 147 it is mentioned regarding registration of SPA, GPA and Will all dt. 17.10.1997 executed by one Smt. Manorama Devi. Witness also proved the letter dt. 13.8.12 Ex.PW4/B written by SubRegistrar wherein it is mentioned that record regarding Will dt. 17.10.1997 registered on 10.11.1997 and regarding GPA and SPA executed and registered on 17.10.1997 are not traceable. Witness has also mentioned about the photostate copy of page no. 147 on pesi register regarding registration of will is Ex.PW4/2. PW5 SI Attar Singh who had registered the FIR No. 369/07, PS Sultanpuri and has testified that he has seen the documents Ex.PW1/D1 which is certified copy of the charge sheet. PW 5 says that during investigation of the said case it was revealed that defendant no.1 Ms. Manorama sold the property to the plaintiff and therefore said Ms.Manorama had given the statement Ex.PW1/D1. PW 5 further says that during investigation he had verified the record of SubRegistrar and found that Smt. Manorma had executed the documents in favour of plaintiff regarding which pesi register was found however those documents were missing. PW 5 says that during the investigation plaintiff also produced a letter of Central Bank of India regarding transfer of payment of Rs. 1,95000/ by two demand drafts from her account to the account of Ms. Manorama (defendant no.1). Said letter has been proved as Ex.PW1/D1.
Having appreciated the evidence led on behalf of plaintiff first of all it is necessary to mention here that defendant no.1 from whom plaintiff is claiming to have purchased the suit property has not contested the suit and was proceeded exparte. As such she had never filed the WS to either admit or deny the said sale in favour of the plaintiff. Another important aspect of the matter is Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 13 that plaintiff is relying upon documents like draft of GPA, SPA, Agreement to Sell and Will to establish sale in her favour. Evidently even if documents like Will, GPA are registered but these documents can not be considered to be a good document of title in respect of sale of immovable property. It is required that there must be a sale deed duly executed and registered in terms of provision of Section 17 of Indian Registration Act. Moreover, in view of judgment of Hon'ble Apex Court in "Suraj Lamp Industries (P) Ltd. Vs. State of Haryana (2012) SCC 656" it has been observed that "We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of GPA sales' or 'SA/GPA/WILL, transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an 17 end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
Thus, in view of the above said observation of Apex Court these documents can not be considered to be the documents of sale recognized under the law. Now if we appreciate the facts and circumstances and the evidence as come on record even from any angle do not I find plaintiff has been able to prove on record the sale of suit property by defendant no.1 in her favour.
It was argued by Ld. Counsel for plaintiff that during those days sale deed was not being registered,even than also I find that sale of suit property by Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 14 defendant no.1 in favour of plaintiff as claimed has not been proved even by preponderance of probability. Firstly because accordingly to plaintiff documents of sale like GPA, SPA, Agreement to Sell were executed on 17.10.97 but these original documents were stolen in the later part of the year 2006 and thereafter those documents which were registered before SubRegistrar were also found missing from record. If such was the situation first of all it is important to note that from whole of the evidence of plaintiff and all other witnesses it has not been proved that plaintiff was owner in possession of the suit property, although according to plaintiff sale documents were executed on 17.10.97 and thereafter defendant no.1 completely divested her ownership right in the suit property and transfer it to plaintiff. Obvious question arises as to whether plaintiff was in possession of the suit property since the execution of those documents on 17.10.1997, surprisingly neither plaintiff nor PW 2 and 3 have testified even a single word regarding the possession of the plaintiff in the suit property nor plaintiff has establish her possession in the suit property by any documentary or oral evidence. One can appreciate that there may be a situation when original documents of sale might have stolen or misplaced as alleged by plaintiff in present case but since any fact can be proved either by direct or circumstantial evidence. In present case if according to plaintiff she had purchased the suit property way back in year 1997 and was waiting for Govt. to come up with some policy to convert lease hold property into free hold and therefore some of the obligation under such sale documents were kept pending but plaintiff was required to establish that after the said sale she was in possession of the suit property, which she has completely failed to do. It is nowhere testified in the evidence that since 17.10.97 till filing of the suit at any point of time plaintiff was in possession of the suit property. This aspect of the matter becomes even very important because from 17.10.97 till later part of year 2006 when according to plaintiff original documents of sale were stolen there was no dispute regarding the suit property if for period of about six years there Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 15 was no dispute regarding the suit property the transaction of sale could have been proved atleast by way of her possession in the suit property. Taking the facts as alleged by plaintiff on face of it, even if documents of sale, were stolen and registered documents were also misplaced but possession of plaintiff, would have been one of circumstance to corroborate her claim. It is also important that the provision of Section 110 of Indian Evidence Act which give presumption of ownership in favour of one who is in possession therefore if according to plaintiff original document of sale were lost the best possible evidence to establish the sale between plaintiff and defendant no.1 would have been to establish her possession in the suit property beside other evidence.
Second important aspect of the matter is that plaintiff has filed the present suit only against defendant no.1 Manorama and DDA. Plaintiff has not made said Ms. Pooja Aggarwal as party in the present suit. Be that as it may if according to plaintiff defendant no.1 had sold the suit property in her favour and has also admitted this fact even during the investigation of the case FIR No. 369/07 in that eventuality even if original sale documents were lost even from the record of ROC still factum of sale by defendant no.1 in favour of plaintiff could have been proved by calling upon defendant no.1 in witness box. It has also been mentioned above that defendant no.1 has not contested the present suit and has also not filed the WS to admit or deny the alleged sale in favour of plaintiff, in such situation it was even more important and necessary for plaintiff to call upon defendant no.1 in witness box. Even if she was proceeded exparte and was not participating in the proceeding of the present suit. In this regard reference can be given of judgment "Awadh Kishore Singh and Anr. Vs. Sri Brij Bihari Singh & Ors. AIR 1993 Patna 122" in which facts were more or less similar and it was held that "No provision could be brought to our notice on behalf of any of the parties to show that a party is debarred from examining its adversary as a witness on his behalf. A plaintiff can examine any witness he so likes the witness may be a stranger, may be a man of his own party himself or Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 16 may be a defendant or his man. Therefore, if a plaintiff wants to examine a defendant as a witness on his behalf he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor upon appearance filed written statement nor prayer for filing written statement has been rejected.
Thus from the above discussion of the judgment there can not be any dispute regarding legal preposition that one party to the suit can be called upon in the witness box at the instance of the other party of the same suit. In the facts of the present case it was even more important for plaintiff to establish the alleged sale in her favour, documentary evidence regarding sale no doubt could have been proved also by primary evidence or by secondary evidence. In the present case when according to plaintiff original documents of sale were misplaced from her another flat and record regarding registration of documents before SubRegistrar was also not traceable, in such situation when documents of sale have not been proved by some concrete evidence and only sought to be proved by draft of those documents I find that those drafts can not be proved to be the same which were original documents of sale unless the executor of the same comes in the witness box. Draft of the sale documents Ex.PW1/1, PW2/1, PW1/3, PW1/2 are those drafts which could have been proved only by Ms. Manorma (defendant no.1) if she would have been called in the witness box. Reference in this regard can also be given of other judgments "M.C.Anand Vs. M.C.Chikkanna,2002(3) RCR (Civil) 162" wherein Hon'ble Karnatka High Court while referring to the provision of Order 16 rule 21 has held that plaintiff could summon the defendant as a witness and can also required him to produce the documents. Reference can also be given of judgment of "Dinanath and Ors. Vs. Shanti Devi (2006) 142, DLR 456" in which Hon'ble Punjab & Haryana High Court has held that if there are very good reasons for summoning the opposite party as witness then said party can be summoned as witness to prove out the truth. Thus from the meaningful reading of the ratio laid down in the above Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 17 discussed judgments and in the facts and circumstances of the case when plaintiff has not made even any effort to call upon defendant no.1 in the witness box to prove the alleged documents of sale I find that said non examination of defendant no.1 casts serious doubt regarding establishing of sale transaction between plaintiff and defendant no.1.
Ld. Counsel for plaintiff has vehemently relied upon the statement of defendant no.1 recorded u/s 161 Cr.P.C. during the investigation of the case and has submitted that defendant no.1 has herself admitted the sale transaction and has also given the statement before the police that she had sold the suit property in favour of the plaintiff. No doubt reading the evidence of PW 5 it would be clear that during the investigation Manorama (defendant no.1) had stated that she had executed the sale document in favour of plaintiff. This fact no doubt has some force to establish the case of the plaintiff but a closer scrutiny of evidence it would be clear that said fact is not sufficient in law to establish the sale in favour of plaintiff. Any statement given before the police u/s 161 Cr.P.C. can not be admissible as evidence and this can not be made only basis to prove the same. While subsequently when the person who is giving the statement has not appear in the witness box.
Another fact which plaintiff has sought to establish is payment of Rs. 195000/ by two demand drafts. Again this fact also create some force to prove the alleged sale in favour of plaintiff but merely depositing of Rs. 195000/ in the account of defendant no.1 from the account of plaintiff in itself is not sufficient that such payment was only for transaction of sale and was a payment of sale consideration and nothing else. In Civil proceedings evidence has to be evaluate far more differently then in other proceedings, where one party claim to have become owner by way of purchasing any property. He is required to establish by preponderance of probability his title in the suit property by all legally admissible evidence and not only on the basis of remote inferences. Any fact of sale of immovable property has to be established and proving by maximum probability Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 18 evidence and it is well known preposition of law that court will admit best evidence regarding any fact. In the fact of the present case to establish the sale in favour of plaintiff the best evidence would have been the possession of the plaintiff and the evidence of defendant no.1 regarding the executing of sale documents dt. 17.10.1997. even if those original documents would have been misplaced. Since, the plaintiff has withheld the best of the evidence to establish the sale in her favour therefore adverse inference can be drawn against her in view of provision of Section 114 of Indian Evidence Act.
Another aspect of the matter is peshi register ex.PW4/1 and PW4/2 as well as the report of SubRegistrar Ex.PW4/3. These documents did not show that defendant no.1 executed these documents in favour of plaintiff. Taking these evidence like pesi register and report of SubRegistrar only establish that Manorama (defendant no.1) had presented and executed as well as got registered documents like SPA, GPA and Will it has not been establish from documents Ex.PW4/1, Ex.PW4/2 and Ex.PW4/3 that those documents were executed in favour of plaintiff and assuming that those documents were executed in favour of plaintiff still execution and registration of those documents has not been proved sale of suit property and can not convey the title in favour of plaintiff.
Thus after evaluating the evidence of plaintiff as come on record I find that plaintiff has failed to establish sale of suit property by defendant no.1 in her favour and therefore plaintiff could not establish the relief of declaration to this effect. Accordingly this issue stands decided against the plaintiff and in favour of the defendant.
10. ISSUE NO.3 "Whether the plaintiff is entitled for specific performance of contract for sell against defendant no.1 to execute the sale deed/ affirmative documents in favour of the plaintiff"
Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 19 The onus to prove this issue is also on the plaintiff. It must be kept in mind that relief of giving direction for specific performance of contract is an equitable relief. Keeping in view the provision of Section 20 of Specific Relief Act and appreciating the evidence of the plaintiff this court has already held that factum of sale between defendant no.1 and plaintiff has not been established even by preponderance of probability for the reasons as discussed above while deciding issue no.2. Since the very transaction of sale between plaintiff and defendant no.1 has not been established I find that directions for specific performance of contract for sale can not be given. Specifically when taking the evidence of plaintiff, PW1 in totality it is not establishing execution of any agreement to sell. Consequently in view of my finding on issue no.2, issue no.3 is also decided against the plaintiff.11. ISSUE NO.4 AND 5
"Whether the relief prayed by the plaintiff in prayer clause D is not maintainable in the eyes of law, as it is pre mature?"
"Whether the plaintiff is entitled for mandatory injunction?"
In prayer clause 'D' plaintiff has sought a relief of mandatory injunction for giving direction to DDA (deft. no.2) to declare the suit property as free hold on compliance of required formalities by defendant no.1 and for that purpose plaintiff also sought the appointment of court official for registration of regular sale deed in respect of suit property. In view of the prayer as sought since it has not been established that there was any sale transaction between plaintiff and defendant no.1 in respect of suit property, question of giving direction to DDA for converting the suit property into free hold is based on a policy formulated by the Govt. under which specific requirement are to be Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 20 fulfilled, therefore, in the absence of any evidence in this regard no such direction by way of mandatory injunction can be given. Therefore, in view of above said reasons both issue no.4 and 5 are also decided against the plaintiff.
12. RELIEF In view of my findings on issue no.2 to 5 I find that plaintiff has not been able to establish her case. As a consequences thereof suit of the plaintiff stands dismissed. Decree sheet for dismissal be prepared accordingly. File be consigned to record room.
Announced in the open court On 04.07.2013 (SHAILENDER MALIK) SCJ/RC,NW/ROHINI COURTS/DELHI Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 21 Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama 22 SUIT NO. 154/13 01.07.13 Present. None I have dictated substantive portion of the judgment, however, no time left for completing the judgment so put up this case for orders on 4.07.13.
(SHAILENDER MALIK) SCJ/RC,NW/ROHINI COURTS/DELHI 01.07.13 04.07.13 Present. None.
Vide my separate judgment of even date suit of the plaintiff is dismissed. Decree sheet for dismissal be prepared accordingly. File be consigned to record room.
(SHAILENDER MALIK) SCJ/RC,NW/ROHINI COURTS/DELHI 04.07.13 Suit no. 154/13 Smt. Madhu Vs. Smt. Manorama