Delhi District Court
Ms. Krishna Devi vs Sh. Sanjay on 11 November, 2021
IN THE COURT OF SH. UMED SINGH GREWAL
ADDITIONAL DISTRICT JUDGE02 (WEST)
TIS HAZARI COURTS, DELHI
CS No. 609741/16
CNR No. DLWT00003932012
Ms. Krishna Devi
S/o Late Sh. Ram Chander,
R/o 97, Sector1, R.K. Puram,
New Delhi110022. ...Plaintiff
Versus
1. Sh. Sanjay
R/o D2A/62A, (LIG Flats),
Janakpuri,
New Delhi.
2. Sh. D.K. Massey,
S/o Sh. Biwa Ram
R/o D2A/62A, (LIG Flats),
Janakpuri,
New Delhi.
Also at:
D.K. Massey (Loader),
Staff No. 23211,
Air India (G.S. Deptt.),
I.G.I.A., Terminal2,
New Delhi110032. ...Defendants
Date of institution of suit : 23.07.2012
Date of reserving Judgment : 18.10.2021
Date of pronouncement of judgment : 11.11.2021
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 1 of 25
JUDGMENT
1. This judgment shall decide the suit for possession, damages, permanent and mandatory injunctions.
2. Plaintiff's case is that her brother Sh. Ram Nath was owner of property bearing no. D2A/62A, LIG flats, Janakpuri, New Delhi (hereinafter referred to as suit property). The defendant no. 2 used to work with him as loader and both were bosom friends. The defendant no. 2 was in dire need of temporary accommodation and hence, her brother allowed him to reside in the suit property without any rent i.e. on licence. He had undertaken to vacate it as soon as he got proper accommodation. But when he failed to keep his words, Sh. Ram Nath asked him on 15.01.2010 to vacate the suit property. After her brother's death on 05.03.2010 in mysterious circumstances, she asked him to vacate the house. Initially, he assured to vacate the same, but later he started saying that his brother/defendant no. 1 was owner of the suit property and that he was paying rent to him regularly.
After the death of Sh. Ram Nath, the suit property was inherited by her, his brothers, sister and mother. But they relinquished their shares in her favour consequent to which the same has been mutated in her name in DDA records. The defendants are still not vacating it and are in illegal possession thereof. They have forged MOU, rent agreement and payment receipts for which FIR No. 5/12 was registered against them in PS Mayapuri.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 2 of 253. Joint written statement is to the effect that the defendants were friends of Sh. Ram Nath and in that capacity, the defendant no.1 took on rent the suit property on 12.04.1994 at the rate of Rs. 1000/ per month and also a refundable security of Rs. 10,000/ was deposited with Sh. Ram Nath. The tenancy kept going on and the defendant no.1 kept paying the rent regularly. But Sh. Ram Nath had some financial difficulty and hence, the defendant no. 1 lent him Rs. 40,000/ on 22.10.2004 which he could not repay. Due to continuing financial difficulty, he proposed to sell the suit property to defendant no. 1 in Rs. 20 lacs in installments and the proposal was accepted on 05.02.2005. Memorandum of Understanding was executed by Sh. Ram Nath in favour of defendant no. 1. An amount of Rs. 1,20,000/ was given to him on that very day. It was decided that the outstanding loan of Rs. 40,000/ was also part of sale consideration. It was further decided that from that day onwards i.e. from 05.02.2005, the defendant no. 1 would not be treated as tenant in the suit property and rather, he would be taken as owner. He made following payments to Sh. Ram Nath:
(a). Rs. 90,000/ on 13.07.2005;
(b). Rs. 2,50,000/ on 18.04.2006;
(c). Rs. 1,60,000/ on 11.10.2006;
(d). Rs. 5,00,000/ on 12.12.2007;
(e). Rs. 1,20,000/ on 05.05.2008;
(f). Rs. 3,80,000/ on 17.12.2008.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 3 of 25Sh. Ram Nath unfortunately expired on 05.03.2010 and hence, the remaining amount of Rs. 3,40,000/ could not be paid. But he was/is ready to pay the balance amount to his legal heirs.
Sh. Ram Nath had executed various payment receipts in favour of defendant no. 1 which were in possession of his son Sh. Lavish Kumar @ Monu who met with an accident in the night of 04.11.2011 at Walipura Canal, U.P. while returning to Delhi after attending a marriage function when his car was hit by a canter which was being driven rashly and negligently. A person lost his life and Lavish Kumar is still missing. The receipts were with him and hence, he cannot produce original payment receipts. Regarding that accident, FIR No. 638/2011 was registered in PS Kotwali, District Bullandshahar, U.P., under sections 279/337/338 IPC.
4. Contents of plaint have been reiterated in replication. It is further mentioned that Sh. Ram Nath never let out suit property to defendant no. 1 at any point of time. He did not execute any MOU on 05.02.2005. He did not receive any amount from him. He had no occasion to sell the suit property as he had sufficient fund in his Indian Overseas Bank account from 2003 and till his death. The signatures appearing on MOU and rent agreement are not of Sh. Ram Nath and rather, in conspiracy with each other, both defendants have fabricated those documents. Lastly, it is submitted that the MOU is an unregistered document and it confers no right, title or interest upon the defendants.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 4 of 255. Following issues were framed on 13.05.2013: (1). Whether the present suit is barred u/s 53A of Transfer of Property Act? OPD.
(2). Whether the plaintiff has no cause of action to file the present suit? OPD.
(3). Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP.
(4). Whether the plaintiff is entitled to a decree of damages/mesne profits, if yes, at what rate and for what period? OPP.
(5). Whether the plaintiff is entitled to a decree of mandatory injunction? OPP.
(6). Whether the plaintiff is entitled to a decree of permanent injunction? OPP.
(7). Relief.
6. In order to substantiate the case, the plaintiff examined ten witnesses.
7. PW7 Ms. Krishna Devi is plaintiff herself and she repeated the contents of plaint in her affidavit in evidence Ex.PW7/A. She relied upon following documents:
(i). Ex.PW7/1 is copy of letter of mutation (exhibit mark not given on document);
(ii). Ex.PW7/2 is copy of relinquishment deed (exhibit mark Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 5 of 25 not given on document);
(iii). Ex.PW7/3 is copy of site plan;
(iv). Ex.PW7/4 is notice of disconnection dated 01.04.2011;
(v). Ex.PW7/5 is copy of notice of disconnection dated 05.04.2011 (exhibit mark not given on document);
(vi). Ex.PW7/6 (mentioned as Ex.PW1/1) is copy of suit;
(vii). Ex.PW7/7 (mentioned as Ex.PW1/2) is copy of WS;
(viii). Ex.PW7/8 (colly.) is the copy of passbook for the year 2003 till the date of Sh. Ram Nath (exhibit mark not given on document);
(ix). Ex.PW7/9 & Ex.PW7/10 are copy of police complaint and FIR (exhibit mark not given on document);
(x). Ex.PW4/A is copy of letter of mutation (already exhibited in the evidence of PW4);
(xi). Ex.PW4/B is copy of relinquishment deed (exhibit mark not given on document);
(xii). Ex.PW5/1 is the statement of account of Sh. Ram Nath having account no. 091901000001051 w.e.f. 01.04.2004 (exhibit mark not given on document);
(xiii). Ex.PW3/1 is the report of SHO regarding which the record of DD No. 48B dated 09.12.2010 was destroyed by the order of Addl. DCP/West, vide no. 1785 dated 23.04.2014 (exhibit mark not given on document);
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 6 of 258. PW6 Sh. Desh Bandhu Gosain, UDC from the office of Sub RegistrarII, Basai Darapur placed on record relinquishment deed Ex.PW4/B which was registered in his office on 25.05.2010 as document no. 12700, in Additional Book No. 1, Vol. No. 17681 at page nos. 102 and 203.
PW5 Sh. Brijesh Kumar from Indian Overseas Bank, placed on record the statement of account of Sh. Ram Nath having account no. 091901000001051 w.e.f. 01.04.2004 as Ex.PW5/1 (10 pages).
PW4 Sh. Ram Kumar Singh from DDA, filed record of the suit property which was allotted to Sh. Ram Nath vide letter dated 26.08.1985. He deposed that Smt. Krishna Devi had filed an application on 01.06.2010 for transfer of flat in her name. The application was supported by death certificate of Sh. Ram Nath, affidavit of Smt. Krishna Devi, registered relinquishment deed, undertaking, indemnity bond and ration card. Vide order dated 06.08.2010, the request of the lady was allowed and suit property was transferred in her name and a mutation letter dated 23.08.2010 Ex.PW4/A was issued to her.
9. PW1 Sh. Kuldeep Kumar, LDC, Record Room (Civil), brought the file of case no. 260/2011 titled as Krishna Devi Vs. D.K. Massey which was dismissed as withdrawn on 09.07.2012. He proved the plaint and written statement of that case as Ex.PW1/1 and Ex.PW1/2 respectively.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 7 of 2510. PW3 SI Santosh Kumar was summoned to prove the record of DD No. 48B dated 09.12.2010, but the same has been weeded out. It is pertinent to mention that the said DD was registered on the complaint of plaintiff against defendants.
PW2 Ms. Bhawna, LDC from the court of Sh. Pankaj Arora, Ld. MM05 (West), brought the case file of FIR No. 5/12, PS Sultanpuri, titled as State Vs. Dinesh Kumar @ D.K. Massey. She compared the photocopy of the documents Ex.PW2/1 (30 pages) with the original file and found the same as true and correct.
PW8 Sh. Yogender Singh, Ahlmad from the court of Sh. Pankaj Arora, Ld. MM05 (West), proved FIR No. 5 dated 12.01.2012, PS Mayapuri as Ex.PW8/1.
PW9 (wrongly mentioned as PW8), HC Ramod, brought the register containing FIRs from No. 01 to 50 of the year 2000 and in this way, he placed on record copy of FIR No. 5/12 as MarkB. PW10 Inspector Prabhu Dayal deposed that the investigation of FIR No. 5/12 was initially assigned to ASI Prahlad Singh and thereafter, it was marked to SI Amit Kumar and then it was assigned to him as third and last IO. He deposed that during investigation, he examined three independent witnesses namely Sh. Naresh, Navajish and Sh. Maan Singh. They told voluntarily that the suit property was of Sh. Ram Nath. He next deposed that SI Amit Kumar had sent MOU for expert opinion regarding the specimen signature of Sh. Ram Nath and the FSL report is to the effect that Sh. Ram Nath's signatures were fake. So, he arrested both the defendants and filed chargesheet against Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 8 of 25 them.
11. The defendant examined eight witnesses.
12. DW1 is defendant no. 1 himself and he deposed in affidavit in evidence that he and his brother/defendant no. 2 were friends of Sh. Ram Nath who was owner of the suit property. He took on rent the suit property at a monthly rent of Rs. 1000/ and also paid the refundable security of Rs. 10,000/ and rent agreement was executed. Due to financial constraint, Sh. Ram Nath took a loan of Rs. 40,000/ from him on 22.10.2004 and later, agreed to sell him the suit property in Rs. 20 lacs, for which MOU was executed by Sh. Ram Nath in his favour on 05.02.2005. An amount of Rs. 1,20,000/ in cash was given to Sh. Ram Nath on that very day as part payment and the remaining amount was payable in installments. He next deposed that till 17.12.2008, he had paid Rs. 16,60,000/ and an amount of Rs. 3,40,000/ remained outstanding due to unfortunate death of Sh. Ram Nath on 05.03.2010. He reiterated that he is ready and willing to pay the remaining sale consideration to the legal heirs of Sh. Ram Nath. Then he deposed about the loss of receipts vide which the sale consideration was paid to Sh. Ram Nath. He next deposed that a false case was registered against him and his brother by police of PS Mayapuri. He relied upon following documents:
(i). Ex.DW1/3 is seizure memo;
(ii). Ex.DW1/5 to Ex.DW1/9 are carbon copy of letters dated Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 9 of 25 26.05.2011, 28.03.2011, 27.05.2011, 23.04.2010 & 27.05.2011;
(iii). Ex.DW1/10 to Ex.DW1/12 are copies of payment receipts;
(iv). Ex.DW1/13 to Ex.DW1/15 are copy of FIR, intimation and newspaper article;
(v). MarkA is copy of rent agreement dated 12.04.1994;
(vi). MarkB are MOU with receipt dated 05.02.2005;
(vii). MarkC is copy of his identity card.
DW3 Smt. Kanta Devi is sister of the defendants and she deposed that her brother Sanjay Kumar had taken the suit property on rent which was later sold to him by the erstwhile owner. The rent of the suit property was paid through her cheques drawn on Canara Bank, Ganesh Nagar Branch with following particulars: S. No. Dated Cheque No. Amount (Rs.)
1. 15.06.1999 405041 6,000.00
2. 17.12.1999 405056 3,000.00
3. 18.02.2000 458241 6,000.00
4. 24.04.2000 458254 4,000.00
5. 18.03.2000 454244 3,000.00
6. 21.09.2000 454260 3,000.00
7. 27.10.2000 794221 3,000.00
8. 14.11.2000 794224 3,000.00
9. 03.01.2001 794229 3,000.00 Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 10 of 25
10. 16.01.2001 794231 3,000.00
11. 27.02.2001 794234 3,000.00
12. 22.03.2001 794236 3,000.00
13. 07.05.2001 3,000.00
14. 13.06.2001 838046 5,000.00
15. 21.07.2001 838049 3,000.00
16. 18.08.2001 838052 3,000.00
17. 26.09.2001 838055 3,000.00
18. 10.11.2001 802103 3,000.00
19. 19.02.2001 802112 3,000.00
20. 27.04.2002 802118 3,000.00
21. 09.05.2002 354042 3,000.00
22. 31.01.2003 301488 3,000.00
23. 11.12.2003 240830 4,000.00
24. 11.11.2004 657539 3,000.00
25. 11.11.2004 696985 3,000.00
26. 02.05.2006 432710 3,000.00
27. 17.03.2007 135303 10000.00
28. 15.05.2008 00449309 3,000.00
29. 22.11.2008 002302793 21,000.00
30. 15.01.2009 00023905 3,000.00
31. 15.10.1999 405050 3,500.00
32. 20.11.1999 405053 3,000.00
33. 22.06.2000 458251 10,000.00
34. 14.07.2000 458254 4,000.00
35. 29.11.2002 354060 4,000.00
36. 08.03.2003 301491 3,000.00 Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 11 of 25
37. 03.04.2003 301495 3,000.00
13. DW4 Sonu Sharma from Canara Bank, placed on file the statement of account and account opening form of Smt. Kanta Devi as Ex.DW4/1 (colly.).
DW5 Sh. Parminder Kumar from DDA produced the file of the suit property which contains the application dated 01.06.2010 filed by plaintiff for mutation in her name. The application was accompanied by her affidavit, relinquishment deed, undertaking, indemnity bond, death certificate of Sh. Ram Nath, ration card, Voter I card and photographs Ex.DW5/1 (colly.). He deposed that the mutation was allowed in her favour and communication was sent vide letter dated 23.08.2010 Ex.DW5/2. The noting dated 27.06.2010, 03.07.2010, 15.07.2010, 27.07.2010, 12.08.2010 are Ex.DW5/3 (colly.).
DW6 Sh. Ram Narain is witness to Memorandum of understanding Ex.DW2/2 dated 05.02.2005. He deposed that the MOU bears his signature at pointB. The receipts dated 11.10.2006, 12.12.2007 and 17.12.2008, Ex.DW1/10, Ex.DW1/11 and Ex.DW1/12 respectively were bearing his signatures at pointsX, Y & Z. He concluded the evidence by deposing that these documents were executed in his presence and payment was also made before him.
DW7 Sh. Vinod Kumar, Branch Manager, Syndicate Bank was invited to witness box to produce statement of saving account no. 90792180006649 from 02.05.2005 to 23.05.2005. But that record has Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 12 of 25 been weeded out.
DW8 Sh. Dharamender Sharma, Dy. Director, Housing Branch LIC, DDA deposed about the mutation of the suit property in favour of plaintiff.
Issue No. 1: (1). Whether the present suit is barred u/s 53A of Transfer of Property Act? OPD.
14. Ld. counsel for the defendants argued that the defendant no.1 had entered into the suit property as tenant on 12.04.1994 at a monthly rent of Rs. 1000/ and a refundable security of Rs. 10,000/ was also paid. Sh. Ram Nath had financial constraint and hence, he borrowed Rs. 40,000/ from him on 22.10.2004. He could not come out from dire straits and hence, he decided to sell the suit property to defendant no. 1 in Rs. 20 lacs and MOU was executed between them on 05.02.2005. An amount of Rs. 1,20,000/ was paid on that very day and earlier unpaid loan of Rs. 40,000/ was also agreed to be treated as part of sale consideration. The remaining amount was payable in EMIs. He further argued that till 17.12.2008, the defendant no. 1 had paid Rs. 16,60,000/ to Sh. Ram Nath and the outstanding amount was Rs. 3,40,000/. Unfortunately, Sh. Ram Nath expired on 05.03.2010 and hence, the remaining amount could not be paid to him. He next submitted that the defendant no. 1 is ready and willing to pay the balance consideration to the legal heirs of Sh. Ram Nath. Lastly, he submitted that while executing the MOU on 05.02.2005, it was decided Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 13 of 25 between the parties that since that day, defendant no. 2 would not be treated as tenant and rather, he would be taken as owner of the suit property. He further submitted that the defendant no. 1 was already in possession of the suit property and he continued so w.e.f. 05.02.2005 as owner. So, the case of the plaintiff is hit by section 53A of Transfer of Property Act, 1862 because defective no. 1 has already paid substantial portion of the sale consideration to Sh. Ram Nath. He remained in possession of the suit property in furtherance of that contact and that he is ready and willing to pay the balance consideration.
15. On the other hand, ld. counsel for the plaintiff argued that as per the case of defendant no. 1, Sh. Ram Nath had agreed to sell the suit property due to financial constraint. But it is quite surprising that the sale consideration was paid as per the whims and fancies of defendant no. 1. A person in need of money, would like to get the sale consideration in one go and not in parts. On the day when a loan of Rs. 40,000/ is said to have been advanced to Sh. Ram Nath, an amount of Rs. 5,28,059/ was in the credit of his bank account. So, there was no reason for him to take loan of Rs. 40,000/. He was living in joint family and so, his expenses used to be met by the family. Hence, he used to keep deposited the whole amount of each salary in his bank account. Had he been paid Rs. 16,60,000/, the said amount would also have been deposited in the bank account. But entry of that amount is missing in bank statement.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 14 of 25It is next argued that the defendants did not place on record the original of the receipts vide which the payment was made to Sh. Ram Nath. They have taken a false defence that same were lost when the car of son of defendant no. 1 fell into river. He further submitted that had such receipts been in existence, the same would have been filed by them alongwith the written statement in response to another plaint of plaintiff. Their detail was not mentioned in the list of documents filed by the defendants in that case. He next argued that regarding those receipts, the defendants had taken different stands before the IO for producing them. Next, it is submitted that the defendants did not obtain permission of the court to lead secondary evidence of the receipts Ex.DW1/10, Ex.DW1/11 & Ex.DW1/12 and hence, they cannot be taken into account.
Ld. counsel further argued that MOU was forged by both defendants and hence, an FIR was registered against them. They were arrested and remained behind bars for some days. The MOU was sent to FSL which came to the conclusion that the same was not bearing the signature of Sh. Ram Nath.
The last argument is that the MOU does not confer any right, title or interest upon the defendants in the suit property because the same has not been registered.
16. It is the case of the defendants that erstwhile owner Sh. Ram Nath had agreed to sell the suit property as he was passing through financial problem. He had taken a loan of Rs. 40,000/ on 22.10.2004 Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 15 of 25 which he could not pay. But the defendants have failed to prove that reason behind the sale. As per defendant no. 1, Sh. Ram Nath had taken a loan of Rs. 40,000/ on 22.10.2004. But the bank statement Ex.PW5/1 of the account of Sh. Ram Nath shows that an amount of Rs. 5,28,059/ was in his credit as on 01.04.2004. So much amount in his bank account suggests that Sh. Ram Nath was not in need of any money on 22.10.2004.
The bank statement further shows that small amounts were being credited into the account of Sh. Ram Nath regularly and that small amount was his salary. The credit in his account kept on increasing and in March 2010, it was Rupees twenty five lakhs. Such huge amount in his bank account from April 2004 till his death in 2010, shows that Sh. Ram Nath was never in financial constraint.
It is the admitted case of the defendants that the sale consideration was paid to Sh. Ram Nath in staggered manner. Any person in financial difficulty, would like to get the whole sale consideration in one go and not in parts. It is quite surprising that the sale consideration is said to have been given to Sh. Ram Nath from 2005 to 17.12.2008. Sh. Ram Nath died on 05.03.2010. After 17.12.2008, even as per the case of defendant no. 1, the balance sale consideration was Rs. 3,40,000/. There is no explanation with defendant no. 1 why he did not pay the balance sale consideration to Sh. Ram Nath from 17.12.2008 till his death.
In view of above discussion, it is held that the story propounded by the defendants that Sh. Ram Nath agreed to sell the Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 16 of 25 suit property, is absolutely false. That conclusion is further corroborated by the fact that the alleged payment of Rs. 90,000/, Rs. 2,50,000/, Rs. 1,60,000/, Rs. 5,00,000/, Rs. 1,20,000/ and Rs. 3,80,000/ to have been made on 13.07.2005, 18.04.2006, 11.10.2006, 12.12.2007, 05.05.2008 and 17.12.2008, is not finding place in the bank statement of Sh. Ram Nath.
17. The defendant no.1 did not place on record the original of receipts Ex.DW1/10, Ex.DW1/11 and Ex.DW1/12. The reason is that his son met with an accident on 04.11.2011. His car was drowned when he was returning to Delhi from U.P. after attending a marriage function. Those receipts were in the car.
As per his own case, the receipts are dated 13.07.2005, 18.04.2006, 11.10.2006, 12.12.2007, 05.05.2008 and 17.12.2008. The accident is said to have been taken place on 04.11.2011. The defendant no. 1 has no explanation why such vital documents were kept in the car and not in his house. Moreover, it is nowhere mentioned in the FIR of the accident that the son of the defendant no.1 had lost some of the documents in that accident.
It is the admitted case of the parties that plaintiff had filed another injunction suit against the defendants. In that case, the defendants had filed written statement on 19.09.2011. If the plea that receipts were lost in accident on 04.11.2011, is taken true, it can be said with certainty that the receipts were in existence on 19.09.2011 when the written statement was filed in the second case. But no Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 17 of 25 reference of the receipts was made in that written statement. Their reference was not even made in the list of documents. Had those documents been in existence, the same would have been referred in the written statement and list of documents as the original receipts are of vital probative value.
In criminal case, the IO had asked the defendants to produced original receipts. It is quite surprising that defendant no. 1 filed reply Ex.DW1/DA dated 14.06.2012 that he could not trace the original receipts and that he be given relaxation of two days. In earlier reply Ex.DW1/DE dated 09.10.2011, he had taken the plea that the receipts were available with his counsel. In reply Ex.DW1/DB dated 16.06.2012, his version was that he did not have original receipts and hence, he cannot produce the same. If the original receipts were lost in the accident on 04.11.2011, why he mentioned in reply Ex.DW1/DA on 14.06.2012 that he be given two days time to produce the same.
18. As per defendant no. 1, he made following payments to Sh. Ram Nath:
(i). Rs. 90,000/ on 13.07.2005
(ii). Rs. 2,50,000/ on 18.04.2006;
(iii).Rs. 1,60,000/ on 11.10.2006;
(iv). Rs. 5,00,000/ on 12.12.2007;
(v). Rs. 1,20,000/ on 05.05.2008;
(vi). Rs. 3,80,000/ on 17.12.2008.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 18 of 25Perusal of bank statement Ex.PW5/1 of Sh. Ram Nath shows that there are no corresponding entries. Further perusal shows that he used to deposit even the little amount in bank. He used to withdraw very less amount. It cannot be expected of him that he would not deposit amount of Rs. 16,60,000/ in bank account.
19. Despite taking the defence that the original receipts were lost in the accident, the defendants did not take permission of the court to lead secondary evidence. The receipts Ex.DW1/10, Ex.DW1/11 and Ex.DW1/12 are photocopies and due to non taking of permission to lead secondary evidence, the same are not admissible in evidence and in this regard, the case of the plaintiff is squarely covered by judgment of Hon'ble Apex Court titled as H. Siddiqui (dead) by Lrs. vs. A. Ramalingam, Civil Appeal No. 6956 of 2004 decided on 04.03.2011.
20. The police took into possession some documents from DDA and Indian Overseas Bank, which are bearing the signature of Sh. Ram Nath. It also took into possession the rent agreement dated 12.04.1994, receipt dated 12.04.1994 and MOU dated 05.02.2005, purportingly bearing the signature of Sh. Ram Nath and of defendant no. 2. The documents bearing the admitted signatures of Sh. Ram Nath and the documents containing his disputed signatures and of defendant no. 1, were sent to FSL. The FSL report is to the effect that the signatures Marked Q3 and Q4 purporting to be of Sh. Ram Nath appearing on MOU, were not of Sh. Ram Nath. Further opinion is that signatures Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 19 of 25 Marked Q6 and Q7 purporting to be of defendant no. 1 and appearing on MOU, are of defendant no. 1. It means that the MOU has not been signed by Sh. Ram Nath, but it is bearing the signature of defendant no. 1. It suggests that in order to get undue advantage, it was defendant no. 1 who fabricated the MOU. This observation does not mean that he was not accompanied by anybody else in misdeeds. So, the defendants have failed to prove the only vital documents upon which his case is hinging.
21. The defendants are taking protection of section 53A of Transfer of Property Act. As per section 17(1)(A) of Registration Act, 1908, such document is required to be registered and if not registered, the same does not affect any immovable property mentioned therein (section 49 of the Act).
22. In view of above discussion, it is held that there was no occasion or reason for Sh. Ram Nath to sel the suit property. No consideration was given by defendant no. 1 to him. The MOU is a fabricated document and the same does not confer any right, title and interest in the suit property to defendant no.1 as the same is unregistered.
In view of above findings, this issue is decided in favour of plaintiff and against the defendants.
Issue No. 3: (3). Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 20 of 2523. Ld. counsel for plaintiff argued that the erstwhile owner died bachelor and intestate. After his death, the property was inherited by his four brothers, two sisters and mother. These persons relinquished their 1/7th share each in favour of plaintiff. So, she is entitled to possession as the defendants are in unauthorized possession of the suit property.
24. On the other hand, ld. counsel for the defendants argued that the defendant no. 1 was tenant in the suit property and if the plaintiff wants to evict him, she should file a case under Delhi Rent Control Act. If the plea of the plaintiff that defendant no. 2 is merely a licencee is taken true, even then she is not entitled to possession because such licence had become permanent and irrevocable in view of sale of the suit property. He further argued that mutation was wrongly entered in favour of plaintiff and hence, she has no locus standi to file the present suit.
25. As per Hindu Succession Act, 1956 only mother is classI heir of bachelor son. Brother and sisters are in classII. Despite it, four brothers and one sister relinquished their shares in favour of plaintiff. Their mother also did the same thing.
Perusal of written statement shows that defence of wrong mutation in favour of the plaintiff, has not been taken there. It is an afterthought. Moreover, the mutation has already been done in favour of plaintiff. If the defendants are aggrieved by that act of DDA, they Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 21 of 25 should have filed a separate case for cancellation of mutation which they did not. Also, they did not file any counterclaim to that effect. Hence, they cannot be allowed to say that the DDA wrongly mutated the suit property in the name of the plaintiff.
26. Perusal of entire written statement shows that the defendants did not take the defence that the suit was not maintainable as the same should have been filed under Delhi Rent Control Act for getting the possession. They also did not mention in the written statement that if they were licencee, their licence was permanent and irrevocable.
Their case as per para no. 2 of reply on merits of written statement, is that after execution of MOU on 05.02.2005 for sale of the suit property, it was agreed between Sh. Ram Nath and them that since that day, the defendant no. 1 would not be considered as a tenant and rather, he would be treated as owner of the suit property. Moreover, they had taken defence in para no. 3 of preliminary objection that the suit was hit by section 53A of Transfer of Property Act. Now they cannot be allowed to turn back and say that they were only tenant/licencee and not owner of the suit property.
27. In view of above discussion, this issue is decided in favour of plaintiff and against defendants.
Issue No. 2: (2). Whether the plaintiff has no cause of action to file the present suit? OPD.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 22 of 2528. The plaintiff became owner of the suit property as the mutation was entered in her name by DDA on 06.08.2010 in view of her application dated 01.06.2010. The defendants are unauthorized occupants in the suit property. So, the plaintiff has definite cause of action to file the present suit. Hence, this issue is also decided in favour of plaintiff and against defendants.
Issue No. 4: (4). Whether the plaintiff is entitled to a decree of damages/mesne profits, if yes, at what rate and for what period? OPP.
29. It has already been observed that the defendants are trespassers in the suit property. But the plaintiff did not examine any witness to prove the rent of similarly situated properties. As per defendant no. 1, he had taken suit property from erstwhile owner Sh. Ram Nath on rent @ Rs. 1000/ p.m. in 1994. The suit was filed in 2012. During this period, the rent would have become double i.e. @ Rs. 2000/ p.m. which comes out to Rs. 24,000/ p.a. On the basis of that calculation, this issue is decided in favour of plaintiff holding that she is entitled to mesne profit @ Rs. 24,000/ per annum from the defendants from the date of institution of the suit till handing over of possession to her.
Issue No. 5: (5). Whether the plaintiff is entitled to a decree of mandatory injunction? OPP.
Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 23 of 2530. The plaintiff filed photocopy of some documents suggesting that water connection of the suit property was disconnected due to non payment of charges. But she did not file original documents and also did not examine any witness from Delhi Jal Board or electricity company that the defendants did not pay the user charges. Due to that reason, this issue is decided in favour of the defendants and against the plaintiff.
Issue No. 6: (6). Whether the plaintiff is entitled to a decree of permanent injunction? OPP
31. It has already been observed that the defendants are trespasser in the suit property which is standing in the name of plaintiff. So, this issue is also decided in favour of plaintiff and against the defendants.
Issue No. 7 (Relief):
32. In view of above discussion, it is held that the plaintiff is entitled to possession of the suit property i.e. D2A/62A, LIG flats, Janakpuri, New Delhi from the defendants. Plaintiff is also entitled to mesne profit @ Rs. 2,000/ p.m. from the date of filing of the suit till handing over of possession of the suit property alongwith interest @ 7% p.a. from the day of next month when the mesne profit becomes due. Defendants are permanently injuncted not to create third party Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 24 of 25 interest in the suit property. Cost is also to be borne by defendants.
Decree sheet be prepared accordingly.
33. File be consigned to record room.
Announced in the open court (Umed Singh Grewal) Today on 11.11.2021 Addl. District Judge02 (West) Tis Hazari Courts, Delhi Civ DJ No. 609741/16 Krishna Devi Vs. Sanjay & Anr. Page 25 of 25