Delhi District Court
Krishan Kumar Aggarwal And Another vs Meena Chadha And Others on 27 November, 2024
1
IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, (SOUTH EAST),
SAKET COURTS, NEW DELHI
IN THE MATTER OF:
CS DJ NO. 8147 OF 2016
1. SHRI KRISHAN KUMAR AGGARWAL
s/o Late Shri Birju Mal
r/o E-1, Kalindi Colony,
New Delhi-110 065
2. SMT RADHA RANI
(now deceased having expired on
15.10.2007 through her legal heirs)
(i) Sh. Pradyuman Kumar Aggarwal
(ii) Sh. Alok Kumar Aggarwal
Both sons of Shri Krishan Kumar Aggarwal
Both resident of :
E-1, Kalindi Colony,
New Delhi-110 065
Also available at:
C-778 (Basement Floor & Ground Floor)
New Friends Colony,
New Delhi-110 065.
....Plaintiffs
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016
2
VERSUS
1. SMT MEENA CHADHA
w/o. Shri C.M. Chadha
r/o C-778, (First Floor & Second Floor)
New Friends Colony, New Delhi-110 065
2. SHRI CHANDER MOHAN CHADHA
s/o Late Shri Makhan Singh Chadha
r/o C-778, (First Floor & Second Floor)
New Friends Colony,
New Delhi-110 065.
3. SHRI BISHAN LAL KANODIA
s/o Late Shri J.P. Kanodia
r/o C-790, New Friends Colony,
New Delhi-110 065.
4. SMT SUMAN KANODIA
w/o Shri Bishan Lal Kanodia
r/o C-790, New Friends Colony,
New Delhi-110 065.
...Defendants
SUIT FOR SEEKING DECREE OF DECLATION,
RECOVERY OF POSSESSION, RECOVERY OF
DAMAGES/MESNE PROFITS AND FOR PERMANENT
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016
3
PROHIBITORY INJUNCTION AGAINST THE
DEFENDANTS.
Date of Institution : 20.02.2006
Arguments heard on : 19.11.2024
Date of Judgment : 27.11.2024
Decision : DECREED
AND
IN THE MATTER OF :
CS DJ NO. 10365/2016
SMT. MEENA CHADHA
W/o Shri Chander Mohan Chadha
R/o C-778, New Friends Colony, New Delhi
.....Plaintiff
VERSUS
1. SHRI KRISHAN KUMAR AGRAWAL
S/o late Lala Birju Mal
2. SHRI PRADUMAN KUMAR AGRAWAL
3. SHRI ALOK KUMAR AGRAWAL
Both sons of
Shri Krishan Kumar Agrawal
All R/o E 1, Kalindi Colony New Delhi
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016
4
4. SMT. APARNA
D/o. Shri Krishan Kumar Agrawal
C/o E-1, Kalindi Colony, New Delhi.
5. SH. BISHAN LAL KANODIA,
S/o. Shri J.P. Kanodia
6. SMT. SUMAN KANODIA,
W/o. Shri Bishan Lal Kanodia,
Both R/o C-790
New Friends Colony
New Delhi 110 065
.....Defendants
SUIT FOR DECLARATION, POSSESSION,
DAMAGES AND MESNE PROFITS AND MANDATORY
AND PERMANENT INJUNCTION
Date of Institution : 18.01.2008
Arguments heard on : 19.11.2024
Date of Judgment : 27.11.2024
Decision : DISMISSED
JUDGMENT
1. By way of this common judgment, I shall dispose off two cases namely:
(i). CS NO. 8147/2016 titled as Krishan Kumar Aggarwal Vs. Meena Chadha and ors (hereinafter CS NO. 8147 of 2016 & CS NO. 10365 of 2016 5 referred to as "First suit") for declaration, recovery of possession, recovery of damages/mesne profits and for permanent prohibitory injunction filed by the plaintiff against the defendants.
ii). CS NO. 10365/2016 titled as Meena Chadha vs. Sh. Krishan Kumar Agrawal and ors (hereinafter referred to as "Second suit") for Declaration, Possession, Damages and Mesne Profits and Mandatory and Permanent Injunction.
2. For the purposes of convenience, Sh. K.K. Aggarwal and Smt. Radha Rani shall be referred to as Plaintiff no.1 and 2 respectively and collectively as plaintiffs. References to Smt. Radha Rani shall include references to her L.Rs. Smt. Meena Chadha shall be referred as defendant no.1 and Sh. C.M. Chadha shall be referred as defendant no. 2. Sh. Bishan Lal Kanodia shall be referred as defendant no. 3 and Smt. Suman Kanodia as defendant no. 4.
CASE OF SH. KRISHAN KUMAR AGGARWAL & SMT. RADHA RANI (THROUGH HER L.RS)
3. Brief facts of the case as culled out from the pleadings of the plaintiffs are as under:
That the property bearing no. C-778, New Friends Colony, New Delhi (hereinafter referred to as "the property") is a leasehold property under Delhi Development Authority which was allotted to Late Smt Motia Rani Sethi vide registered perpetual sub-lease dated CS NO. 8147 of 2016 & CS NO. 10365 of 2016 6 29.5.1980. That late Smt Motia Rani Sethi in the year 1984 entered into transaction of sale in respect of the above plot of land with defendants No.1 and 2 and executed agreement of building construction, agreement to sell, registered will all dated 15.2.1984 in favour of defendant no.1 against valuable consideration. She also executed registered power of attorneys in favour of defendant no.2-
Shri Chander Mohan Chadha thereby authorizing him and giving him all rights and the powers to deal with the said property and the said transaction was irrevocable in nature. Affidavits of No Objection, of the Children of Smt. Motia Rani Sethi i.e. Mr. Harish Kumr Sethi, Ms. Dolly Chadha and Mr. Promila Sethi, all dated 15.02.1984 were also executed. Receipt dt 12.12.1983 of Rs. 50,000/- and the other receipt of Rs. 2,50,000/- dt Nil was also signed.
4. In the year 1988, the defendants no.1 and 2 entered into transaction in respect of part of said property with defendants No.3 and 4 and their deceased son Pankaj Kanodia and sold them absolute and complete rights in the entire basement floor, entire ground floor with mezannine and annexee No.1 with bath and kitchen (hereinafter referred to as "suit property") with right of use and enjoyment in the common areas alongwith proportionate and undivided share in the plot of land underneath on the basis of separate agreements of building construction, agreements to sell, Will, affidavits etc. all dated CS NO. 8147 of 2016 & CS NO. 10365 of 2016 7 19.10.1988 executed against each of them against lawful value and consideration total amounting to Rs.20,20,000/-. The above transaction was irrevocable in nature.
5. In the year 1994 the plaintiffs No1. and 2 purchased the suit property from defendant no.3 and 4 and became lawful owners thereof as (shown in 'RED' and 'Blue' in the site plan) vide separate agreements to sell, Receipts, Possession Certificates, affidavit etc. all dated 14.09.1994 executed in their favour separately against lawful value and consideration total amounting to Rs.18,50,000/-. The above transaction was also binding upon the parties and irrevocable in nature. They also executed registered POA's (general and special) in favour of son of plaintiff 1 and 2 Sh. Pradyuman Kr. Aggarwal.
6. The plaintiffs have been in possession of basement, ground and mezanine floor of the suit property since 14.09.1994. However, annexe no.1 was in unauthorized occupation of defendant no.1 and 2 at the time of purchase and it was agreed by them that they shall vacate and handover the possession of the said annexe no.1 to the plaintiffs, but they failed to vacate the said annexe shown in 'Blue" colour in the site plan.
7. The plaintiffs are recorded as owners and duly assessed for payment of property taxes by Delhi Municipal Corporation. They have been paying their property taxes from 1994-95 onwards till date. The possession of the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 8 plaintiffs in the suit property is not disputed and is supported from various Govt. and public records.
8. In 2005 the plaintiffs shifted to their new residence i.e. E-1, Kalindi Colony, New Delhi after putting their lock on the suit property. The plaintiffs started repairing and renovation of the work in the suit property in the month of March-April, 2005 engaging Mr. R. Dewan who was a professional architect and engineer and he was consulted by the plaintiffs for his expert professional services.
9. The defendant no. 1 and 2 started causing obstruction and interference in the repair work and filed a police complaint dt 24.12.2005. In the complaint, the defendant no. 1 alleged that the agreements arrived between herself and defendant no.3 and 4 w.r.t basement and ground floor were never implemented and were given up and the defendant no.3 and 4 never occupied the property and never made any claim in respect of the same. It was stated that the plaintiffs have tried to encroach upon the suit property on the basis of false and fabricated documents.
10. The malafides and dishonest intentions of defendant no.1 and 2 is clear from the fact that despite claiming that the documents executed in 1988 were sham, they have not taken any action in this regard from 1988 onwards tilldate and have remained completely quite and silent all these years. In the year 2006, the defendant no. 1 & 2 filed a suit CS NO. 8147 of 2016 & CS NO. 10365 of 2016 9 no. 782/2006 against the plaintiffs for permanent and mandatory injunction for repair and renovation work carried out by them making false allegations and alleging that the documents executed by her in favour of defendant no.3 and 4 were sham and never acted upon.
11. Defendant no.1 and 2 further started interfering in the peaceful occupation and possession of the plaintiff in the suit premises. On 08.02.2006 the defendant no.2 alongwith his son forcibly entered into the back courtyard on the ground floor premises of the plaintiffs and started interfering with the water tanks belonging to the plaintiffs, for which the plaintiffs called the police. The defendant no.1 and 2 also threatened the plaintiff to interfere in their possession.
12. It is averred that during the year 1996, defendant no.
1 had filed an affidavit before MCD thereby admitting that she had sold her rights in respect of the suit property in favour of defendant no.3 and 4 on 19.10.1988 and she now remains owner only for the first floor and second floor of the property. She also admitted that plaintiffs are the owners of the suit property and , therefore, defendant no.1 is estopped from claiming any rights in the suit property. It is averred that defendant no.1 has never made claims in the suit property since October, 1988 and she is now raising disputes when the market value of the suit property is running into several crores.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 10
13. It is averred that the plaintiffs have also become the owners in the suit premises by adverse possession as admittedly defendant no. 1 was aware about the entry of the plaintiffs into possession of the suit premises in Sept, 1994.
14. The plaintiffs served a legal notice dt 24.01.2006 upon defendant no.1 and 2 which was not replied by the defendants. Hence the present suit has been filed by the plaintiffs seeking the following reliefs a decree of declaration that the defendant no.1 and 2 have no right and authority to challenge the title and possession of the plaintiff no. 1 and also plaintiff no. 2 in respect of the suit property. A decree for possession in respect of the annexe no.1 alongwith bath and kitchen forming part of suit property against defendant no. 1 and 2 thereby directing the defendant no.1 and 2 to vacate and hand over the physical possession of the same to plaintiff no. 1. Decree for recovery of damages and mesne profits in favour of plaintiff no. 1 and against defendant no.1 and 2 for an amount of Rs. 3 lacs for illegal and unauthorised possession of the annexe no.1 with kitchen and bathroom, a decree for permanent and prohibitory injunction against defendant no.1 and 2 thereby restraining the said defendants from forcibly entering and causing obstruction in the occupation and possession of the plaintiff no.1 and 2 in the suit property.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 11 CASE OF MEENA CHADDHA & CHANDER MOHAN CHADDHA Brief facts of the case, as culled out from the pleadings of defendant no.1 and defendant no. 2 are as under :
15. The defendant no.1 is the owner of property bearing No.C-778, New Friends Colony, New Delhi admeasuring 481.3 Sq. Yards which was originally allotted by DDA to Smt. Motia Rani Sethi by way of perpetual sub-lease dated 29.05.1980.
16. The defendant no. 1 is in possession of the First Floor, Second Floor, annex and garage block of the said property. Plaintiffs are in unauthorized possession of the basement, ground floor and the mezzanine floor which is at present lying under the lock and key of the said plaintiffs.
17. Smt. Motia Rani Sethi during her lifetime executed her last registered will dated 15.12.1984 whereby she bequeathed the property bearing No.C-778, New Friends Colony, New Delhi to defendant no.1. The children of Smt. Motia Rani Sethi- Mr. Harish Kumr Sethi, Ms. Dolly Chadha and Mr. Promila Sethi executed affidavits of no objections to the bequeathment. She had also executed agreement to sell, general power of attorney, receipt and other usual documents for transfer of her rights in favour of defendant no. 1. The defendant no.1 paid the whole CS NO. 8147 of 2016 & CS NO. 10365 of 2016 12 consideration amount and was given possession of the plot in question. After the death of Smt. Motia Rani Sethi on 20.08.1998, the defendant no. 1 became the absolute and exclusive owner of the property by way of her last Will. The POA was also executed in favour of defendant no.2 only for the purposes to complete the transaction made by defendant no.1 with the allottee. No independent right had been created in favour of defendant no. 2.
18. After coming into possession of the property in 1984, defendant no.1 raised construction on the annexe block and the garrage in the property and started residing therein. Defendant no.1 also obtained water and electricity connections in her name and also got the property mutated in her name in the property tax records of MCD. However, due to paucity of funds, the defendant no. 1 could not raise further construction and had to stay in the annexe till 1992.
19. Defendants 3 and 4 and their son Shri Pankaj Kanodia approached the defendant no. 1 with an offer to provide funds and to construct the property after obtaining necessary sanctions for the same from the competent Authorities. Accordingly, separate agreements of building construction were signed between defendant no.1 and defendant no.3 and 4 and their son and they together paid Rs.20,20,000.00 to defendant no. 1 for raising further construction upon the property. It was agreed between the defendant no.1 and the said builders that till the said CS NO. 8147 of 2016 & CS NO. 10365 of 2016 13 amount was repaid to them, the said builders shall have the possession of the suit property including the right to let it out and appropriate its usufruct. In order to secure the right of the Defendants no. 3 & 4 and their son in the Suit property, the defendant no. 1 also executed separate agreements to sell w.r.t the suit property in favour of each of them, but the same were merely to operate as security and were never acted upon.
20. Defendants 3 and 4 performed their part of the contract and raised construction upon the said property, however, in the meantime their son Shri Pankaj Kanodia unfortunately expired. Hence, the Defendants 3 and 4 abandoned the idea of continuing to live in the suit property.
21. In September 1994, Defendants 3 and 4 assigned their rights under the builder agreement in favour of plaintiffs. At the request of Defendants 3 and 4, the defendant no. 1 allowed plaintiffs to reside in the suit property and informed the Municipal Corporation of Delhi about it. They were to pay for the amenities enjoyed by them and the property tax of the portion of property in their possession. The plaintiffs were allowed to use and occupy the portion which was earlier allowed to be used by defendantno.3 and 4 on the same terms and conditions and the plaintiffs were liable to vacate and handover its vacant possession immediately on receipt of Rs. 20.20 lacs CS NO. 8147 of 2016 & CS NO. 10365 of 2016 14 invested in the construction of the property. The possession of the plaintiffs was permissive and they were therefore, the licensees in the suit property till the time defendant no. 1 could repay the amount of Rs.20,20,000/-. As agreed, the plaintiffs were liable to pay the house tax and other charges for the amenities used by them in the said portion of the property.
22. It is averred that the mutation of the portion of the property for the purposes of payment of house tax does not create any title in the property. It is further averred that the plaintiffs never claimed any title in the property hence the question of the dispute being raised by defendants does not arise. It is stated that the affidavits for the purposes of recovery of house tax was made with the MCD but the possession of the plaintiffs continued to remain as permissive.
23. Since the construction of annexe no.1, it remained in the use and occupation of the defendants no.1 and 2 and there was never any agreement or undertaking to vacate the annexe by the defendants. It is stated that in the year 1999, the plaintiff sent a false demand notice dt 02.04.1999 wherein a contrary claim was made with regard to annexe.
24. Defendant no. 1 subsequently learnt that the plaintiffs alleged to have obtained an agreement to sell, receipt and other documents from Defendants 3 and 4, CS NO. 8147 of 2016 & CS NO. 10365 of 2016 15 which are to the belief of defendant no. 1 forged and fabricated documents.
25. Plaintiffs lived in the Suit property till the year 2004 and thereafter they shifted to their own house at E 1, Kalindi Colony, New Delhi and since then the suit property is lying under their lock and key. The plaintiffs thereafter started threatening the defendant no. 1 to raise unauthorized construction over the suit property and also threatened to transfer the possession of the suit property to one Shri R Dewan.
26. Shri R Diwan who claims to be a builder, at the instance of the Plaintiffs, started making unauthorized Construction, additions, alterations, structural changes and modification in the ground floor and basement portions of the property owned by the Defendant No.1. The Plaintiffs had started claiming to have purchased the suit property from Shri Bishan Lal Kanodia and his family members, however, the Defendant No.3 and his family had no right, title or interest in the suit property hence he could not have transferred any better title in favour of the Plaintiffs. After the vacation of the suit property by the Plaintiffs, Shri R Diwan at the instance of Plaintiffs approached the Defendant No.1 and started compelling her to transfer the suit property in his favour or in favour of his nominee. He also threatened the defendant no.1 with dire consequences if his demand is not fulfilled.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 16
27. In the month of December 2005, defendants received a message from their son that some unknown and unauthorized persons have trespassed and encroached upon the basement and ground floor of the property and had started making unauthorized, illegal Construction, additions, alterations including structural changes in the said portion. They demolished some walls and removed shutter and fittings in the property. The said persons including Shri R Diwan had started raising additions, alterations with a view to convert that portion of the property into four different dwelling units by making alterations and structural changes which would affect the life and utility of the property owned by the Defendant No.1. The Plaintiffs started unauthorized construction of flats, in violation of the building bye laws and without any permission and sanction from the Competent Authority. The Plaintiffs and Shri R Diwan threatened to make flats and dispose off the same to third persons.
28. The defendant no. 1 has, therefore, filed a suit for injunction restraining the plaintiffs and Shri R Dewan from raising any constructions, alteration or changes in the suit property and for mandtory injunction to demolish the unauthorized construction. In the said suit, plaintiffs for the first time claimed title in the suit property on the basis of sham documents allegedly executed by Defendant No.3 and 4 in favour of plaintiffs in the year 1994 including an CS NO. 8147 of 2016 & CS NO. 10365 of 2016 17 alleged agreement to sell. The documents relied upon by the plaintiffs are not legal and are forged and do not confer any right and title in their favour and the property exclusively vests with defendant no.1. The property was never sold to defendant no. 3 and 4 and their son and the only rights that existed in their favour were the ones created under the building construction agreement. Since the defendant no.3 and 4 did not acquire any ownership rights in the suit propery they could not have sold the same to the plaintiffs.
29. The defendant no. 1 arranged and offered Rs.20,20,000.00 to plaintiffs in lieu of the vacation of the suit property, which they avoided. Hence the defendant no. 1 served a legal notice dated 27 th November 2007 upon the plaintiffs once again offering the said amount of Rs.20,20,000.00 to them and requested them to deliver the possession of suit property to the defendant no. 1. The said legal notice was replied by the plaintiffs vide reply dt 4th December 2007 declining the request and raising false defences.
30. The defendant no. 1 is still ready and willing to pay the said amount of Rs. 20.20 lacs to the plaintiffs in lieu of the vacation of the suit property. However, plaintiffs have become dishonest.
31. The plaintiffs even after service of legal notice threatened the defendant no. 1 to create third party interest CS NO. 8147 of 2016 & CS NO. 10365 of 2016 18 in the suit property on the basis of forged and fabricated documents. The possession of plaintiffs in the suit property has become unlawful from the date defendant no. 1 offered to them to receive the agreed amount and vacate the suit property for which they are liable to pay mesne profit and damages for the unauthorized use and occupation of the suit property lying under their lock and key. It is stated that suit property can fetch a monthly rent of Rs.50,000/-.
32. The defendant no. 1 have thus filed the suit claiming the following reliefs:
i). Decree of declaration that defendant no. 1 is the sole and exclusive owner of the suit property and that the plaintiffs and defendant no.3 & 4 have no right, title or interest in the suit property.
ii). Further a decree of declaration thereby declaring that the documents upon which the plaintiffs claim their title are void with directions to plaintiffs to deliver the said documents and they be cancelled.
iii). Decree of possession against the plaintiffs directing them to deliver the possession of the suit property to the defendant no.1 upon receiving Rs. 20,20,000/-.
iv). Restraining the plaintiffs from making any unauthorised construction or changes in the suit property and from creating any third party rights in it.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 19
v). A preliminary decree that the defendant no. 1 is entitled to damages and mesne profits against the defendants.
33.PROCEEDINGS OF THE CASES:
During the course of proceedings, Sh. Bishal Lal Kanodia and Smt. Suman Kanodia (referred as defendant no.3 and 4 herein) were proceeded ex-parte vide order dt 19.03.2007 in the first suit and vide order dt 19.05.2009 in the second suit.
34.ISSUES FRAMED IN FIRST SUIT From the pleadings of the parties, the following issues were framed vide order dt 09.03.2011:-
i). Whether the suit is barred u/s. 41 of Specific Relief Act ? OPD
ii). Whether there is no privity of contract between the plaintiffs and defendants ? OPD
iii). Whether the suit bearing no. 92/2008 Smt. Meena Chadha vs. Sh. Krishan Kumar Agarwal & Ors, is liable to be stayed under section 10 CPC ? OPD
iv). Whether the suit of the plaintiffs is liable to be rejected under Order VII Rule 11(a) & (c) CPC ? OPD
v). Whether the plaintiff no. 1 is entitled to declaration against the defendants no. 1 and 2 as prayed for ? OPP CS NO. 8147 of 2016 & CS NO. 10365 of 2016 20
vi). Whether the plaintiff are entitled to declaration as prayed for, if so, to what effect ? OPP
vii). Whether the plaintiff no. 1 is entiled to possession against the defendant nos. 1 and 2 in repect of annexe no. 1 alongwith the kitchen and bath rooms forming part of the property bearing no. C-778, New Friends Colony, New Delhi ? OPP
viii). Whether the plaintiffs are entitled to decree of damages, mesne profits to the tune of Rs.
3,00,000/- against the defendants no. 1 and 2 on account of being in illegal and unauthorised possession of annexe no. 1 alongwith the kitchen and bath rooms of property bearing no. C-778, New Friends Colony, New Delhi, if so, to what effect ? OPP
ix). Whether the plaintiffs are entitled to permanent injunctions as prayed for ? OPP ISSUES FRAMED IN SECOND SUIT Vide order dt 19.11.2024, the following issues were framed :-
1. Whether the plaintiff is entitled to a decree of declaration of title of ownership, as prayed in prayer clause (a) of the plaint? (OPP) CS NO. 8147 of 2016 & CS NO. 10365 of 2016 21
2. Whether the plaintiff is entitled to a decree declaring the documents relied upon by defendant no.1 to 4 as void and for their cancellation, as prayed in prayer clause (b) of the plaint? (OPP)
3. Whether the plaintiff is entitled to a decree of possession upon repayment of Rs.20,20,000/-, as prayed in prayer clause (c) of the plaint? (OPP)
4. Whether the plaintiff is entitled to a decree of injunction restraining the defendant no.1 to 4 from making any unauthorized construction or change in the suit property and from creating any third party right in the suit property ? (OPP)
5. Whether the plaintiff is entitled to a decree for damages and mesne profits ? (OPP)
6. Whether the suit is barred by limitation? OPD1, 2 & 3.
7. Relief.
35. The evidence led in the suit bearing no.8147/16 i.e. the first suit, was treated as the common evidence for both the matters and the said suit was treated as a lead matter. PLAINTIFFS EVIDENCE
36. Plaintiff in support of their case examined Sh.
Krishan Kumar Aggarwal as PW1. He tendered his CS NO. 8147 of 2016 & CS NO. 10365 of 2016 22 evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
Sr Document Exhibit No.
No.
1. Lease deed dated 29.5.1980 in favour of Mrs. P-7
Motia Rani Sethi
2. Copy of agreement of building contract dated PW-1/1
15.2.1984
3. Copy of agreement to sell dated 15.2.1984 PW-1/2
4. Copy of will dated 15.2.1984 PW-1/3
5. Copy of affidavits executed by Mrs Motia PW-1/4 (Colly)
Rani Sethi dated 15.2.1984
f. Copy of agreement to sell dated 19.10.1988 in PW-1/5
favour of Mr B.L. Kanodia
7. Copy of agreement to sell dated 19.10.1988 in PW-1/6
favour of Mrs Suman Kanodia
8. Copy of agreement to sell dated 19.10.1988 in PW-1/7
favour of Late Mr Pankaj Kanodia
9. Copy of agreement of building construction PW-1/8
dated 19.10.1988 in favour of Mr B.L.
Kanodia
10. Copy of agreement of building construction PW-1/9
dated 19.10.1988 in favour of Mrs Suman Kanodia
11. Copy of agreement of building construction PW-1/10 dated 19.10.1988 in favour of Late Mr Pankaj Kanodia
12. Copy of Will dated 19.10.1988 in favour of PW-1/11 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 23 Mr Bishan Lal Kanodia
13. Copy of Will dated 19.10.1988 in favour of PW-1/12 Mrs Suman Kanodia
14. Copy of affidavits executed by Mrs Meena PW-1/13 Chadha (Colly)
15. Copy of affidavits executed by Mr Chander PW-1/14 (Colly) Mohan Chadha
16. Copy of indemnity bond executed by Mrs PW-1/15 Meena Chadha
17. Copy of indemnity bond executed by Mr PW-1/16 Chander Mohan Chadha
18. Site plan PW-1/17 (Colly)
19. Agreement to Sell dated 14.9.1994 executed PW-1/18 by Mr Bishan Lal Kanodia in favour of Mr Krishan Kumar Aggawal
20. Agreement to Sell dated 14.9.1994 executed PW-1/19 by Mrs Suman Kanodia in favour of Late Mrs Radha Rani
21. Receipt dated 14.9.1994 executed by Mr PW-1/20 Bishan Lal Kanodia in favour of Mr Krishan Kumar Aggarwal
22. Receipt dated 14.9.1994 executed by Mrs PW-1/21 Suman Kanodia in favour of Mrs Radha Rani
23. Will dated 14.9.1994 executed by Mr Bishan PW-1/22 Lal Kanodia in favour of Mr Krishan Kumar Aggarwal along with site plan
24. Will dated 14.9.1994 executed by Mrs Suman PW-1/23 Kanodia in favour of Late Mrs Radha Rani along with site plan
25. Regd. General power of attorney dated PW-1/24 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 24 14.9.1994 executed by Mr Bishan Lal Kanodia in favour of Mr Pradyuman Kumar Aggarwal
26. Regd. General power of attorney dated PW-1/25 14.9.1994 executed by Mrs Suman Kanodia in favour of Mr Pradyuman Kumar Aggarwal
27. Regd. Special power of attorney dated PW-1/26 14.9.1994 executed by Mr Bishan Lal Kanodia in favour of Mr Pradyuman Kumar Aggarwal
28. Regd. Special power of attorney dated PW-1/27 14.9.1994 executed by Mrs Suman Kanodia in favour of Mr Pradyuman Kumar Aggarwal
29. Possession Certificate dated 14.9.1994 PW-1/28 executed by Mr Bishan Lal Kanodia in favour of Mr Krishan Kumar Aggarwal.
30. Possession Certificate dated 14.9.1994 PW-1/29 executed by Mrs Suman Kanodia in favour of Late Mrs Radha Rani
31. Indemnity Bond dated 14.9.1994 executed by PW-1/30 Mr Bishan Lal Kanodia in favour of Mr Krishan Kumar Aggarwal
32. Indemnity Bond dated 14.9.1994 executed by PW-1/31 Mrs Suman Kanodia in favour of Mrs Radha Rani
33. No Objection dated 14.9.1994 executed by Mr PW-1/32 Bishan Lal Kanodia
34. No Objection dated 14.9.1994 executed by PW-1/33 Mrs Suman Kanodia
35. Affidavit dated 14.9.1994 executed by Mr PW-1/34 Bishan Lal Kanodia CS NO. 8147 of 2016 & CS NO. 10365 of 2016 25
36. Affidavit dated 14.9.1994 executed by Mrs PW-1/35 Suman Kanodia
37. Assessment order dated 17.7.1995 passed by PW-1/36 Assessor and Collector, MCD in favour of Mr Already Krishan Kumar Aggarwal and Mrs Radha exhibited as PW-4/1 Rani and PW-4/2
38. Various records pertaining to payment of PW-1/37 property tax by plaintiffs in respect of the suit Already property exhibited as PW-4/4 to PW-4/9
39. Original Electricity bill for the month of P-1 August, 2000
40. Original Electricity bill for the month of May, P-2 2001
41. Original Electricity bill for the month of P-3 December, 2001
42. Original Electricity bill for the month of May, P-4 2002
43. Original Electricity bill for the month of July, P-5 2003
44. Original Electricity bill for the month of P-6 December, 2005
45. Various telephone bills in the name of Mr PW-1/38 (Colly) Krishan Kumar Aggarwal
46. Various water bills in the name of Mrs Radha PW-1/39 Rani (Colly)
47. Legal Notice dated 24.01.2006 sent by PW-1/40 plaintiffs to defendant no 1 & 2
48. Registered postal receipts PW-1/41
49. UPC postal receipts PW-1/42
50. Courier receipts PW-1/43
51. Original Acknowledgement cards PW-1/44
52. Police complaint dated 24.12.2005 filed by Mark-A defendant no 1 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 26
53. Reply / Police complaint dated 24.12.2005 Mark-B submitted by plaintiffs against defendants
54. Statement of the rent for the year 2002-2003 Mark-C Already signed and submitted by defendant no 1 exhibited as PW-5/A-1
55. Indemnity bond dated 08.08.1996 executed by Mark-D Already defendant no 1 exhibited as PW-5/A-2-3
56. Property tax return dated 3.1.2000 submitted Mark-E Already by defendant no 1 exhibited as PW-4/10
57. Assessment order fixing rateable value of the Mark-F Already portion owned by defendant no 1 & 2 exhibited as PW-4/3
58. Application for mutation and sub division Mark-G Already filed by defendant no 1 exhibited as PW-5/A-4
59. Attested affidavit dated 08.8.1996 signed by Mark-H Already defendant no 1 exhibited as PW-5/A-5
60. Attested affidavit dated 15.7.1996 signed by Mark-I Already defendant no 1 exhibited as PW-5/A-6
37. Plaintiffs also examined PW2-Sh. R. Diwan in support of their case. He tendered his evidence by way of affidavit Ex.PW2/A. He deposed that Mr. K.K. Aggarwal asked him to do repairs and renovation work at the suit property and no unauthorised construction etc was done by him and no construction was done with a view to raise four different dewelling units. He also deposed that he never CS NO. 8147 of 2016 & CS NO. 10365 of 2016 27 approached or compelled Smt. Meena Chadha or Mr. Chander Mohan Chadha to transfer the suit property in his name and he never threatened them. He also deposed that Smt. Meena Chadha never requested him to not make any unauthorized construction. The witness stood firm and consistent in his cross-examination and his testimony remained unshaken.
38. PW3 Sh. Parveen Kumar Rana is the witness from Sub Registrar Office. He proved the following documents on record:
Sr Document Exhibit No.
No.
1. Will dated 14.9.1994 executed by Mr Bishan PW-3/1
Lal Kanodia in favour of Mr Krishan Kumar Also PW-1/22
Aggarwal
2. General power of attorney dated 14.9.1994 PW-3/2
executed by Mr Bishan Lal Kanodia in favour Also PW-1/24
of Mr Pradyuman Kumar
3. Special power of attorney dated 14.9.1994 PW-3/3
executed by Mr Bishan Lal Kanodia in favour Also PW-1/26
of Mr Pradyuman Kumar
4. Will dated 14.9.1994 executed by Mrs Suman PW-3/4
Kanodia in favour of Mrs Radha Rani Also PW-1/23
5. General power of attorney dated 14.9.1994 PW-3/5
executed by Mrs Suman Kanodia in favour of Also PW-1/25
Mr Pradyuman Kumar
6. Special power of attorney dated 14.9.1994 PW-3/6
executed by Mrs Suman Kanodia in favour of Also PW-1/27
Mr Pradyuman Kumar
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016
28
39. PW-4-Sh. Chander Pal, witness from House Tax Deptt., Central Zone, MCD has proved the following documents:
Sr Document Exhibit No.
No.
1. Copy of assessment order dated 17.7.1995 in PW-4/1
respect of basement
2. Copy of assessment order dated 17.7.1995 in PW-4/2
respect of ground floor
3. Copy of assessment order dated 30.10.2001 in PW-4/3
respect to first floor and second floor
4. Original property tax receipts PW-4/4 to 4/9
5. Property tax return filed by Mrs Meena Chadha PW-4/10 for the year 1999-2000 with respect to first floor and second floor of the property no.C-778, New Friends Colony
6. Copy of receipt no.988032 of Mr Krishan Kumar PW-4/11 Aggarwal
7. Copy of receipt no.988031 of Mrs Radha Rani PW-4/12
8. Office noting dated 30.10.1995 with respect to PW-4/13 receipt of the amount
9. Assessment order with respect to part of property PW-4/14 no.C-778, New Friends Colony, New Delhi in the hands of Mrs Meena Chadha w.e.f. 1.2.1993
10. Copy of the letter bearing diary no.32711 dated PW-4/15 29.3.1996
11. Copy of letter received from Mrs Radha Rani PW-4/16 vide diary no.1743 dated 2.5.1996
12. Copy of letter received from Mrs Meena Chadha PW-4/17 vide diary no.1556 dated 30.4.1996
13. Copy of assessment order dated 8.8.1996 PW-4/18
14. Copy of inspection book dated 28.8.1999 PW-4/19
15. Copy of letter dated 3.5.1999 vide diary no.1711 PW-4/20 received from Mrs Meena Chadha
16. Copy of letter dated 3.5.1999 vide diary no.1710 PW-4/21 received from Mrs Meena Chadha CS NO. 8147 of 2016 & CS NO. 10365 of 2016 29
17. Copy of letter dated 29.8.1996 received from Mrs PW-4/22 Meena Chadha
18. Copy of letter dated 13.3.2000 vide diary PW-4/23 no.12485 received from Mrs Meena Chadha
19. Copy of inspection book dated 10.3.2000 PW-4/24
20. Copy of notice under section 126 of the DMC PW-4/25 Act for the year 1999-2000
21. Copy of the acknowledgement card for the above PW-4/26 notice
22. Copy of the postal receipt for the above notice PW-4/27
23. Letter dated 15.4.2000 received in MCD vide PW-4/28 diary no.16181 dated 17.4.2000 from Mrs Meena Chadha
24. Copy of call letter issued to Mrs Meena Chadha PW-4/29 for date of hearing 13.2.2002
25. Copy of call letter issued to Mrs Meena Chadha PW-4/30 for date of hearing 27.2.2002
26. Copy of property tax bill for the year 1996-97 Mark bearing bill no.83104 sent to Mrs Meena Chadha PW-4/A
27. Copy of receipt bearing no.604015. Mark PW-4/B
28. Copy of receipt bearing no.390681. Mark PW-4/C
29. Copy of receipt bearing no.870009. Mark PW-4/D
30. Copy of letter dated 27.2.2002 received from PW-4/31 CM Chadha on behalf of Mrs Meena Chadha
31. Copy of letter dated 13.2.2002 received from Mrs PW-4/32 Meena Chadha
32. Copy of property tax return filed by Mrs Meena PW-4/33 Chadha for the year 1999-2000
33. Another copy of property tax return filed by Mrs PW-4/33A Meena Chadha for the year 1999-2000
34. Copy of assessment order dated 30.10.2001 in PW-4/34 respect of first and second floor of C-778, New Friends Colony
35. Anther copy of assessment order dated PW-4/34A 30.10.2001 in respect of first and second floor of C-778, New Friends Colony CS NO. 8147 of 2016 & CS NO. 10365 of 2016 30
36. Copy of receipt no.2435228 dated 25.1.2006 PW-4/E towards payment charges for supplying copies to Mr Krishan Kumar Aggarwal
37. Copy of receipt no.2432823 dated 9.1.2006 PW-4/F towards property details, misc. RTI, house tax collected in favour of Mr Krishan Kumar Aggarwal
38. Copy of letter dated 12.7.2006 received vide PW-4/35 diary no.2365 from Mrs Meena Chadha
39. Copy of an application for obtaining information PW-4/36 and documents under RTI dated 6.9.2007 vide diary no.722
40. Copy of letter no.967 dated 1.10.2007 issued by PW-4/37 Asstt. Assessor & Collector to Mrs Meena Chadha
41. Copy of letter no.966 dated 1.10.2007 issued by PW-4/38 Asstt Assessor & Collector to Mr Krishan Kumar Aggarwal and Mrs Radha Rani
42. Copy of letter dated 5.10.2007 received from Mrs PW-4/39 Meena Chadha vide diary no.4681 on 8.10.2007
43. Copy of office noting by Mr Shokun Chouhan, PW-4/40 AZI
44. Copy of self assessment return filed by Mrs PW-4/41 Meena Chadha for the assessment year 2004-05
45. Copy of receipt no.1388837 dated 16.3.2005 PW-4/42
46. Self assessment form for property tax submitted PW-4/43 by Mrs Meena Chadha for the year 2005-06
47. Office copy of receipt no.167348 dated PW-4/44 24.7.2005 for payment of property tax for the year 2005-06
48. Self assessment form for property tax submitted PW-4/45 by Mrs Meena Chadha for the year 2006-07
49. Office copy of the receipt no.2701436 dated PW-4/46 24.6.2006 for the payment of property tax for the year 2006-07
50. Self assessment form for property tax submitted PW-4/47 by Mrs Meena Chadha for the year 2008-09
51. Office copy of the receipt no.264055 dated PW-4/48 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 31 25.6.2008 for the payment of property tax for the year 2008-09
52. Self assessment form for property tax submitted PW-4/49 by Mr Krishan Kumar Aggarwal for the year 2007-08
53. Office copy of the receipt no.146908 dated PW-4/50 30.6.2007 for the payment of property tax for the year 2007-08 paid by Mr Krishan Kumar Aggarwal
54. Self assessment form for property tax submitted PW-4/51 by Mrs Meena Chadha for the year 2010-11
55. Office copy of the receipt no.78057 dated PW-4/52 23.6.2010 for the payment of property tax for the year 2010-11
56. Office notings by MCD officials PW-4/53
57. Copy of application for Mrs Radha Rani with PW-4/54 respect to assessment and mutation of ground floor of property no.C-778, New Friends Colony, New Delhi
58. Copy of indemnity bond submitted by Mrs PW-4/55 Radha Rani along with application for assessment and mutation of ground floor
59. Copy of affidavit submitted by Mrs Radha Rani PW-4/56 along with application for assessment and mutation of ground floor
60. Copy of agreement to sell dated 14.9.1994 PW-4/57 submitted by Mrs Radha Rani along with application for assessment and mutation of ground floor
61. Copy of site plan submitted by Mrs Radha Rani PW-4/58 along with application for assessment and mutation of ground floor
62. Copy of receipt submitted by Mrs Radha Rani PW-4/59 along with application for assessment and mutation of ground floor
63. Copy of order dated 17.7.1995 in respect of PW-4/60 ground floor passed by Mr V.C. Chaturvedi CS NO. 8147 of 2016 & CS NO. 10365 of 2016 32
64. Copy of application for assessment of ground PW-4/61 floor of property no.C-778, New Friends Colony, New Delhi
65. Copy of agreement to sell dated 14.9.1994 PW-4/62 submitted along with application for assessment of ground floor
66. Copy of site plan submitted along with PW-4/63 application for assessment of ground floor
67. Copy of ID action done by the concerned official PW-4/64
68. Copy of objection dated 30.4.1996 filed by Mrs PW-4/65 Radha Rani against the revision of retable value in respect of ground and mezzanine floor of premises no.C-778
69. Copy of notice bearing no.63850 issued by MCD PW-4/66 to Mrs Radha Rani in respect of ground and mezzanine floor of premises no.C-778
70. Copy of inspection report dated 16.3.1996 PW-4/67 bearing no.109049
71. Copy of call letter dated 10.5.1996 sent to Mrs PW-4/68 Radha Rani
72. Back side of call letter PW-4/68A
73. Copy of AD card with regard to posting of call PW-4/69 letter
74. Copy of decision dated 21.5.1996 by Dy PW-4/70 Assessor & Collector
75. Copy of self assessment return for the year 2005- PW-4/71 06 filed by Mrs Radha Rani dated 9.1.2006 (internal page no.1 to 12)
76. Copy of receipt no.233066 for payment of house PW-4/72 tax
77. Copy of self assessment return for the year 2004- PW-4/73 05 filed by Mrs Radha Rani dated 24.6.2006 (internal page no.1 to 4)
78. Copy of receipt no.269974, book No.AZ0421014 PW-4/74 for payment of house tax
79. Copy of self assessment return for the year 2007- PW-4/75 08 filed by Mrs Radha Rani dated 25.6.2007 (internal page no.1 to 4) CS NO. 8147 of 2016 & CS NO. 10365 of 2016 33
80. Copy of receipt no.147053 for payment of house PW-4/76 tax
81. Copy of self assessment return for the year 2008- PW-4/77 09 filed by Mr Krishan Kumar Aggarwal dated 6.6.2008 (internal page no.1 to 4)
82. Copy of receipt no.693090 for payment of house PW-4/78 tax
83. Copy of receipt no.891025 for payment of house PW-4/79 tax for the year 2009-10
84. Copy of self assessment return for the year 2010- PW-4/80 11 filed by Mr Krishan Kumar Aggarwal and others dated 25.6.2010 (internal page no.1 to 4)
85. Copy of receipt no.84699 for payment of house PW-4/81 tax
86. Copy of demand and collection register (02 PW-4/82 pages)
87. Copy of application dated 19.7.1995 filed by Mr PW-4/83 Krishan Kumar Aggarwal for assessment and mutation of entire basement floor property no.C-778, New Friends Colony, New Delhi
88. Copy of indemnity bond filed along with said PW-4/84 application
89. Copy of affidavit filed along with said PW-4/85 application
90. Copy of assessment order dated 17.7.1995 with PW-4/86 respect of ground floor passed by Mr V.C. Chaturvedi
91. Copy of agreement to sell dated 14.9.1994 PW-4/87 submitted by Mr Krishan Kumar Aggarwal
92. Copy of site plan submitted by Mr Krishan PW-4/88 Kumar Aggarwal
93. Copy of receipt submitted by Mr Krishan Kumar PW-4/89 Aggarwal
94. Copy of ID action (calculation of retable value PW-4/90 and transfer duty) with respect to basement of property no.C-778
95. Copy of letter dated 25.9.1996 submitted to PW-4/91 MCD by Mr Krishan Kumar Aggarwal with respect to C-778 with respect to basement CS NO. 8147 of 2016 & CS NO. 10365 of 2016 34
96. Copy of order dated 26.9.1996 passed by Dy PW-4/92 Assessor & Collector
97. Copy of self assessment return for the year 2004- PW-4/93 05 filed by Mr Krishan Kumar Aggarwal (internal page 1 to 12)
98. Copy of receipt no.1224528 for payment of PW-4/94 house tax
99. Copy of self assessment return for the year 2004- PW-4/95 05 and 2005-06 filed by Mr Krishan Kumar Aggarwal dated 24.6.2006 (internal page 1 to 4)
100. Copy of self assessment return for the year 2005- PW-4/96 06 dated 9.1.2006 filed by Mr Krishan Kumar Aggarwal (internal page 1 to 12)
101. Copy of receipt no.233067 for payment of house PW-4/97 tax
102. Copy of self assessment return for the year 2008- PW-4/98 09 dated 6.6.2008 filed by Mr Krishan Kumar Aggarwal (internal page 1 to 4)
103. Copy of receipt no.693089 for payment of house PW-4/99 tax
104. Copy of receipt no.891026 for payment of house PW-4/100 tax for the year 2009-10
105. Copy of self assessment return for the year 2010- PW-4/101 11 dated 25.6.2010 filed by Mr Krishan Kumar Aggarwal (internal page 1 to 4)
106. Copy of receipt no.AH84698 for payment of PW-4/102 house tax
107. Copy of demand and collection register PW-4/103
40. PW-5- Mr. Surajveer Singh Chauhan, PS to Commissioner, MCD was summoned by the plaintiff to prove the admissions of defendant no.1 qua the factum of sale of suit property, made in various documents filed before the MCD. The documents proved by this witness were obtained by the plaintiffs by filing an RTI before the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 35 concerned Officer of MCD, however, during the examination of PW4 the same were found to be missing from the record and therefore, the same necessiated the examination of the present witness. The documents proved by the said witness are as follows:
Sr Document Exhibit No. No. 1. Statement of the rent for the year 2002-2003 PW-5/A-1
signed and submitted by defendant no 1 / Mrs Meena Chaddha
2. Indemnity bond dated 08.08.1996 executed by PW-5/A-2-3 defendant no 1 / Mrs Meena Chaddha
3. Application for mutation and sub division filed PW-5/A-4 by defendant no 1 / Mrs Meena Chaddha
4. Attested affidavit dated 08.8.1996 signed by PW-5/A-5 defendant no 1 / Mrs Meena Chaddha
5. Attested affidavit dated 15.7.1996 signed by PW-5/A-6 defendant no 1 / Mrs Meena Chaddha
6. Copy of assessment order dated 30.10.2001 in PW-4/3 (also seen respect to first floor and second floor by PW-5 and identified)
7. Property tax return filed by Mrs Meena PW-4/10 Chadha for the year 1999-2000 with respect to (also seen by PW-5 first floor and second floor of the property and identified) no.C-778, New Friends Colony
8. Copy of application dated 9.1.2006 filed by PW-5/B Mr Krishan Kumar Aggarwal and Mrs Radha Rani received in the office of MCD on 12.1.2006 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 36
41. Sh. Surajveer Singh Chauhan stated in his testimony that the above documents were supplied by him by attesting the same and he identified his signatures on the above documents. He stated that he supplied the documents vide I'D no. 42 upon the application of K.K. Aggarwal and Radha Rani dt 09.01.2006. He also deposed that he was the competent authority under RTI at that time being the Assessor and Collector. He further deposed that in the records of MCD the plaintiffs herein are the owners of the suit property and the defendant no.1 is the owner of other part i.e. first and second floor of property bearing no. C-778, New Fiends Colony, New Delhi. The testimony of the witness was consistent and remained unshaken in the cross-examination.
42. PW6-Sh. Rajesh Mishra is the witness from Delhi Jal Board, Lajpat Nagar. He proved the copy of the allotment letter of Water Connection installed in the name of Smt. Meena Chadha since 05.05.1986 & Radha Rani since 02.08.1996 at C-778, New Fiends Colony, New Delhi as Ex.PW6/1 and Ex.PW6/2.
43. PW7-Sh. Neeraj Kumar Bainiwal, witness from Delhi Jal Board, Sarita Vihar has brought the attested copy of Meter Reader's diary pertaining to property No. C-778, New Fiends Colony, New Delhi, in the name of Smt. Meena Chadha and Smt. Radha Rani. He exhibited the following documents:-
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 37 Sr Document Exhibit No. No.
1. Attested copy of meter reader's diary pertaining PW-7/1 to property no.C-778, New Friends Colony, New Delhi in the name of Mrs Meena Chadha
2. Attested copy of the water bill dt PW-7/2 16.01.2018 in the name of Mrs Meena Chadha
3. Attested copy of payment receipt dt PW-7/3 31.12.2015 in the name of Mrs Meena Chadha
4. Attested copy of meter reader's diary PW-7/4 pertaining to property no.C-778, New Friends Colony, New Delhi in the name of Mrs Radha Rani
5. Attested copy of the water bill dt PW-7/5 25.11.2017 in the name of Mrs Radha Rani
6. Attested copy of payment receipt dt PW-7/6 11.08.2016 in the name of Mrs Radha Rani
44. PW8-Sh. Bharat Singh is the witness from Okhla Telephone Exchange. He has proved the attested copies of the application form submitted by Smt. Meena Chadha for telephone connection at their residence C-778, First Floor, New Friends Colony, New Delhi with their department. The same is Ex.PW8/1 (colly).
45. Defendant in support of their case examined Mrs Meena Chadha as DW1. She tendered her evidence by way of affidavit Ex.DW1/1 and relied upon the following documents:
Sr Document Exhibit No.
No.
1. Site plan of the property DW-1/A
2. Sanction plan DW-1/A1
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016
38
3. Perpetual lease deed of the property Already D1
(COLLY)
4. Will dated 15.2.1984 of Mrs Motia Rani Sethi D6
5. Affidavit of Mr Harish Kumar Sethi Already Ex.D7
6. Affidavit of Ms Promila Sethi Already Ex.D8
7. Affidavit of Mrs Dolly Chadha Already Ex.D9
8. Copy of attorney dated 15.2.1984 in favour of Ex.DW-1/G
Mr Chander Mohan Chadha (OSR)
9. Death certificate of Mrs Motia Rani Sethi Ex.DW-1/H
10. Building construction agreement Already
Ex.PW-1/9
11. Building construction agreement Already
Ex.PW-1/10
12. Account statement of the plaintiff (must be DW-1/I-1(OSR)
defendant) and her husband
13. Demand notice dated 27.11.2007 Already Ex.P1
14. Reply dated 4.12.2007 Already Ex.P2
15. Photographs Already Ex.D-13
46. I have heard the arguments of both the sides and have gone through the record of the case including the judgment cited by the Ld. Counsel for plaintiffs.
ARGUMENTS ADVANCED BY SH. SHEKHAR GUPTA, LD. COUNSEL FOR PLAINTIFFS
47. It is argued by Ld. Counsel for the plaintiff that before the plaintiffs acquired rights and interest in the suit property, it had been sold twice. It is submitted that the original allotee Late Smt. Motia Rani Sethi sold the property bearing no. C-778, New Fiends Colony, New Delhi to defendant no. 1 vide Ex.PW1/1 to Ex.PW1/4 all dated 15.02.1984. Out of the said property, defendant no. 1 sold the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 39 suit property to defendant no. 3 and 4 and their deceased son vide Ex.P1/5 to Ex.PW1/16 all dt 19.10.1988 and defendant no.3 and 4 further sold the suit property to plaintiffs vide Ex.PW1/18 to Ex.PW1/35 all dated 14.09.1994. Each successive transfer from the initial allottee to the subsequent purchaser was carried out by executing same nature of documents with the same contents viz. agreements of building contract, agreements to sell, Wills, Affidavits, indemnity bonds, receipts, General Power of Attorney's, Special Power of Attorney's etc. The various documents executed in each successive transfer are thus Ex.PW1/1 to Ex.PW1/35. It is argued that a bare reading of Ex. PW1/1 to Ex.PW1/35 would show that the same are nothing but the documents transferring title in the suit property to the purchasers detailed above. It is argued that though the documents executed by each party were not strictly the documents of sale yet from a reading of various clauses of the documents and from harmonious reading of the same in light of each other, it would be clear that the same are nothing but documents of sale of the property. It is argued that the sole reason for non-execution of the registered sale deed was that the property was a lease hold property and a registered lease deed could not have been executed unless and until the original seller would have applied for the conversion of the property from lease hold to freehold, however, what was transferred by virtue of the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 40 above mentioned documents was the ownership rights in the suit property. It is also argued that there was no scheme of the DDA for conversion of leasehold property to freehold, floorwise which was a major hurdle in getting the conversion done.
48. The counsel argues that defendant no.1 & 2 had on various occasions made statements of admissions before the Police as well as MCD that the defendant no.1 & 2 had sold the suit property and that they are not the owners of the same any more. In support of his arguments, the Ld. Counsel has taken this court through police complaint dt 24.12.2005 Mark A, Ex.PW4/14 & Ex.PW4/18 namely copy of assessment order dt 01.02.1993 w.r.t the property in hands of Smt. Meena Chadha and copy of assessment order dt 08.08.1996, which is the part of record maintained in the MCD office and which was proved by the summoned witness PW4-Sh. Chander Pal, witness from House Tax Deptt. MCD.
49. In the Ex.PW4/18 i.e. the order dt 08.08.1996 passed by Special Cell, MCD in favour of Meena Chadha, it is clearly stated that the assesse (Smt. Meena Chadha) purchased the plot for Rs. 3 lacs and entered into Agreement to Sell with Kanodias (defendant no. 3 and 4) for construction of building with understanding that the Basement, Ground Floor, Mezanine will go to the builder and the first floor and second floor with annexe will go to CS NO. 8147 of 2016 & CS NO. 10365 of 2016 41 share of owner. It was also stated that the building was completed in the year 1993 and on completion of building the basement and the ground floor with annexe was sold by the builder to two different persons who have been separately assessed and now the portion in the hand of assessee i.e. Meena Chaddha are the only first floor, second floor and the annexe, It is submitted that the said order was also counter signed by defendant no. 2-Mr. Chander Mohan Chaddha.
50. Ld. Counsel has further relied upon Ex.PW4/14 -
Assessment order of Special Cell, MCD qua the property of Meena Chadha passed after a personal hearing to Sh. C.M. Chadha (defendant no.2). It was stated that the defendant no.2 has filed the copy of agreement to sell and purchase etc with a request to decide the rateable value w.r.t the portion in his possession i.e., the first floor, second floor and four servant quarters. It is further submitted that it was also mentioned therein that in the statement dt 22.01.1996, defendant no.2 had stated that the basement, ground floor with the mezanine floor has been sold to two persons. It was also recorded by the officer concerned after perusing the file that the basement and the ground floor was purchased by Sh. K.K. Aggarwal and Radha Rani i.e. plaintiff's and has been assessed separately vide decision dt 17.07.1995.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 42
51. Ld counsel has also taken us through Ex.PW5/A1 to Ex.PW5/A6 which are the various documents filed by defendant no.1 before the MCD for mutation & sub division of the property no. C-778, New Friends Colony, New Delhi namely the statement of rent for the period 2002-2003, the indemnity bond dated 08.081996, application dated 09.08.1996, affidavit dated 08.08.1996 & affidavit dated 15.07.1996 in which it is stated by defendant no.1 that she had sold the ground, basement & mezzanine floor of the suit property to Defendant no.3 & 4 and their son Sh. Pankaj Kanodia and she only remains owner of the first and second floor.
52. It is argued that in Ex.PW5/A1, defendant no.1 & 2 have also admitted that the basement and the ground floor of the suit property is owned by the plaintiff herein.
53. The counsel submits that Ex.PW5/A1 to Ex.PW5/A6 are the documents obtained by the plaintiff under RTI and proved on record by the witness PW5 Surajveer Singh Chauhan, Private Secretary to the Commissioner MCD. He submits that the said documents were not found on the record of MCD when the record was produced by PW4. It is argued that the said witness has clearly stated in his evidence that the said exhibits were attested by him and he also identified his signatures at point 'A' on the said exhibits and further submitted that he had attested the said documents after seeing the originals on the official record.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 43 It is argued that the witness also stated that the plaintiff herein are the owner of the suit property as per the record of the MCD.
54. It is further argued that Ld. Counsel for defendant no.1 & 2 had also put a question to the said witness during cross-examination that whether he was a public Information officer at this time, which was replied in negative. It was also asked as to who was the PIO at that time, to which it was stated that at that time, there was no provision of PIO in the RTI Act, 2001 and the application was made to the competent authority i.e. the Assessor and Collector. It is submitted that PW5 was the Assessor & Collector at the relevant time as stated in his cross- examination and hence competent to supply the documents under the RTI and even the copy of the application of the plaintiff filed under the RTI was Exhibited as PW5/B and the signatures of PW5 were identified by him at point A. He also identified his signatures on Ex.PW4/3 i.e copy of assessment order dt 30.10.2011 in respect of first and second floor and Ex.PW4/10-Property Tax Return of defendant no.1 w.r.t first and second floor, which were supplied by him under the RTI.
55. It is submitted that to succeed in her ill motive to grab the suit property and realizing the lacunae in her case, Smt. Meena Chadha tried to put up a case that she became the owner of the suit property by bequeath and not by CS NO. 8147 of 2016 & CS NO. 10365 of 2016 44 purchase. It is argued that, however, by way of pleadings and by way of affidavit of evidence Ex.DW1/1, it has been admitted by defendant no.1 and 2 that they had purchased the property bearing no. C-778, New Friends Colony, New Delhi from Smt. Motia Rani Sethi for a sale consideration of Rs. 3 lacs by way of agreement to sell, registered Will, registered GPA, two receipts and three affidavits all dated 15.02.1984. However, they took a contradictory stands in the pleadings itself that they became owners of the suit property by virtue of the registered will of Smt Motia Rani Sethi. It is argued that the said stand taken by defendant no.1 and 2 stood falsified in view of the fact that Smt Motia Rani Sethi expired on 20.08.1998 whereas the defendant no.1 and 2 entered into the agreements with respect to the suit property with the Defendant No. 3 & 4 on 19.10.1988 ie even before the Will of Smt Motia Rani Sethi came into operation. It is argued that an attempt was made to cover up the said lacunae by falsely stating on oath in para 3 of the affidavit of evidence that Smt Motia Rani Sethi expired on 20.08.1988.
56. It is further argued that to show that the acutal transaction between the parties was that of sale and purchase and Smt. Meena Chadha did not acquire title by bequeath a question was put to her in the cross- examination dt 13.11.2018 regarding her relation with Smt. Motia Rani Sethi and it was stated by defendant no. 1 that CS NO. 8147 of 2016 & CS NO. 10365 of 2016 45 she does not recollect whether she had any relation with Smt. Motia Rani Sethi and she also admitted in the very next question that an agreement to sell and GPA have been executed simultaneously with the Will, with Smt Motia Rani Sethi. It is submitted that defendant no.1 even admitted that the money was paid to Smt Motia Rani Sethi at the time of execution of the above documents including the Will. She further stated that she became the owner of the property bearing no. C-778, New Friends Colony, New Delhi by virtue of agreement to sell itself and that a sale deed was also to be executed in respect thereof, which was not done due to the death of Smt Motia Rani Sethi. It is submitted that it was also admitted during the cross- examination that the defendant no.1 became the owner of the said property on the basis of the title documents in the nature of Agreement to Sell, GPA and Will for which the sale consideration was paid. The Ld. Counsel argues that from the cross-examination of Meena Chadha itself, it is clear that the defendant no.1 became the owner of the said property by way of purchase and not by way of will.
57. It is further argued that even in the police complaint dt 24.12.2005 Mark A submitted by Smt. Meena chaddha, it was stated by her that the said property had been purchased from its owner Smt Motia Rani Sethi by way of agreement to sell dt 15.02.1984 for a total consideration of Rs. 3 lacs and the said amount was paid vide Bank draft dt CS NO. 8147 of 2016 & CS NO. 10365 of 2016 46 12.12.1983 and 07.02.1984 and the said police complaint was admitted by her in para 12 of the reply on merits of the W.S in first suit.
58. It is further submitted that the contentions of the defendant no. 1 and 2 that they have never sold the suit property to Defendant no. 3 & 4 but had only entered into an agreement for construction with them is also false and contrary to the evidence on record.
59. It is further submitted that though the defendant no.1 and 2 admitted the execution of agreements with defendant no.3 and 4 in the preliminary submissions of the W.S in the first suit and in para 7 of the plaint and in para 2 of the replication in the second suit, she admitted the execution of Agreement to Sell with defendant no. 3 and 4 and their son, however, stated that the documents were sham and were never acted upon, yet, they never challenged the said agreements executed with defendant no. 3 & 4 and the said agreement continued to exist.
60. It is further submitted that in para 9 of the plaint of the second suit, it was also stated that the defendant no. 3 and 4 assigned their rights under the builder agreement to plaintiffs and on their request they allowed the plaintiffs to stay in the suit property and informed the MCD. It is submitted that in para 2 of the replication of the second suit it was stated that the rights similar to that of defendant no.3 and 4 had been passed on and created in favour of the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 47 plaintiffs and that the agreement to sell etc had been created only to secure the refund of the amount invested by defendant no.3 and 4 and the said documents were sham and were never enforced. It is further submitted that since the said documents namely agreement to sell, affidavit, Will GPA, indemnity bond and agreement of building construction were never challenged by the defendant no.1 and 2 and were allowed to exist, the said documents operate as a sale transaction between defendant no.1 and defendant no. 3 & 4.
61. Ld. Counsel further argues that a perusal of the documents produced and proved by PW4, who is the official from the House Tax Department from MCD, would also show a separate assessment of house tax have been made in favour of the plaintiffs and the defendant no.1 and 2 for the floors respectively owned by them. A separate assessment has been made in favour of the plaintiff with respect to the suit property which includes the basement and the ground floor and a separate assessment has been made in favour of defendant no.1 and 2 with respect to the first floor and second floor. It is argued that in the entire correspondence with MCD, the defendant 1 and 2 have stated themselves to be owners of first floor and second floor only which clearly shows that they had actually sold the suit property retaining with them only the rights in the first and second floor.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 48
62. Ld. Counsel further argues that the defendants no.1 and 2 have also taken contradictory pleas in the pleadings w.r.t the status of agreement to sell etc executed with defendant no.3 & 4. It is further submitted that according to the convenience the defendant no.1 and 2 have averred that the said agreements were to secure the investment made by defendant no.3 and 4 and at some places, it has been averred that the said agreements were sham, also averring at other places that the said agreements were given up and were never acted upon. It is further submitted that defendant no.1 and 2 never challenged the documents and the mutation in favour of the plaintiffs and never even challenged the documents in favour of defendant no.3 and 4, rather have themselves made statements before the MCD that the said portions belongs to the plaintiff and defendant no.3 and 4. In this regard, the Ld. Counsel has taken us through police complaint dt 24.12.2005-Mark A, admitted by defendant no.1 and 2 in para 12 of the reply on merits of the W.S in the first suit, through the MCD record and through the pleadings of defendant no.1 and 2.
63. It is further submitted that the ill-intentions of defendant no.1 and 2 and that they have not come to the court with clean hands would further be established by the false statements given by defendant no. 1 and 2 in her cross-examination dt 13.11.2018 wherein it was stated that no agreement except the building construction agreement CS NO. 8147 of 2016 & CS NO. 10365 of 2016 49 dt 19.10.1988 was executed at that time by defendant no.3 and 4 and their family. It is further submitted that the said statement was directly contradictory to their pleadings and the documents mentioned above. The relevant excerpt of the same is reproduced hereunder:
"I know the Kanodia's and I have had dealings with them. Mr. Bishal Lal Kanodia was the morning walker friend of my husband. A building construction agreement dt 19.10.1988 was executed between me, Bishan Lal Kanodia, Suman Kanodia and Pankaj Kanodia. No other agreement except the building construction agreement dt 19.10.1988 was executed between Kanodia's and me.
Q. I put it to you that in addition to building construction agreement and agreement to sell, power of attorney, Will and affidavits were executed by Kanodia's in your favour ?
Ans. There was only a building construction agreement entered into with the Kanodia's. If the Kanodia's hve prepared any other document it is only by way of security.
Q. Whether ay such documents besides buidling construction agreement were executed by you in favour of Kanodia's ?
Ans. I have not executed any other document besides building construction agreement. Any other document is for the purposes as deposed above. Q. Do you have the complete knowledge of the facts of the present case ?
Ans. I am aware of the facts as a layman and not in the legal parlance.
(at this stage, Ex.PW1/5 to Ex.PW1/6 are shown to the witness).
I identify my signatures on Ex.PW1/5 to Ex.PW1/6. Vol. All these documents are for the purposes of security in favour of the Kanodia's. As a layman this is all that I can state in respect of these documents.
Q. I put it to you that the documents Ex.PW1/5 to Ex.PW1/16 signed between you and Kanodia's pertains to the basement, messanine, ground and annexe of the said property ?
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 50 Ans. It is incorrect. The garrage and annexe had already been constructed till 1985. The agreement was for overall construction."
64. It is further submitted that after the execution of the documents Ex.PW1/8 to 1/10 i.e. builder construction agreements and Ex.PW1/5 to 1/7 & 1/11 to 1/16 all dt 19.10.1988 , the defendant no.1 and 2 was left with no right, title or interest of any nature whatsoever in the suit property and lateron, by virtue of the documents Ex. PW1/18 to Ex.PW1/35, executed by defendant no. 3 and 4 in favour of the plaintiff on 14.09.1994, the plaintiffs became the owners of the suit property and thus defendant no.1 and 2 have no right and authority to challenge the status, title and possession of the plaintiffs in the suit property. It is further submitted that by virtue of the judgment in Suraj Lamp & Industries Pvt Ltd. vs State Of Haryana& Anr -Special Leave Petition (C) No. 13917 of 2009 decided on 11 October 2011, the plaintiffs herein are the owners of the suit property as it was held in the said judgment that if the documents i.e. SPA, GPA, Will etc have been acted upon by the Municipal or the revenue authorities to effect mutation, the same shall not be disturbed merely on account of the decision in the judgment.
65. It is argued that defendant no. 3 and 4 have never disputed their transaction with the plaintiff dt 14.09.1994 by which they have sold the suit property to the plaintiff CS NO. 8147 of 2016 & CS NO. 10365 of 2016 51 herein. It is further submitted that since 14.09.1994 till December, 2005, the plaintiffs were in settled occupation and physical possession of the suit property to the knowledge of defendant no.1 and 2, who never disputed the title and possession of the plaintiff and for the first time the suit was filed by them in January, 2008.
66. As to the issue of limitation, it is argued by Ld. Counsel for plaintiff that the second suit is barred by limitation as admittedly and to the knowledge of defendant no.1 and 2 the plaintiffs came into possession of the suit property in Sept, 1994 as owners and were living in the said premises till 2004 whereafter they shifted to their other house. It is argued that the said suit has been filed in January, 2008 i.e. after the expiry of almost 30 years and hence is barred by limitation and even the reliefs of declaration of title and cancellation of documents are barred by limitation.
67. As to the issue of bar of section 41 (h) of SRA in the first suit, it is submitted by Ld. Counsel for the plaintiff that the bar of section 41 only applies upon the suit for injunctions and the present suit is for possession as well as declaration qua the possessory rights of the plaintiffs and hence section 41 is not applicable to the present case.
68. As to the issue of privity of contract framed in the first suit, it is argued by Ld. Counsel for the plaintiffs that the relief of injunction and declaration can be even sought against the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 52 stranger and there is no requirement of any contract with the party against whom such relief is sought.
ARGUMENTS ADVANCED BY SH. YASHVEER SETHI, LD. COUNSEL FOR DEFENDANTS
69. Per contra, it is submitted by ld. Counsel for defendant no. 1 and 2 that the plaintiffs have not produced any document to establish their ownership, as alleged and since the plaintiffs do not have any registered conveyance deed/sale deed in their favour, they cannot be held to be the owners in view of the judgment in Suraj Lamps (supra) and also in view of section 54 of TP Act r/w section 17 and 49 of the Registration Act. It is further submitted that in the absence of the registration, the documents relied upon by the plaintiff are also inadmissible in evidence and cannot be looked into.
70. It is argued that in the prayer in the suit, the plaintiffs have not sought any declaration as to their title or ownership and in the absence of any prayer for such a declaration, the relief sought cannot be granted and even otherwise, no consequential relief has been prayed and therefore, the suit is not maintainable.
71. Ld. Counsel further argues that the suit of the plaintiff is not maintainable as per the provisions of section 41 of SRA. It was argued by the Ld. Counsel for defendant no.1 & 2 that equally efficacious remedy of Specific CS NO. 8147 of 2016 & CS NO. 10365 of 2016 53 Performance of Contract was available with the plaintiffs and therefore, the present suit is barred as per the provisions of section 41 (h) of The Specific Relief Act.
72. As to the issue w.r.t privity of contract framed in second suit, it is argued that the plaintiff do not have any privity of contract with defendant no.1 and 2 and the transaction if any, has been with the defendant no.3 and 4 who have no right, title or interest in the suit property and therefore, the relief if any could have been claimed only against defendant no. 3 an 4 and the suit is not maintainable in the present form against defendant no.1 and 2. It is argued that the plaintiffs by way of the present suit are seeking a relief to bind the defendant no.1 & 2 by the agreement executed by defendant no.3 & 4 in favour of the plaintiffs and since the said agreements have not been executed by defendant no.1 & 2 with the plaintiffs, there is no privity of contract and hence the suit is not maintainable.
73. It is argued that the property in question is a lease hold property of DDA containing a specific bar on sale without the permission of DDA and since no permission from DDA has been sought in this regard, no relief can be granted to the plaintiff, contrary to the said lease agreement.
74. On merits it is argued that the property was never sold to defendant no.3 and 4 and their son and defendant no.1 and 2 claimed the rights in the suit property only through the registered Will executed by Smt. Motia Rani CS NO. 8147 of 2016 & CS NO. 10365 of 2016 54 Sethi in favour of defendant no.1 and has not relied upon the Agreement to Sell, Receipt, GPA dt 15.02.1984.
75. It is further argued that the suit property was never sold to the defendant no.3 and 4 and their son and a perusal of EX.PW1/5 to Ex.PW1/7 would show that the agreements to sell were actually not for the purposes of sale of the suit property but for construction of the same. No right, title or interest accrued in favour of defendant no.3 and 4 and, therefore, they could not have conveyed any better title to the plaintiffs. It is argued that the defendant no. 1 and 2 were only bound to return the money to defendant no. 3 and 4 and no further sale transaction transpired between the parties.
76. It is further argued that the testimony of PW5 cannot be relied upon as it has been established in the cross- examination of the said witness that he was not the public information officer at the relevant time and, therefore, could not have supplied any documents to the plaintiff under the RTI. It is further submitted that no complaint or departmental inquiry was conducted at all by PW5 even though he claims that the documents were changed on the record. It is further submitted that it was also admitted by the said witness that he has not gone through the entire documents and since the documents sought to be proved by him were not a part of the original record of MCD, a cloud is cast on their authenticity and cannot be relied CS NO. 8147 of 2016 & CS NO. 10365 of 2016 55 upon and therefore, the alleged admission of defendant no.1 and 2 in the said record cannot be looked into.
77. Ld. Counsel argues that before the Will executed by Smt. Motia Rani Sethi in favour of defendant no. 1 came into operation, defendant no.2 was exercising the rights as the attorney of Smt. Motia Rani Sethi by virtue of GPA dt 15.02.1984 Ex. DW1/G in his favour. As to the payment of house tax and utility bills by the plaintiff, it is argued that it was the responsibility of the plaintiff as defendant no.3 and 4 were allowed to enjoy the possession of suit property by defendant no.1 and 2, however, the mutation in MCD records and payment of House tax do not create any ownership etc.
78. As to the issue of limitation, it is argued by Ld. Counsel for defendant no.1 and 2 that the suit of defendant no. 1 is not barred by limitation as the cause of action in their favour arose in 2005 when the plaintiffs started construction in the suit property and alleging title in their favour.
79. Rebutting the arguments of Ld. Counsel for plaintiff that after the sale of the property in question to defendant no.3 and 4, the defendant no.1 and 2 have no right to dispute the right of the plaintiff, it is submitted that the defendant no.1 and 2 never accepted the factum of sale to defendant no.3 and 4 and even in view of the judgment in Suaj Lamps (supra), the said documents namely the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 56 agreement to sell, GPA, Affidavit etc dt 19.10.1988 do not convey ownership title in the suit property.
80. As to the argument of the plaintiff that the cancellation of the documents in favour of defendant no.3 and 4 has not been sought by defendant no.1 and 2, it is submitted that since the said documents, being unregistered documents and being hit by section 17 and 49 of the Registration Act, do not convey any right, title or interest in favour of defendant no.3 and 4 or the plaintiff, there was no requirement to seek any declaration or cancellation.
81. Rebutting, the argument of Ld. Counsel for plaintiff that mutation has been effected by the Municipal authorities on the strength of the documents in favour of the plaintiff, therefore, the said documents are to be treated as ownership documents in view of the judgment in Suraj Lamps case (supra), it is submitted that the superior lessor of the land is DDA and the mutation if any, was to be effected in the records of the DDA only. It is further submitted that the mutation carried out by MCD is only for the purposes of collection of property tax and does not confer any ownership rights in favour of defendant no. 3 and 4 or the plaintiffs.
82. As to the factum of execution of the documents in favour of defendant no.3 and 4 in 1988 before the death of Smt. Motia Rani Sethi in 1998, Ld. Counsel argues that CS NO. 8147 of 2016 & CS NO. 10365 of 2016 57 the agreements were executed by defendant no.2 who was holding Regd. POA of Smt. Motia Rani Sethi.
83. It is further submitted that the date of death of Smt. Motia Rani Sethi which was wrongly recorded in cross- examination of DW1 was an inadvertent and a typographical mistake.
84. Ld. Counsel argues that the story of the plaintiff is not believable as the property which was agreed to be sold in 1988 for Rs.20.20 lacs in an unbuilt condition could not have been sold for 18.50 lacs in 1994.
REBUTTAL ARGUMENTS OF LD. COUNSEL FOR PLAINTIFF
85. Rebutting the arguments of Ld. Counsel for defendant, it is submitted by Ld. Counsel for plaintiff that considering that the suit property was a lease hold property and the documents in favour of plaintiffs are in the nature of Agreement to sell, GPA, possession letter, receipts Etc, no relief for declaration of title was sought as the same could not have been sought as per law. It is further submitted that even the consequential relief of injunction was not required as the possession of the plaintiffs is admitted by the defendant no.1 and 2 and even otherwise, the second suit filed by defendant no.1 and 2 is one for possession of the suit property which establishes that the plaintiffs are in possession of the same. It is further submitted that there was even no requirement to seek any CS NO. 8147 of 2016 & CS NO. 10365 of 2016 58 relief of specific performance as the vendor of the plaintiffs i.e. defendant no.3 and 4 have not disputed the documents of the suit property executed by them in favour of the plaintiffs and further since even as per defendant no. 1 and 2 there was no privity of contract with them, there was no occasion to seek the relief of specific performance.
86. Ld. Counsel further argues that even as per the judgment in Suraj Lamps (supra) the plaintiff has a right to seek the conversion of the property to free hold on the basis of GPA etc.
87. As to the contention of the Ld. Counsel for defendant no.1 and 2 that no proceedings were initiated for the alleged removal of the documents from the MCD file, it is submitted that an application u/s 340 Cr.PC was also filed on behalf of plaintiff.
88. Ld. Counsel further argues that the contention of defendant no.1 and 2 that the electricity and water meters and the mutation in the MCD record was only because they were allowed to continue in possession and were using the premises, does not inspire confidence and is untenable as no owner of a property would allow mutation in the name of permissive user just for the purposes of the payments of the bills and the taxes. It is further submitted that the falsity of averments of defendant no.1 and 2 would be established from the very fact that it has been averred by the defendants that the mutation was done in CS NO. 8147 of 2016 & CS NO. 10365 of 2016 59 the name of the plaintiffs as they were using the suit premises and in the police complaint dt 24.12.2005 it has been stated that the plaintiffs have encroached upon the suit property and they are in the process of taking remedial steps and despite stating so, no steps whatsoever were taken for cancellation of the documents in favour of the plaintiff and no representation have been made before MCD authorities in this regard.
89. For the purposes of convenience, the issues in the second suit shall be decided first. At the cost of repetition, it is again clarified that the second suit is filed by Smt. Meena Chadha who is defendant no.1 in the first suit and the plaintiffs in the first suit are arrayed as defendant no.1 to 4 herein. However, they shall be referred in the same manner as mention in para 2 above.
REASONS AND FINDINGS ON THE ISSUES FRAMED IN THE SECOND SUIT:
Issue no. 1:
1. Whether the plaintiff is entitled to a decree of declaration of title of ownership, as prayed in prayer clause (a) of the plaint? (OPP)
90. The defendant no.1 has stated in her pleadings that she has purchased the property from Smt. Motia Rani Sethi on the basis of Agreement to Sell against valuable consideration of Rs. 3 lacs, however, she has become the absolute owner on CS NO. 8147 of 2016 & CS NO. 10365 of 2016 60 the basis of the Will dt 15.02.1984 Ex.PW1/3 executed by Smt. Motia Rani Sethi in her favour which came into operation after the death of Smt. Motia Rani Sethi in 1998.
91. Before adverting to the facts of the case to decide the present suit, it is important to take note of the settled position of law i.e.
i). Relief of declaration is an equitable and discretionary relief. It cannot be claimed as a matter of right and even if the condition of S.34 of Specific Relief Act are met, still the declaration can be declined by the court considering the circumstances of the case.
ii). In Suraj Lamp & Industries Pvt Ltd. vs State Of Haryana& Anr -Special Leave Petition (C) No. 13917 of 2009 decided on 11 October 2011, it was held by hon'ble Supreme Court that the documents which have been already been acted upon by the Municipal authorities need not be disturbed, thus offering protection to the purchasers whose names have been mutated in the relevant records before the date of passing of the judgments.
92. The Ld. Counsel for defendant no.1 and 2 had argued that he only relies on the Will dt 15.02.1984 executed by Smt. Motia Rani Sethi in favour of defendant no.1. In my considered opinion, the defendant no. 1 is not entitled to the declaration of the ownership of the suit property and the said relief is declined for the following reasons:-
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 61
a). Defendant no.1 has transferred her rights in the suit property for valuable consideration alongwith transfer of possession even before the Will dt 15.02.1984 came into operation.
In the present case, the defendant no.1 has purchased the rights of Smt. Motia Rani Sethi in the property bearing no. C-778, New Friends Colony, New Delhi for a valuable consideration of Rs. 3 lacs vide Ex.PW1/1 to Ex.PW1/4. Defendant no. 1 further transferred the rights in the suit property to defendant no. 3 and 4 and their son late Pankaj Kanodia by executing agreement to sell, agreement of building construction, Will, affidavit and indemnity bond Ex.PW1/5 to Ex.PW1/16. Further, Ex.PW1/5, Ex.PW1/6, Ex.PW1/14 & Ex.PW1/16 were also executed by Sh. C.M. Chadha (defendant no.2 ) as attorney of Smt. Motia Rani Sethi vide Ex.DW1/G (OSR) dt 15.02.1984. The entire transaction is against the receipt of valuable consideration of Rs.20,20,000/- as would be evident from the reading of the above documents. Admittedly possession of the suit property except the annexe no. 1 had also been handed over to defendant no.3 & 4.
Thereafter, defendant no.3 & 4 exercising their rights created in their favour by virtue of the above documents further executed agreements to sell, Receipts Wills, Regd. POAs (General and Special), Possession certificates, indemnity bonds, No Objection Certificates CS NO. 8147 of 2016 & CS NO. 10365 of 2016 62 and Affidavit all dt 14.09.1994 Ex.PW1/18 to Ex.PW1/35 in favour of plaintiffs thereby transferring the rights in the suit property to the plaintiffs. Again the said transaction was against receipt of valuable consideration of Rs.18,50,000/-. Admittedly since then, the Plaintiffs have been in the possession of the suit property and the name of the plaintiffs have been mutated in the records of MCD.
Thus it is clear that all the above transactions have happened prior to 1998 and defendant no.1 had already transferred her rights in the suit property before the Will of Smt. Motia Rani Sethi dt 15.02.1984, came into operation. Therefore, there remains no question of becoming owner by virtue of the said Will dt 15.02.1984.
Further, for all these years since 1988, the defendant no.1 & 2 did not claim any rights in the property and the possession was peacefully enjoyed by defendant no.3 and 4 and thereafter by plaintiffs. However, now defendant no.1 & 2 have challenged the rights of plaintiffs claiming title of ownership contending that the documents of Agreement to Sell, GPA, Affidavit and receipts etc. do not create any rights in favour of plaintiff in view of judgment of Suraj Lamp (supra) and for the want of registration.
It would be interesting to note that in support of her own title, the defendant no.1 claims that she purchased the suit property for valuable consideration by executing documents namely agreement to sell, GPA, receipt etc, but CS NO. 8147 of 2016 & CS NO. 10365 of 2016 63 since the sale could not be completed due to paucity of funds of registration, she had become the owner of the property by operation of Will in the year 1998 but challenges the documents of same nature executed in favour of plaintiffs.
Such a contention cannot be upheld in favour of a person who has prior to the Will coming into operation, willingly and consciously, has transferred her rights in the suit property for valuable consideration and is now trying to back out of the transaction as she believes that now her title has become perfect by operation of Will and can use the same to take advantage of the rise in prices of the property. Permitting such a claim would be against judicial conscience and would be inequitable.
Another contention of the Ld. Counsel for defendant no.1 was that the documents Ex.PW1/5 to Ex.PW1/7 and Ex.PW1/11 to Ex.PW1/16 were sham documents and were only executed for the purposes of securing the rights of defendant no.3 and 4 for refund of the amount of Rs. 20.20 lacs invested by defendant no.3 and 4 in the construction of the said property. However, a reading of Ex.PW1/8 to Ex.PW1/10 would show that they contain various contradictory clauses where in at places the defendant no.3 and 4 have been stated as owners of the super structures amount and at other places they have been stated to be the investors in the construction of the property. Therefore, to CS NO. 8147 of 2016 & CS NO. 10365 of 2016 64 draw the real intent of the parties, this court has taken support from the other documents viz agreements to sell, Wills, affidavits and indemnity bonds Ex.PW1/5 to 1/7, 1/11 to 1/16 all dt 19.10.1988. A reading of the said documents alongwith Ex.PW1/8 to Ex.PW1/10 would only lead to one conclusion that the above documents were not intended to operate as security of rights of defendant no.3 and 4 but as documents of sale. Also, the story behind the execution of the said documents, put forward by the defendants is also very interesting, however, does not inspire confidence and cannot be believed to be true to any extent of imagination. No man of ordinary prudence would agree to invest a huge amount in construction alongwith a payment of a security amount of Rs.20,20,000/- to the owner, without having any title in the property and to just acquire the right to reside in the said property till his invested amount is returned to him thus placing himself in a risk of being thrown out at any moment which may be a short period of a few days or month or few years.
It has also been averred that the above documents were executed by defendant no.2 as the GPA holder of Smt. Motia Rani Sethi, however, even the said contention has no legs to stand as firstly, it has been clearly stated in the affidavit of Sh. C.M. Chadha Ex.PW1/14 that the GPA dt 15.02.1984 executed by Smt. Motia Rani Sethi in favour of defendant no. 2 was executed at the request of defendant CS NO. 8147 of 2016 & CS NO. 10365 of 2016 65 no.1 and secondly, the said documents have been signed by Smt. Meena Chadha as well. If defendant no.1 had not acquired the right in the suit property by purchase in 1984, then there was no occasion for defendant no.1 to sign the said documents.
Even if the argument of the counsel for defendant no1 and 2 is accepted that the said documents were executed by GPA Holder of Smt. Motia Rani Sethi, still the defendant no.1 would be left with no rights in the suit property as before the Will came into operation, Smt. Motia Rani Sethi had through her GPA, transferred the rights in the suit property to defendant no.3 and 4 and their son-Sh. Pankaj Kanodia as has already been held in foregoing part of this judgment.
Further, the factum of sale to the defendant no.3 and 4 and the factum of ownership of the plaintiffs has also been admitted by the defendant no.1 before the filing of the suit. The said facts are also supported by the evidence on record which is discussed in detail hereunder.
A perusal of Ex.PW4/18 which is assessment order by the Dy. Assessor & Collector, Special Cell, MCD dated 08.08.1996 would show that it has been mentioned therein that the basement and the ground floor with the annexe were sold by the builder to two different persons who have already been assessed separately in their individual hands and the portion in the hands of assessee Smt. Meena Chadha are the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 66 first floor, second floor and the annexe. As stated in the said order, the assessment was carried out on the filing of certain papers by the assessee. The receiving at the end of the said document is that of defendant no.2 on behalf of defendant no.1 which clearly shows that the said noting was in the notice of both the defendants no.1 & 2, however, was never challenged by them. The said document has been proved by PW4 Sh. Chandra Pal, AZI House Tax Department, MCD, who stated himself to be dealing with the files relating to the property since January 2010.
In Ex.PW4/14, which is the assessment order dated 01.04.1992, it has been stated that Sh. C.M. Chadha in his statement dt 22.01.1996 has stated that the property in the name of his wife Smt. Meena Chadha is the first floor and second floor and four servant quarters and the basement and the ground floor with mezanine floor has been sold to two persons. Further on perusing the file, it has been stated by the official that the basement and the ground floor were purchased by Sh. K.K. Aggarwal and Smt. Radha Rani and have been separately assessed vide two separate decisions dt 17.07.1995. It has also been mentioned that on inspection of the property, it has been found that the basement, ground floor alongwith mezanine floor were occupied by Aggarwals i.e. plaintiff's Perusal of the said order further shows that the said order was only passed after affording a personal hearing to the assessee and the same was attended by Sh. C.M. Chadha, husband of CS NO. 8147 of 2016 & CS NO. 10365 of 2016 67 Assessee, who had also filed the copies of Agreement to Sell and purchase and the other documents on the said date requesting to decide the portions in his possession under section 61 of DRC Act. At the end of the document, it has also been mentioned that the copy has been sent to Smt. Meena Chadha.
Further, in the documents of MCD Record i.e. Ex.PW4/15-Copy of the letter dated 29.3.1996, Ex.PW4/17- Copy of letter received from Mrs Meena Chadha dated 30.4.1996, Ex.PW4/21-copy of letter dated 03.05.1999 received from Mrs. Meena Chadha, Ex.PW4/23- copy of letter dt 13.03.2000 received from Mrs. Meena Chadha, and Ex.PW4/28-letter dt 15.04.2000 received in MCD dt 17.04.2000 from Mrs. Meena Chadha, Smt. Meena Chadha has represented herself to be the owner only of the first and second floor of the suit property. It is important to note that the above documents bear the date which is after the date the plaintiffs have come into the possession of the suit property. Further in Ex.PW4/17, it was stated by Smt. Meena Chadha that she has already deposited the proof that she only owns the first and second floor of the property. Also, in the Ex.PW4/25- copy of notice u/s. 127 of the DMC Act for the year 1999-2000, Smt. Meena Chadha has been shown to the owner of the first floor and second floor.
A perusal of testimony of PW4 shows that an objection was raised to the mode of proof of the documents proved by CS NO. 8147 of 2016 & CS NO. 10365 of 2016 68 the witness on the ground that he is not competent to prove the said documents as he is neither the executant nor familiar with the writing and signatures of the executant of the said documents. However, it is to be borne in mind that the said witness has produced the record of the MCD Department and was only a witness to produce the record and it is not necessary that he should be either the executant or be familiar with the signatures of the executant. It is sufficient if he has appeared on the summoning of the court and has produced the document summoned. There was no objection by the counsel for the defendants that the record produced was not the record of the MCD. And therefore, the said objection was without any basis. Further no evidence has been led by the defendants to dispute the credibility of the record produced by the said witness.
The plaintiff also examined PW5 Sh. Surajvir Singh Chauhan from MCD office to prove the documents, which were exhibited as Ex.PW5/A1 to Ex.PW5/A6. The said documents are namely the statement of rent for the period of 2001-2003, indemnity bond, the application for mutation and sub division of property no. C-778, New Friends Colony, New Delhi and the affidavits of Smt. Meena Chadha which were filed by her before the MCD for the purposes of separate assessment of the first and second floors in her favour. It was submitted by the plaintiff that the said documents were obtained by him under the RTI Act and during the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 69 examination of PW4, it transpired that the same were not on the record of the MCD and were removed. It was submitted that to prove the said documents, PW5 was called as a witness as the said documents were supplied and attested by the said witness. It was argued that in the said documents, it has been admitted by Smt. Meena Chadha that the property in question has been sold to Defendant no.3 & 4 and their son Late Sh. Pankaj Kanodia who have subsequently sold the same to the subsequent owners.
A perusal of the cross-examination of the said witness shows that he was consistent in his testimony and has stated that the said documents were supplied by him being the competent authority i.e. the Assessor and Collector at the relevant time to the plaintiffs vide I'd No. 42 upon the application of the plaintiffs dt 09.01.2006 received in his office on 12.01.2006. The copy of the application was exhibited as PW5/B which was a part of the record of the MCD brought by PW4. The receipt of the charges for supply of the documents under RTI is mark 4/E and the receipt of the fee under the RTI is Mark 4/F. The witness also identified and confirmed his signatures at point A on Ex.PW5/B and Ex.PW5/A1 to Ex.PW5/A6. The witness also confirmed having delivered the copies of Ex.PW4/10 i.e. copy of property tax return filed by Smt. Meena Chadha for first floor and second floor and Ex.PW4/3 i.e., copy of the assessment order dt 30.10.2001 in respect of the first and second floor and CS NO. 8147 of 2016 & CS NO. 10365 of 2016 70 Ex.PW4/3 and also identified the signatures of his subordinate officer at point B on the said document. The witness further stated that the receipt regarding the receiving of the copies supplied by him was on the file. The witness also pointed out the initials and writing at portion mark X on Ex.PW5/B to show the receiving of the copies on 28th January.
A perusal of the cross-examination of the said witness would also show that it categorically denied the question that the documents in question were routinely attested by him without comparing the same with the originals. Further a suggestion was put that the originals of the said documents were never submitted to MCD by defendant no.1 and 2 and that the said documents were manipulated, forged and created in the witnesses office in collusion with and with the help of the plaintiffs. However, no evidence whatsoever was led by the defendants to disprove the said documents. Nowhere the signatures of Smt. Meena Chadha on the said documents has been denied. A perusal of the said documents shows that the stamp papers on which the said documents were executed were also purchased in the name of Meena Chadha. However, the defendants did not lead any evidence to show that the same was not purchased by her. The said documents are even notorised, however, no evidence was also led to show that no such documents were executed in the presence of the Notary or that the stamp of the Notary is also forged. It is also not disputed that the PW5 was the Assessor and CS NO. 8147 of 2016 & CS NO. 10365 of 2016 71 Collector at the relevant time. Further, the defendants have also not led any evidence to show that he could not have supplied the documents in question. This court has also compared the signatures of Meena Chadha on the said documents Ex.PW5/A1 to Ex.PW5/A6, with her signatures on the documents executed with Smt. Motia Rani Sethi Ex.PW1/1 to Ex.PW1/2 and also the documents executed with defendant no. 3 and 4 i.e. Ex.PW1/5 & Ex.PW1/6, Ex.PW1/8 & Ex.PW1/9 and has found the same to be completely matching. The above documents when read with the statement in the pleadings of defendant no.1 and 2 wherein it has been stated that the MCD was informed about the assignment of the rights in favour of Aggarwals, stands corroborated as there is not even a single document on the MCD record produced by PW4 and there is not even a single document produced by the defendants to show that MCD was informed regarding the assignment of the rights under the Builder Agreement rather the only information provided to the MCD in various documents is regarding the sale of the property to defendant no.3 and 4 and the subsequent sale to the plaintiffs. Even if the Ex.PW5/A1 to Ex.PW5/A6 are not considered and looked into, the factum of knowledge as well as admissions of the defendant no.1 and 2 qua the possession of the suit property of the plaintiffs as owners, is sufficiently proved by Ex.PW4/14 & Ex.PW4/18.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 72 Even in para 8 of the W.S of the first suit defendant no. 1 has admitted the filing of affidavit before the MCD. Para 8 of the plaint of first suit and corresponding para 8 of W.S of defendant no.1 is reproduced hereunder:
Para 8 of plaint of first suit:
"8. That the plaintiffs no.1 and 2 have been peacefully living in their premises and they have already been recorded as owners and duly assessed for payment of property taxes by the Delhi Municipal Corporation. The plaintiffs have continuously and regularly paid all their property taxes from 1994-95 onwards till date. The possession of the plaintiffs in the suit premises for the last about 12 years is not disputed and rather it is supported from various Govt. and public record."
Para 8 of W.S of first suit "8. Denied. The possession of the plaintiffs was permissive. As was agreed the plaintiffs were liable to pay the house tax and other charges for the amenities used by them in the said portion of the property. The mutation of the portion of the property for the purposes of payment of house tax does not create any title in the property. The plaintiffs never claimed any title in the property. The plaintiffs never claimed any title in the property hence the question of the dispute raised by defendants does not arise. The affidavits for the purposes of recovery of house tax was made with the MCD but the possession of the plaintiffs continued to remain as permissive."
It is also important to note that the names of the plaintiffs were already mutated in the MCD records in 1994 itself and, therefore, as per the judgment in Suraj Lamps case CS NO. 8147 of 2016 & CS NO. 10365 of 2016 73 (supra) their rights in the suit property, fructified on the date of mutation itself.
Thus it is clear that the defendant no.1 had transferred her rights in the suit property even before the Will came into operation and, therefore, she cannot be declared as owner of the suit property on the basis of the Will dt 15.02.1984.
b). Documents Ex.PW1/18 to Ex.PW1/35 executed in favour of plaintiff create valuable rights in their favour.
In Suraj Lamps case, it was held by the Hon'ble supreme Court in para 28 that Agreements to Sell, GPA, Affidavit, Will Etc if entered prior to passing of the said judgment, they may be relied upon to apply for regularisation of allotments/leases by developmental authorities. It was also held that if such document have been accepted and acted upon by the Municipal authorities to effect mutation, they need not be disturbed on account of this judgment. Para 26 of the judgment is reproduced hereunder:
"26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it CS NO. 8147 of 2016 & CS NO. 10365 of 2016 74 clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
Thus it is clear that Agreements to Sell, GPA, Affidavit, Will Etc documents if executed prior to 11.10.2011 i.e. the date of passing of judgment was not lifeless documents and they do create valuable rights in favour of the vendee to obtain mutaiton/regularization of lease etc. Also a person, whose name has already been mutated on the basis of such documents, would be entitled to protect his rights in the property created by such documents.
In the present case, defendant no.1 and 2 have executed Agreements to Sell, GPA, SPA, Affidavit, Will Etc all dated 19.10.1988 in favour of defendant no.3 and 4 and on 14.09.1994, the defendant no. 3 and 4 executed Agreements to Sell, receipts, possession certificate, NOC, SPA, GPA, Will, Affidavits Etc in favour of plaintiffs and thus a valuable right is created in favour of the plaintiffs to apply to the DDA for regularisation of the lease in their favour. Further since the name of the plaintiffs have already been mutated in the MCD record, he is sufficiently protected by the judgment in Suraj Lamps case(supra).
As far as the contention of defendant no.1 that Agreements to Sell, GPA, SPA, Will, Affidavits Etc all dt 19.10.1988 executed in favour of Defendant no.3 and 4 CS NO. 8147 of 2016 & CS NO. 10365 of 2016 75 and their son were sham documents has already been dealt in the foregoing part of this judgment and held to be without any merit.
The contention of defendant no.1 that Agreements to Sell, GPA, SPA, Will, Affidavits Etc all dt 19.10.1988 executed in favour of Defendant no.3 and 4 and their son were sham documents, already been dealt with in the foregoing part of this judgment and held to be without any merits.
c). Bar of Estoppel It has already been held above that defendant no.1 and 2 have admitted before the MCD that they have sold the suit property to defendant no.3 and 4 who have further sold it to the plaintiffs. It has also been admitted before MCD that the plaintiffs are the owners of the suit property. The defendant no. 1 and defendant no. 2 have also filed affidavits before the MCD in this regard. Also the documents Ex.PW1/5, Ex.PW1/6, Ex.PW1/14 & Ex.PW1/16 have been executed by defendant no. 2 acting at the request of defendant no.1 (as stated in Ex.PW1/14) and as GPA holder of Smt. Motia Rani Sethi, thus causing it to be believed that he has the authority to deal with the property on behalf of Smt. Motia Rani Sethi, the original allottee, causing defendant no. 3 and 4 to act, believing the representation and to pay an amount of Rs. 20.20 lacs CS NO. 8147 of 2016 & CS NO. 10365 of 2016 76 towards the purchase of the lease hold rights in the property.
The defendant no. 1 is thus estopped form claiming any ownership rights in the suit property.
d). Conduct of the defendants:
It is a settled law that a party who does not approach the court with clean hands is not entitled to any relief from the court and, therefore, the conduct of defendant no1 is important to be taken note of.
i). The defendant no.1 in the present case despite transferring the rights in the suit property by execution of documents Ex.PW1/5 to Ex.PW1/16 for valuable consideration in favour of defendant no.3 and 4 and their son Late Sh. Pankaj Kanodia and despite being aware of the execution of the similar documents Ex.PW1/18 to Ex.PW1/35 in favour of the plaintiffs, has after a lapse of almost 19 years (1988 - 2008) filed the present suit with an ill intent to take advantage of the rise in the prices of the property. Defendant no. 1 has tried to back out from the transaction after having enjoyed the benefit of the transaction i.e. consideration amount, for so many years.
The defendant no.1 has attempted to take advantage of a Will which came into operation in 1998 and has tried to abuse the process of law despite knowing that they have already transferred their rights in the suit property.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 77
ii). Secondly, in the affidavit of evidence Ex.DW1/1 defendant no.1 has very cleverly concealed the fact of execution of agreement to sell and the receipts signed by Smt. Motia Rani Sethi and had also not filed the said documents in her suit. Thus, concealing the important documents from the court.
iii). Thirdly in her cross-examination dt 13.11.2018 it was falsely stated by defendant no.1 that no other agreement except the building construction agreement dt 19.10.1988 was executed with defendant no.3 and their family. The relevant part of the cross-examination is already reproduced above.
iv). The defendant no.1 in her affidavit of evidence Ex.DW1/1 has falsely stated that Smt. Motia Rani Sethi died in 1988. Though the counsel for defendant tried to explain it as a typographical error yet he failed in his attempt as would be evident from a reading of cross- examination of Defendant no.1 dt 13.11.2018. The relevant part of affidavit of evidence Ex.DW1/1 and the cross-examination dt 13.11.2018 is reproduced as under:
Affidavit of evidence of DW1:
"....Smt. Motia Rani Sethi died on 20.08.1988 and copy of her death certificate is Ex.DW1//H....".
Cross-examination of DW1:
" Q. How and when you have become owner of the property no. C-778, New Friends Colony, New Delhi ? Ans. The property in which we have been residing i.e. no. C-778, New Friends Colony, New Delhi, an agreement to CS NO. 8147 of 2016 & CS NO. 10365 of 2016 78 sell was executed in 1984 and a Will was executed in 1984 in respect thereof and Smt. Motiya Rani Sethi expired in the year 1988 and after that I became owner of the property. Q. I put it to you that Smt. Motia Rani Sethi expired on
20.08.1988 and not in the year 1988. What do you have to say ?
Ans. I cannot say anything."
If the date of the death of Smt. Motia Rani Sethi was merely a typographical error, the same could have been explained in the cross-examination. But inspite of a specific question being put in this regard, defendant no. 1 still stated that Smt. Motia Rani Sethi expired in 1988.
v). A reading of the cross-examination of defendant no. 1 and the pleadings filed by her in the two suits would show that the defendant no.1 has been constantly changing her statement as to the mode of acquisition of title by her in the suit property. The relevant portion of the cross-examination dt 13.11.2018 and the pleadings of defendant no. 1 are reproduced hereunder:
Pleadings of Meena Chadha in both suits:
Para ii of preliminary submissions of the written statements filed by defendant no. 1 and 2:
"The defendant no.1 purchased the said property by way of agreement to sell dt February 15, 1984. The defendant no.1 paid the whole of the consideration and was given the posession of the plot in question.".
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 79 Para iii of preliminary submissions :
"............Smt. Motia Rani Sethi also executed a Will in favour of defendant no. 1. Smt. Motia Rani Sethi dies on August, 20, 1998. All other legal heirs of Smt. Motia Rani Sethi executed their affidavit confirming the sale of property in favour of defendant no.1. the defendant no.1, thus became absolute owner of the property."
Para 3 of reply on merits of the written statement of first suit:
"The purchase of property by defendant no.1 from Smt. Motia Rani Sethi is a matter of record. It is submitted that legally the property was bequeathed in favour of defendant no.1 by way of Will executed by Smt. Motia Rani Sethi, which became operative after her death. The Power of Attorney had been executed in favour of defendant no.2 only with a purpose to complete the transaction made by defendant no.1 with the allottee. No independant right had been created in favour of defendant no.2."
Para 3 of the plaint of second suit:
"Smt. Motia Rani Sethi unfortunately expired on 20th August, 1998. Upon her death, the plaintiff became absolute and exclusive owner of the property by way of her last Will." Cross-examination of DW1 :
" Q. Can you tell me how you became owner of the said property by Will or by sale transaction in terms of agreement to sell and General Power of Attorney ? A. I became owner by Will.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 80 Q. Had you paid any amount to Smt. Motiya Rani Sethi as consideration for execution the said Will in your favour with respect to the said property ?
Ans. When the agreement to sell and general power of attorney was executed at that time we have paid the amount to Smt. Motia Rani Sethi and Will was also executed alongwith all other documents.
Q. When you became owner of the said property whether at the time of execution of the documents i.e. agreement to sell, general power of attoeny and Will or after the death of Smt. Motia Rani Sethi ?
Ans. I became the owner on the basis of the agreement to sell itself. Sale deed was to be executed in respect thereof, however, Smt. Motia Rani Sethi died before the sale deed could be executed as we were not possessed with the sufficient funds for execution of the sale deed and therefore, as per Will we became the owner. No further payments towards sale consideration was to be made. The insufficient funds that I have deposed to earlier were the expenses required for execution of a sale deed. Q. Have you got the sale deed of the said property registered in you favour after the death of Smt. Motia Rani Sethi ?
Ans. Will itself is the wholly solely thing. Q. I put it to you that you did not become the owner on the basis of the Will of late Smt. Motia Rani Sethi ? Ans. After the death of Smt. Motia Rani Sethi we became the owner on the bsis of her Will. Q. I put it to you became the owner on the basis of the title documents in the nature of agreement to sell, CS NO. 8147 of 2016 & CS NO. 10365 of 2016 81 general power of attorney and Will executed by Smt. Motia Rani Sethi for a sale consideration paid by you ?
A. It is correct."
vi). The defendant no.1 filed a complaint dt 24.12.2005 Mark A before police stating that she has purchased the property from Smt. Motia Rani Sethi which is contrary to her stand in the suit that she has become owner of the property by virtue of the Will dt 15.02.1984. It is also stated in the said complaint that the plaintiffs are claiming to be purchasers of a portion of the said property on the basis of false documents and have got their name mutated in the records and she is in the process of taking remedial action, however, till date no complaint whatsoever has been filed before MCD. In fact the mutation has been carried out in the records of the MCD on the basis of the statements made by defendant no. 1 & 2. It has also been stated in the said complaint that even earlier the plaintiff has claimed the rights in the property on the basis of forged documents thus showing that she was aware of the existence of documents in favour of the plaintiffs from an earlier point of time, however, in the suit she claims that the plaintiffs for the first time alleged tiltle in the suit for injunction filed by her against the plaintiffs. It has also been averred in the written statement in the first suit that the plaintiffs never alleged title in thier favour and CS NO. 8147 of 2016 & CS NO. 10365 of 2016 82 therefore, no question of dispute being raised by defendant ever arose.
vii). The defendants no.1 has denied having made statements before MCD regarding the sale of the property to defendant no.3 and 4 and the ownership of the plaintiffs.
The defendant no.1 also denied the execution and submission of document Ex.PW5/A1 to Ex.PW5/A6 before MCD, however, in para 8 of the W.S in the first suit admited the execution of the affidavits before MCD regarding the purchase by the plaintiffs. The relevant portion of the plaint of the plaintiffs and the W/S filed by defendant 1 and 2 has already been reproduced above.
Even otherwise, the said documents have been held to be proved in the foregoing part of this judgement. Further, an unsuccessful attempt was made to wriggle out of the said statements by stating that it was so stated merely for the purposes of assessment of house tax. Also in the order of assessment of MCD Ex.PW4/14, it was stated that in the statement dt 21.02.1996, defendnat no.2 had stated that Basement, Ground Floor, and Mezanine floor was sold to two persons. The said documents has been proved. There is no denial by defendant no.1 that no such statement was made.
viii) In para 8 of the plaint of the second suit, it has been averred that due to the death of Sh. Pankaj Kanodia, defendant no.3 and 4 abondoned the idea to continue to CS NO. 8147 of 2016 & CS NO. 10365 of 2016 83 live in the suit property whereas in police complaint dt 24.12.2005 Mark A, it has been stated that defendant no.3 and 4 never occupied the suit property. Also it has been stated that the plaintiffs have tried to encroach upon the suit property but in the pleadings of both suits it has been averred that the plaintiffs were licencees in the suit property.
ix). In W.S in the first suit, the defendant no. 1 admits that the MCD was informed about the possession of the suit property by plaintiffs, however, in the police complaint dt 24.12.2005 Mark A states that the plaintiffs have got their name mutated on the basis of forged documents.
x). It has been averred by defendant no. 1 that the plaintiffs were attempting to convert the suit property into 4 dwelling units, however, in the L.C report dt 28.04.2007 there is nothing to show that any such massive construction was being carried out at the suit property.
xi). Lastly, the defendant no. 1 has offered to return of Rs. 20.20 lacs to the plaintiffs only after the first suit was filed by plaintiffs. Also no such offer was made at any point prior in time. Further the defendant no.1 has very cleverly not mentioned anywhere in her pleadings that as per the building construction agreements Ex.PW1/8 to Ex.PW1/10 clause 7, she was to return the amount alongwith interest @ 18% p.a, cost of labour @ 25% and cost of construction @ Rs.300/- per sq ft. Further the amount which was to be returned to the CS NO. 8147 of 2016 & CS NO. 10365 of 2016 84 defendant no. 3 and 4 as per their own version has been offered to the plaintiffs.
Thus, the conduct of the defendant no.1 does not entitle them to any relief claimed in the suit. In this regard, support is drawn from the judgment in case titled as Suresh Gupta vs. Hari Kishan Madan and Ors -RFA no. 631/2016 passed by Hon'ble High Court of Delhi decided on 13.12.2017 wherein it has been held as under:
"44. It is settled principle of law that it is the bounden duty of the Court to uphold the truth and do justice. Every litigant is expected to state truth before the court whether it is in the pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in courts of law. The ultimate object of judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the Court should be truthful. Once the court discovers any falsehood, concealment, distortion, obstruction or confusion in the pleadings or documents, the court should in addition to full restitution impose appropriate costs. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. This so held by the Hon'ble Supreme Court in A. Shanmugam vs. Ariya K.R.K.M.N.P. Sangam Tr. Pres. Etc, SCC (2012) (6) SCC 430."
In view of the above discussion, the issue no.1 is decided in negative.
ISSUE NO. 22. Whether the plaintiff is entitled to a decree declaring the documents relied upon by defendant no.1 to 4 as CS NO. 8147 of 2016 & CS NO. 10365 of 2016 85 void and for their cancellation, as prayed in prayer clause (b) of the plaint? (OPP)
93. The defendant No. 1 has prayed for the cancellation of documents executed in favour of plaintiffs (defendant no.1 to 4 in the second suit) i.e. Ex.PW1/18 to Ex.PW1/35 seeking a declaration that the said documents are void. In this regard, it is important to note the provisions of section 31 of SRA, 1963 which reads as follows:
"31. When cancellation may be ordered.
(1)Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2)If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
From a reading of the above, it is clear that a document can only be cancelled if the same is void or voidable against a person who claims its cancellation.
94. As per the section 2(g) of Indian Contract Act, 1872, "an agreement not enforceable by law is said to be void". Further, section 20 and section 23 to 30 of the said Act, provide as to which agreements are void. However, nothing has been brought on record to show that the case of defendant no.1 falls under any of the said provisions. Neither it has been CS NO. 8147 of 2016 & CS NO. 10365 of 2016 86 pleaded anywhere in the pleadings of the defendant no. 1 that the documents Ex.PW1/18 to Ex.PW1/35 are void nor even an iota of evidence has been led to show as to how the said documents are void and thus defendant no. 1 has failed to discharge her burden of proof.
95. The only contention of defendant no.1 is that Ex.PW1/5 to Ex.PW1/16 did not create any title in favour of the defendant no. 3 and 4 and they could not have transferred a better title to plaintiffs. The said contention of defendant no.1 has already been dealt above and has been rejected.
96. Since the defendant no. 1 has failed to aver and prove any circumstances entitling her to a declaration that the said documents are void, no declaration as prayed can be granted.
97. Further, the defendant no.1 has only challenged the documents executed by defendant no. 3 and 4 in favour of plaintiffs but has not sought the cancellation of the documents Ex.PW1/5 to Ex.PW1/16 executed by her in favour of defendant no.3 and 4 despite alleging that the said documents executed in favour of defendant no.3 and 4 were sham and were never acted upon. The said fact speaks volumes about the conduct and bad intent of the defendant no. 1 and disentitles her to the relief claimed.
98. It is also important to note that the defendant no.1 has acquiesced for almost 13 years since the execution of the documents in favour of the plaintiffs despite being aware of CS NO. 8147 of 2016 & CS NO. 10365 of 2016 87 the existence of the same as discussed in issue no.1 above and cannot now be allowed to seek a cancellation thereof.
99. It is also important to note that the defendant no. 1 seeks the cancellation of the documents executed in favour of plaintiffs, however, it is a settled law that a stranger to a document can only claim a declaration qua the documents executed between third parties and cannot seek a cancellation thereof. In this regard, I find support from the judgment titled as Suhrid Singh @ Sardool Singh vs. Randhir Singh and Ors passed by Hon'ble Supreme Court on 29.03.2010.
In view of the above findings and discussions, the issue is decided in negative.
Issue no. 3
3. Whether the plaintiff is entitled to a decree of possession upon repayment of Rs.20,20,000/-, as prayed in prayer clause (c) of the plaint? (OPP)
100. It has been averred and argued that defendant no. 1 was entitled to receive back the possession of the suit property upon repayment of Rs. 20.20 lacs which was invested by defendant no.3 and 4. However, it has already been held in the issues above that the defendant no.1 had transferred the rights acquired by her in the suit property from Smt. Motia Rani Sethi to defendant no.3 and 4 for valuable consideration. The documents Ex.PW1/5 to Ex.PW1/16 are still in existence and operative. The relief of cancellation of documents Ex.PW1/18 to Ex.PW1/35 has also been declined. Therefore, there arises CS NO. 8147 of 2016 & CS NO. 10365 of 2016 88 no question of giving back possession on the payment of Rs. 20.20 lacs.
101. Even if the story of defendant no. 1 is to be believed to be true that she was entitled to the possession of the suit property on repayment of the construction amount, still the defendant no. 1 would not be entitled to the same since neither the offer to repay is in terms of the agreed clause nor the payment was made within the reasonable time. A perusal of clause 7 of Ex.PW1/8 to Ex.PW1/10 would show that the defendant no. 1 was to return the said amount after receiving a notice from defendant no. 3 and 4 within 30 days from the date of completion of the construction of the property. Thus it is clear from the said clause 7 of the agreement that the intention of the parties was that the amount was to be returned within a reasonable time and even otherwise it is a settled law that if no time is fixed in a contract, the contract has to be performed within a reasonable time. No evidence whatsoever has been led by the defendant no. 1 to show that she ever offered to return the said amount to the defendant no.3 and 4 or to the plaintiffs and even it has been stated in the W.S of the first suit by defendant no.1 and 2 that they have now arranged the funds and are ready to return the amount invested by defendant no.3 and 4 to the plaintiffs. Thus it is clear that no offer whatsoever was made for refund of the amount prior to the filing of the suit and the said offer is only an after thought CS NO. 8147 of 2016 & CS NO. 10365 of 2016 89 in an attempt to take back the property, which she has already sold.
102. Also as per the said clause, the amount was to be returned alongwith interest @ 18% p.a and the cost of construction @ 300 per sq ft and labour charges @ 25% on the total cost of construction failing which the defendant no.3 and 4 would have the right to transfer the property by way of sale, lease etc. The said clause 7 is reproduced hereunder:
"That the parties herein have agreed that the ground floor in the said plot of land will be completed within one year, delay accepted is subject to unforeseen circumstances and within 30 days from the date of completion of the ground floor, the second party will send a notice to the first party stating therein that the ground floor is completed and return the security amount of Rs....
alongwith interest @18% per annum, cost of the construction @ 300/- per sq ft on the total covered area and also the labour charges @ 25% on the total cost of construction, failing which the second party shall be fully competent to transfer by way of sale, gift, mortgage, lease or otherwise, the said basement in the said property in his name or in the name of his nominee/s."
103. Also in this regard, it would not be out of place to mention that the plaintiff has also filed original notices dt nil issued by defendant no. 3 and 4 and reply dt nil to the said notices, issued by defendant no. 1 thereby expressing her inability to repay the invested amount of Rs.20.20 lacs and giving her NOC to get basement and mezanine floor mutated CS NO. 8147 of 2016 & CS NO. 10365 of 2016 90 in favour of the nominee of defendant no.3 and 4 (pages 74 to 79 as mentioned in the list of documents filed in second suit) Though the said documents were denied by the defendant no.1 in admission/denial yet the said documents are original and signatures of defendant no.1 on the same match with the signatures of defendant no. 1 on the Ex.PW1/5. This clearly shows that defendant no.1 had even given up her right to claim back possession.
104. It is also pertinent to note that as per the averments of defendant no.1 herself, the amount in question if at all had to be refunded, the same was to be refunded to defendant no.3 and 4 and not to the plaintiffs herein.
105. In view of the above discussion and reasons and findings in issue no.1 and 2 above, the defendants are held not entitled to possession of the suit property, the issue is decided in negative.
ISSUE NO. 4 :
4. Whether the plaintiff is entitled to a decree of injunction restraining the defendant no.1 to 4 from making any unauthorized construction or change in the suit property and from creating any third party right in the suit property ? (OPP)
106. In view of my findings and decision on issue no.1 , 2 and 3, no relief of injunction can be granted to defendant no.1 as prayed and accordingly this issue is also decided in negative.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 91 ISSUE NO. 5
5. Whether the plaintiff is entitled to a decree for damages and mesne profits ? (OPP)
107. In view of my findings and decision on issue no.1 , 2, and 3, no relief of damages and mesne profits can be granted to defendant no.1 as prayed and accordingly this issue is also decided in negative.
ISSUE NO. 66. Whether the suit is barred by limitation? OPD1, 2 & 3.
108. It has already been held above that defendant no.1 was aware of the purchase of the suit property by the plaintiffs in the year 1994 and were also aware of the execution of the documents Ex.PW1/18 to 1/35 and still they acquiesced for almost 13 years and therefore, the present suit is clearly barred by limitation as per Article 64/65 of the Limitation Act and the suit is liable to be dismissed on this ground alone.
The issue is accordingly decided.
Relief:
109. In view of the finding above, the suit bearing no. CS DJ 10365/16 Meena Chadha vs. Krishan Kumar Agrawal and Ors is dismissed on merits as well as on the grounds of limitation with a costs of Rs. 2,00,000/-. Decree sheet be drawn accordingly.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 92
110. Reasons and findings on issues framed in First suit Issue no.1
1). Whether the suit is barred u/s. 41 of Specific Relief Act ? OPD
111. The grievance of the plaintiff for which he has knocked the door of this court is that the defendant no.1 & 2 are interfering in his possession of the suit property without any right whatsoever. The present suit is for declaration, possession and injunction. The relief of injunction is thus a consequential relief, therefore, the bar of section 41(h) SRA is not applicable. The issue is according decided against the defendant and in favour of the plaintiffs.
Issue no. 2 :
2. Whether there is no privity of contract between the plaintiffs and defendants ? (OPD)
112. The contention of Ld. Counsel for defendant no.1 & 2 that the suit is not maintainable against them as there is no privity of contract with the plaintiffs, is without any merit and is baseless as even if there is no privity of contract between the parties, the suit for declaration and injunction is maintainable, if any person against whom the suit is filed has by his acts or conduct created a cloud on the title of the party suing or has interfered with the rights of the such party. It is also important to mention here that by way of the present suit for declaration, possession and injunction the plaintiffs only CS NO. 8147 of 2016 & CS NO. 10365 of 2016 93 seek to protect and enforce their rights in the suit property on the basis of the documents Ex.PW1/5 to PW1/16 executed by the defendant no.1 & 2 in favour of defendant no.3 & 4 and Ex.PW1/18 to PW1/35 executed by defendant no.3 & 4 in favour of the plaintiffs.
In view of the above discussion and reasons, the issue no.2 is decided against the defendants and in favour of the plaintiffs.
ISSUE NO. 3,4 AND 5iii). Whether the suit bearing no. 92/2008 Smt. Meena Chadha vs. Sh. Krishan Kumar Agarwal & Ors, is liable to be stayed under section 10 CPC ? OPD
iv). Whether the suit of the plaintiffs is liable to be rejected under Order VII Rule 11(a) & (c) CPC ? OPD
v). Whether the plaintiff no. 1 is entitled to declaration against the defendants no. 1 and 2 as prayed for ? OPP
113. These issues have been deleted vide order dt 19.11.2024.
ISSUE NO. 6:
6. Whether the plaintiffs are entitled to declaration as prayed for, if so, to what effect ? OPP
114. This issue pertains to the relief contained in the prayer clause (i) & (ii) of the plaint. In the said reliefs, the plaintiffs have sought a declaration that the defendant no.1 and 2 have CS NO. 8147 of 2016 & CS NO. 10365 of 2016 94 no right and authority to challenge the status, title and possession of plaintiffs of the suit property. During the course of arguments the Ld. Counsel for plaintiff was asked as to if he seeks the declaration as to tile of ownership in the said prayers, to which the counsel submitted that he cannot seek a declaration of ownership in view of the judgment in Suraj Lamps case (supra) and also as the property is not yet freehold. It was submitted that the plaintiffs only seek to protect their possession and seek a declaration of possessory title only. On reading of the prayer clause of the suit in light of the above submissions, it appears that the plaintiffs indirectly seek declaration that the plaintiffs have the possessory title with respect to the suit property by seeking a declaration that defendant no.1 & 2 have no right to challenge their status, title and possession. Therefore, while deciding this issue, this court shall only delve into the issue of existence/non-existence of the possessory title of the plaintiffs and shall not decide the existence or non-existence of the ownership title.
115. The plaintiffs in support of their possessory title have relied upon Ex.PW1/8 to Ex.PW1/35 and PW4/14, Ex.PW4/18 and the entire record of MCD produced by PW4 and Ex.PW5/A1 to Ex.PW5/A6 and have also pleaded adverse possession in the alternative which has already been discussed in detail above in the foregoing part of this judgment.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 95
116. It has already been held above that the plaintiffs herein have been in possession of the basement and ground floor and mezanine floor of the suit property (excluding the annexe) since the year 1994, to the knowledge of defendant no.1 and
2.
117. Thus in view of the above and in view of the findings in the issues framed in the second suit, it is declared that the plaintiffs have the possessory rights in respect of the suit property except the annexe no. 1 and defendant no.1 and 2 have no right to interfere in their status of possession. The present issue is decided in favour of plaintiffs and against defendants.
ISSUE NO.7 :
vii). Whether the plaintiff no. 1 is entitled to possession against the defendant nos. 1 and 2 in respect of annexe no.
1 alongwith the kitchen and bath rooms forming part of the property bearing no. C-778, New Friends Colony, New Delhi ? OPP
118. It has already been discussed in Issue no.1 of the second suit that the rights in the suit property have been sold by defendant no.1 to defendant no. 3 and 4 and also by defendant no. 2 acting as Power of Attorney of Smt. Motia Rani Sethi (Smt. Motia Rani Sethi was alive at the time of the execution of the above mentioned documents and had not revoked the General Power of Attorney executed in favour of Sh. C.M. Chadha and even otherwise the same was CS NO. 8147 of 2016 & CS NO. 10365 of 2016 96 irrevocable). It has also been discussed in detail that the defendant no.3 and 4 have further transferred their rights in the suit property in favour of plaintiffs who have acquired valuable rights in the suit property.
119. This court is conscious that in the entire chain of documents mentioned above the parties have in effect purported to sell the suit property however the fact remains that one cannot transfer title better than that which he himself possesses and therefore, it can be said that the parties infact sold the lease hold rights in the suit property. However, it cannot be lost sight of that the requirement of registration of document was not complied with. Yet in the considered opinion of this Court the plaintiffs are entitled to the possession of the Annexe no. 1 alongwith bath and kitchen. In this regard this the court has taken support from para 26 of the judgment in Suraj Lamps case (supra) wherein it was held by Hon'Supreme Court that as under:
" We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development CS NO. 8147 of 2016 & CS NO. 10365 of 2016 97 Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
120. The judgment offers protection to the purchasers whose names have been mutated by the municipal authorities before the date of passing of the judgment i.e. 11.10.2011. In the present case, mutation has been effected in the records of MCD in 1994 itself and, therefore, the plaintiffs are covered under the exception created by the above judgment and their rights fructified in the suit property in 1994 itself.
121. Further, it has already been held in issue no. (1) of the second suit that the defendant no. 1 has transferred her rights in the suit property for valuable consideration and cannot be declared to be the owner of the sit property. However, plaintiffs have been granted protection by the judgment in Suraj Lamps case (supra) and, therefore, have better title in the suit property vis-a-vis the defendant no. 1.
122. Also the conduct of the defendant no.1 as noted in issue no.1 of the second suit dis-entitles the defendant no. 1 to any protection from this court and even the equity demands that such a person should not be allowed to avail any undue benefit and to back out from the transactions which he has done for a valuable consideration. In this regard, discussion in issue no. 1 may be referred to and is not repeated herein for the sake of brevity.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 98
123. Thus, the defendant no.1 & 2 have no right to continue in the possession of the annexe no.1 of the property bearing no.C-778, New Friends Colony, Delhi and are bound to hand over the possession of the same to the plaintiffs.
124. In view of the above the plaintiffs are held entitled to the possession of the annexe no.1 alongwith kitchen and bath of the property no. C-778, New Friends Colony, New Delhi alongwith right to use and enjoy the common area and the proportionate undivided share of the land underneath and defendant no.1 & 2 have no right to interfere in the same. The issue is according decided against the defendants and in favour of the plaintiffs.
ISSUE NO.8 :
viii). Whether the plaintiffs are entitled to decree of damages, mesne profits to the tune of Rs. 3,00,000/-
against the defendants no. 1 and 2 on account of being in illegal and unauthorised possession of annexe no. 1 alongwith the kitchen and bath rooms of property bearing no. C-778, New Friends Colony, New Delhi, if so, to what effect ? OPP
125. In view of the decision in issue no. 7 above the plaintiffs are held entitled to recover damages and mesne profits from defendant no.1 & 2.
126. The plaintiffs have claimed damages and mesne profits of Rs. 3 lacs @ Rs. 2000/- p.m. for the unauthorized CS NO. 8147 of 2016 & CS NO. 10365 of 2016 99 possession of annexe no.1 alongwith kitchen and bathroom (hereinafter referred to as "Annexe"), by defendant no.1 & 2.
127. However, no evidence was led by the parties in this regard. In the considered opinion of this court, the amount of Rs. 3 lacs is a reasonable amount considering the location of the property i.e New Friends Colony the prevailing rates of rent in the said area and the number of years for which the plaintiff has been deprived of the possession of the Annexe i.e. almost 12 years. The plaintiffs are also held entitled to damages and mesne profits at the claimed rate @ Rs. 2,000/- p.m. w.e.f. the date of filing of the suit till the date of payment. In view of the above discussion and reasons, this issue is decided against the defendants and in favour of the plaintiffs.
ISSUE NO.9 :
ix). Whether the plaintiffs are entitled to permanent injunctions as prayed for ? OPP
128. In view of the decision in issue no.6 & 7, the present issue is decided against the defendant no.1 & 2 and in favour of the plaintiffs. The defendants no.1 and 2 are permanently restrained from forcibly entering or causing obstruction and interference in the suit property.
129. RELIEF : In view of the above findings, the suit bearing no. 8147/2016 titled as K.K. Aggarwal & Ors vs. Smt. Meena Chadha & Ors stands decreed. Costs of the suit is also awarded in favour of the plaintiffs.
CS NO. 8147 of 2016 & CS NO. 10365 of 2016 100
130. Decree sheet be drawn accordingly.
131. Both the Files be consigned to Record Room.
Announced in open court
on 27th Day of November, 2024
GUNJAN Digitally signed by
GUNJAN GUPTA
GUPTA Date: 2024.11.30
18:39:56 +0530
(GUNJAN GUPTA)
DJ-04/South-East,Saket Courts,
New Delhi
CS NO. 8147 of 2016
&
CS NO. 10365 of 2016