Delhi District Court
Ms Chintels Exports Pvt. Ltd vs Dharambir Singh Ors on 13 August, 2024
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
South West District at Dwarka Courts, New Delhi
Suit No. 26608/16
CNR No. DLSW03-000377-2014
In the matter of :-
M/s Chintels Exports Pvt. Ltd.
Having its registered office at:
A-11, Kailash Colony,
New Delhi
Through Mr. Ashok Solomon,
Its Managing Director and Principal Officer
........Plaintiff
VERSUS
(i) Sh. Dharambir Singh
(ii) Sh Ved Prakash
(iii) Sh Rishipal
(iv) Sh Hansraj
All s/o Late Sh Ranjit Singh
r/o Village Nanakheri, Delhi.
.....Defendants
Date of institution : 20.03.2014
Reserved for Judgment : 13.08.2024
Date of decision : 13.08.2024
Suit for Specific Performance of Agreement to sell dated 25.11.1994
JUDGMENT
1. This is a suit for specific performance filed by the plaintiff against CS No. 26608/2016 Page no. 1 of 18 the defendant thereby directing him to perform his part of agreement to sell dated 25.11.1994 by executing and causing registered sale deed pertaining to suit land, for conferring the title of the suit land upon the plaintiff company and handing over physical possession/vacant possession of the suit land to the plaintiff.
Plaintiff's Case
2. Plaintiff filed the present suit against four defendants namely Dharambir Singh, Ved Prakash, Rishipal and Hansraj. An application u/o I Rule 10 CPC was filed on behalf of defendants for arraying Dharampal as defendant instead of Rishipal in the present matter. Accordingly, vide order dated 10.07.2017 defendant no. 3 Rishipal was deleted from array of parties and in his place Sh Dharampal was added as defendant in the present suit. However, amended memo of parties has not been filed by plaintiff, despite directions of Court.
The present suit is filed by Sh Ashok Solomon who has been authorized by the Board of Directors of plaintiff company. Sh Ashok Solomon is the Managing Director of plaintiff company and is entitled to sign, verify, file and institute the present suit on behalf of the plaintiff company. The case of the plaintiff as averred in the plaint is that a transaction of sale was entered into on 25.11.1994 whereby Late Sh Ranjeet Singh i.e. father of defendant had sold and transferred his 1/6th share out of khasra no. 314/1(1-16) and 315(4-15) situated in village Nanakheri, Delhi(hereinafter said land referred to as pre-consolidation land). It is further stated that in part performance of his obligation under the agreement to sell dated 25.11.1994, defendants put the plaintiff company in possession of land equivalent to his share. It is stated that defendant had executed the following documents in favour of plaintiff company:
CS No. 26608/2016 Page no. 2 of 18
a. Agreement to sell dated 25.11.1994.
b. Receipt dated 25.11.1994.
c. Affidavit dated 25.11.1994.
d. Possession letter dated 25.11.1994
e. Registered General Power of Attorney dated 25.11.1994 appointing
Sh Ashok Solmon as General Attorney.
f. Registered Will dated 25.11.1994 in favour of Ms. Roseline
Poonam, an official of plaintiff company.
It is stated that vide judgment dated 11.10.2011 passed by Hon'ble Supreme Court in matter of Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and Another, 2012(1) SCC 656, the Hon'ble Supreme Court has overruled the prevailing legal position whereby the execution of aforesaid documents was being treated as complete transfer of title in favour of beneficiary of documents. It is stated that in terms of aforesaid agreement to sell, the plaintiff company was required to pay a sum of Rs. 71,630/- to the defendant. It is stated that full sale consideration was paid by the plaintiff company to defendant and the said fact was mentioned in the agreement to sell and a separate receipt acknowledging the payment of full sale consideration has also been executed by the defendant. It is stated that during the course of consolidation proceedings, in lieu of his 1/6th share in the pre-consolidation land, Sh Ramphal was allotted the land bearing Khasra nos. 32/52(2-2), 12/5/1(3-12), 13/1/1(2-18), total measuring (8-12) (hereinafter referred to as suit land). It is stated that vide order 19.08.2003 passed by the then Consolidation Officer, the applicant was declared as encumberer qua the share of Sh Ramphal and was given land bearing post consolidation khasra no. 13/1/1 min East (1-2). It is stated that vide order CS No. 26608/2016 Page no. 3 of 18 dated 14.09.2010 the revision petition bearing case no. 214/09-CA titled as 'Ramphal Vs Consolidation Officer & Anr.' was dismissed. It is stated that orders passed by Consolidation Officer and Ld Financial Commissioner were challenged before the Hon'ble High Court by way of writ petition i.e. W.P. (C) No. 8234/2010 titled as 'Ramphal Vs Consolidation Officer & Another'. It is stated that vide order dated 16.12.2010 the aforesaid writ petition was disposed of and the right of the applicant to oppose the relief/remedy to be claimed by the petitioner on the ground of jurisdiction and limitation has also been kept intact. It is stated that the Hon'ble High Court vide order dated 09.12.2010 and 16.12.2010 had not disturbed the order dated 19.08.2003 passed by Ld Consolidation Officer and order dated 14.09.2010 passed by Ld Financial Commissioner. It is stated that the order dated 19.08.2003 passed by Ld Consolidation Officer stands upheld and crystallized. It is stated that defendant has also filed a civil suit bearing case no. 313/2011 titled as 'Ramphal Vs Chintels Exports Pvt Ltd' and vide order dated 20.03.2012 the court had held that the defendant (i.e. plaintiff herein) has right to obtain specific performance of the agreement to sell. It is stated that defendant has never disputed the execution of aforesaid agreement to sell dated 25.11.1994. It is stated that during the intervening period of time, the prices of land situated in the vicinity have increased due to which the defendant has turned dishonest and has set up a plea that the aforesaid agreement to sell dated 25.11.1994 has lost its enforceability due to expiry of long period of time. It is stated that defendant has not disputed the execution of agreement to sell dated 25.11.1994 & other ancillary documents as well as receipt of entire sale consideration under the terms of said Agreement to Sell and neither defendant has pleaded any kind of default or breach of any term of said agreement to sell on the part of CS No. 26608/2016 Page no. 4 of 18 plaintiff company. Hence the present suit.
3. Defendants' Case Written statement has been filed on behalf of defendants stating that the present suit is filed with the motive to grab the suit land belonging to the defendants who are recorded co-bhumidars of the land comprising in khasras no. 32/51(0-19), 9/12/2(1-15), 19/1(3-5), 13/3(0-2) and 18 min (0-
4), total admeasuring 7 bighas 4 biswas situated in the Revenue Estate of Village Nanak Hari, Delhi. It is stated that Sh Ranjit Singh, father of defendants was earlier the recorded co-bhumidar to the extent of 1/6th share in the pre-consolidated khasra no. 314/1(1-16) and 315(4/15) in the said land. It is stated that the agreement to sell was allegedly executed on 25.11.1994 and the present suit seeking specific performance of agreement to sell dated 25.11.1994 has become inoperative & time barred and the limitation period for filing a suit for specific performance of a contract has already expired. It is stated that the immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and transactions of nature of 'GPA sales' or 'SA/GPA/Will transfers' do not convey title and do not tantamount to transfer or can be recognized as valid mode of transfer of immovable property. It is stated that plaintiff company is not in possession of any portion of the suit land.
4. Replication has been filed by the plaintiff to the written statement of the defendants wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
5. Issues CS No. 26608/2016 Page no. 5 of 18 After completion of pleadings, vide order dated 17.07.2018 the following issues were framed by my learned Predecessor for trial :
(i) Whether the plaintiff is entitled for a decree in his favour and against the defendants thereby directing the defendants to perform their part of Agreement to Sell dated 25.11.1994 by executing and causing registered the sale deed pertaining to the suit property, as prayed for? (OPP).
(ii) Whether the present suit is barred by limitation? (OPDs).
(iii) Relief
6. Plaintiff's Evidence Plaintiff has brought three witnesses in its evidence.
(i) Sh J.N Yadav examined himself as PW-1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon the following documents :
a. Ex. PW1/1 i.e. the certificate of incorporation. b. Mark PW1/2 is the photocopy of extract of minutes of meeting.
(mentioned as Ex. PW1/2 in affidavit and later de-exhibited) d. Ex. PW1/3 is the agreement to sell dated 25.11.1994. e. Ex. PW1/4 is the registered GPA dated 29.11.1994.
f. Ex. PW1/5 is the receipt.
g. Ex. PW1/6 is the possession letter.
h. Mark PW1/7 is affidavit (earlier mentioned as Ex. PW1/7 in
affidavit and later de-exhibited)
i. Mark PW1/8 is the photocopy of the registered Will. (earlier
mentioned as Ex. PW1/8 in affidavit and later de-exhibited) j. Ex. PW1/9 (colly) is certified copy of entire paper book regarding CS No. 26608/2016 Page no. 6 of 18 revision petition no. 215/09-CA.
k. Mark PW1/10(colly) are photocopies of order dated 09.12.2010 & 16.12.2010 (earlier mentioned as Ex. PW1/10 in affidavit and later de-exhibited)
(ii) Sh Sanjeev Kumar, Kanungo, SDM Office was examined as PW-
2. He was a summoned witness and he had brought Ex. PW-2/A i.e. the certified copy of order dated 16.10.2021 bearing no. TEH/DH (CONSOLIDATION)/SW/096669939/2021/60124 dated 16.10.2021 passed by the Consolidation Officer of Village Nanakheri, South West, Delhi and Ex.PW-2/B i.e. the certified copy of registered Karwai Chakbandhi of Village Nanakheri wherein the Consolidation process in respect of Village Nanakheri was initiated.
(iii) Sh Manish Kumar from SBI Bank was examined as PW-3. He was a summoned witness. He stated that the summoned record is not available with the bank being more than 10 years old.
7. Plaintiff's evidence was closed on 27.02.2024 and the matter was adjourned for defendant's evidence.
8. Defendant's Evidence Defendant has brought six witnesses in his evidence.
(i) Defendant no. 1 Dharambir Singh examined himself as DW1, who in his affidavit in evidence Ex. DW1/A has stated and reiterated on oath the contents of the affidavit. He has relied upon the following documents :
a. Mark DW-1/1(colly) is copy of khasra Girdawari pertaining to the CS No. 26608/2016 Page no. 7 of 18 suit land. (earlier mentioned as Ex. DW-1/1 in affidavit and later de-exhibited) b. Mark A is application u/s 26 of East Punjab Holding (Consolidation and Prevention of Fragmentation) Act.
c. Mark DW-1/2 is reply by defendants herein to the application u/s 26 of East Punjab Holding (Consolidation and Prevention of Fragmentation) Act. (earlier mentioned as Ex. DW-1/2 in affidavit and later de-exhibited) d. Mark B is copy of rejoinder filed by plaintiff company.
e. Mark C to Mark F is copy of agreement to sell, receipt, affidavit, possession letter all dated 25.11.1994, f. Mark G is copy of GPA dated 29.11.1994.
g. Mark H is copy of order dated 19.08.2003 passed by Consolidation Officer.
h. Mark DW-1/3 is cancellation of GPA dated 07.08.1997 passed by Consolidation Officer. (earlier mentioned as Ex. DW-1/3 in affidavit and later de-exhibited) i. Mark DW-1/4 is copy of legal notice dated 06.11.1997.(earlier mentioned as Ex. DW-1/4 in affidavit and later de-exhibited) j. Mark DW-1/5 is acknowledge receipt pertaining to the said legal notice. (earlier mentioned as Ex. DW-1/5 in affidavit and later de- exhibited) k. Mark I is copy of order dated 14.09.2010 passed by the Financial Commissioner.
l. Mark DW-1/6 is copy of order dated 16.12.2010 passed by Hon'ble High Court of Delhi in WP(C ) no. 8237/2010 (earlier mentioned as Ex. DW-1/6 in affidavit and later de-exhibited) CS No. 26608/2016 Page no. 8 of 18 m. Mark DW-1/7 is copy of plaint of suit bearing CS No. 314/2011.
(earlier mentioned as Ex. DW-1/7 in affidavit and later de-exhibited) n. Mark J is copy of written statement filed by plaintiff herein in the suit bearing CS No. 314/2011.
o. Mark DW-1/9(colly) are photographs depicting the suit land.(earlier mentioned as Ex. DW-1/9 in affidavit and later de-exhibited)
(ii) Sh Deepak Negi examined as DW2. He was a summoned witness and he had brought Ex. DW-2/1(OSR) i.e. judgment dated 05.09.2022 in RCA no. 54618/2016 titled as MS CHINTELS EXPORTS PVT. LTD. Vs. DHARAMBIR SINGH & ORS'.
(iii) Ms. Neelam Pal was examined as DW3. She had brought the summoned recorded which are as under:
(a) Ex. DW-3/1(OSR) is judgment dated 31.10.2015 passed in Civil Suit no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd.
(b) Ex. DW-3/2 (OSR) is examination in chief and cross examination of Sh Sube Singh, s/o Late Sh Daryao Singh deposed as PW-3 in Civil Suit no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd.
(c) Ex. DW-3/3 (OSR) is examination in chief and cross examination of Sh Prem Chandra, s/o Sh Brij Lal deposed as PW-4 in Civil Suit no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd.
(d) Ex. DW-3/4 (OSR) is examination in chief and cross examination of Sh Manoj Kumar, s/o Sh Hari Kishan deposed as PW-5 in Civil Suit CS No. 26608/2016 Page no. 9 of 18 no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd.
(e) Ex. DW-3/5 (OSR) is examination in chief and cross examination of Sh J.N. Yadav, s/o Sh H.S. Yadav deposed as DW-3 in Civil Suit no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd.
(f) Ex. DW-3/6(OSR) is legal notice dated 06.11.1997 (mentioned as Mark DW-1/4 in the testimony of DW-1).
(g) Ex. DW-3/7(OSR) is acknowledgment receipt pertaining to legal notice dated 06.11.1997 (mentioned as Mark DW-1/5 in the testimony of DW-1) .
(h) Ex. DW-3/8(OSR) is photographs (mentioned as Mark DW-1/9 in the testimony of DW-1) (objected as to mode of proof)
(i) Ex. DW-3/9(OSR) is plaint of Civil Suit no. 314/2011 titled as 'Dharambir & Ors Vs M/s Chintels Exports Pvt Ltd' (mentioned as Mark DW-1/7 in the testimony of DW-1).
(iv) Sh Sandeep, Senior Assistant, Sub Registrar, Basaidarapur was examined as DW4. He was a summoned witness and he had brought Ex.
DW-4/1(OSR) i.e. original record alongwith certified copy of cancellation of General Power of Attorney dated 07.08.1997.
(v). Sh Ashish Soni, Patwari was examined as DW5. He was a summoned witness and he had brought Ex. DW-5/1(colly) i.e. certified copy of post consolidation khatuni of the year 2022-2023 in respect of Khasra no. 9//19/2(0-16), 9//19/1(3-12) and 32//51(0-19) of Village Nanak Heri, District South West, New Delhi. He stated that he did not have khatuni of pre-consolidation khasra number 314/1(1-16) and 315(4-15) of CS No. 26608/2016 Page no. 10 of 18 the Revenue Estate of Village Nanak Heri, Delhi.
(vi). Sh Sanjeev Kumar, Kanungo/Record Keeper was examined as DW6. He was a summoned witness and he had brought Ex. DW-6/1. i.e. reply filed by the defendants before the Consolidation Officer in the case titled M/s Chintels Exports Pvt Ltd. Vs Dharambir Singh & Ors
9. Defendant closed his evidence on 10.04.2024 and thereafter, the matter was listed for final arguments.
10. Final arguments have been heard. I have gone through the judicial record.
11. Now I shall give my issue-wise findings on the following issues:
(i) Whether the plaintiff is entitled for a decree in his favour and against the defendants thereby directing the defendants to perform their part of Agreement to Sell dated 25.11.1994 by executing and causing registered the sale deed pertaining to the suit property, as prayed for? (OPP).
(ii) Whether the present suit is barred by limitation? (OPDs).
Issue no. (ii) shall be decided first and thereafter issue no. (i) shall be decided.
a. Issue no. (ii)
(ii) Whether the present suit is barred by limitation? (OPDs).
The onus to prove the issue no. (ii) was upon defendants. In order to discharge their onus the defendant got examined six witnesses in total. The CS No. 26608/2016 Page no. 11 of 18 defendant Dharambir Singh got examined himself as DW-1 and other record officials of different offices as DW-2 to DW-6. The plaintiff also got examined Sh. J.N. Yadav as PW-1 to prove Agreement to Sell dated 25.11.1994 as Ex. PW-1/3, registered GPA dated 29.11.1994 as Ex. PW- 1/4, Receipt of consideration as Ex. PW-1/5 and Possession Letter of suit property as Ex. PW-1/6. Ex PW-1/6 specifically mentions that the physical possession of suit property has been handed over to the plaintiff. Agreement to Sell Ex. PW-1/3 very clearly specifies that the consideration was paid to father of defendant vide cheque no. 822775 dated 15.11.1994 as well as Rs. 8,000/- in cash. The receipt Ex. PW-1/5 also speaks about same amount of consideration. All the exhibits i.e. Ex. PW-1/3, Ex. PW- 1/5 and Ex. PW-1/6 bears the thumb impression of Sh Ranjit s/o Sh Dhaniya i.e. father of defendant. The execution of documents by Sh Ranjit finds well supported by the written statement filed by defendant wherein the paragraph 2 of preliminary objections the defendant has stated that the documents i.e. Agreement to sell, receipt, possession letter, all dated 25.11.1994 and General Power of attorney dated 29.11.1994 in favour of plaintiff company qua land to extend of 1/6th share have no legal force and have become time barred as the plaintiff company did not comply with the terms & conditions between the parties within the stipulated time. The defendant has further stated in the same paragraph that the Agreement to Sell did not confer any right, title or interest of any kind in the suit property which was subject to compliance of certain terms defaulted upon by the plaintiff company. Such alleged default itself connotes that there were certain liabilities of plaintiff which the defendant want to get complied within his favour which got originated from those documents and only for non compliance of such liabilities by plaintiff, the document has lost its CS No. 26608/2016 Page no. 12 of 18 credibility. Such submission in the written statement ascertains the factum of execution of document by Sh Ranjeet i.e. father of defendant.
The defendant has also stated in the written statement that in addition to above documents the father of answering defendant i.e. Sh Ranjeet also cancelled the General Power of Attorney dated 29.11.1994 by executing the cancellation deed dated 07.08.1997 and also issued a legal notice dated 06.11.1997 in this regard which was sent to plaintiff company thereby intimating it about the cancellation of documents executed in favour of plaintiff company in the year 1994, so by way of this cancellation deed and legal notice the defendant himself ascertains the execution of documents by his father Ranjit Singh which ultimately made the father of defendant to execute the cancellation deed and issue a legal notice to plaintiff company. These are the admitted facts on the part of defendant which also include the possession letter Ex. PW-1/6 with regard to suit property.
The defendant at the later stage of evidence tried to shirk his admissions about the factum of documents but has blown hot and cold in the single breath by admitting the cancellation deed and legal notice thereby cancelling the aforementioned documents by father of defendant.
Vide order dated 19.08.2003 the Consolidation Officer declared the plaintiff as encumberer to the suit property so there are no reasons to say that plaintiff had not any right, title and interest in the documents or possession of the suit property.
The defendant ascertained the execution of property documents by his father in favour of plaintiff which also includes the possession letter Ex. PW-1/6 but during entire course of pleadings or evidence the defendant not produced any document in his favour to show that he was in possession of suit property after 1994 or 1997 i.e. after cancellation deed and the notice CS No. 26608/2016 Page no. 13 of 18 of cancellation of document issued by father of defendant. The defendant also not brought on record any khasra Girdawari or P-5 Form in his name in order to ascertain his possession after 1994 or 1997. The Consolidation Officer verified the submissions of plaintiff and added the plaintiff as encumberer to suit property so intervention of plaintiff continued with the suit property in revenue records. The addition of plaintiff as encumberer in the suit property even after consolidation proceedings and uphelding the same upto appeal before Finance Commissioner itself denotes that the plaintiff was validly contesting his claim and not gave up.
It is also clear that there is no limitation period prescribed causing the mutation in the revenue records/khata khatauni. When possession of suit property got transferred to plaintiff and is continued with plaintiff till re-allocation of new khasra number after the consolidation then it cannot be said that the plaintiff himself handed over the possession of suit property to the defendant which defendant actually received by virtue of their name in revenue record/khata khatauni and non disclosure of agreement to sell, possession letter and money receipt by the defendants but the Consolidation Officer added the name of plaintiff as encumberer to the property when the factum of execution of document came to the knowledge of Consolidation Officer. Plaintiff was validly contesting its claim and was very much covered within Section 12 and 15 of the Limitation Act 1963. Further, plaintiff relied upon judgments in case of Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and Another, 2012(1) SCC 656, Rama Devi Vs Punam Chand Aggarwal, 2008 Law Suit(Del)3034 and Asha M Jain Vs Canara bank, 2001 LawSuit(Del) 1447 in support of its contentions.
In view of above, the defendant failed to discharge his onus to CS No. 26608/2016 Page no. 14 of 18 prove issue no. (ii). Accordingly, issue no. (ii) is decided against defendant and in favour of plaintiff.
b. Issue no. (i)
(i) Whether the plaintiff is entitled for a decree in his favour and against the defendants thereby directing the defendants to perform their part of Agreement to Sell dated 25.11.1994 by executing and causing registered the sale deed pertaining to the suit property, as prayed for? (OPP).
The onus to prove issue no. (i) was upon plaintiff. Defendant got examined six witnesses in total. The defendant got examined Dharambir Singh as DW-1 and other record officials of different offices as DW-2 to DW-6. The plaintiff also got examined Sh. J.N. Yadav as PW-1 to prove Agreement to Sell dated 25.11.1994 as Ex. PW-1/3, registered GPA dated 29.11.1994 as Ex. PW-1/4, receipt of consideration as Ex. PW-1/5 and Possession Letter of suit property as Ex. PW-1/6. Ex PW-1/6 specificially mentions that the physical possession of suit property has been handed over to the plaintiff. Agreement to Sell Ex. PW-1/3 very clearly specifies that the consideration was paid to father of defendant vide cheque no. 822775 dated 15.11.1994 as well as Rs. 8,000/- in cash. The receipt Ex. PW-1/5 also speaks about same amount of consideration. All the exhibits i.e. Ex. PW-1/3, Ex. PW-1/5 and Ex. PW-1/6 bears the thumb impression of Sh Ranjit s/o Sh Dhaniya i.e. father of defendant. The execution of documents by Sh Ranjit finds well supported by the written statement filed by defendant wherein in the paragraph 2 of preliminary objections the defendant has stated that the documents i.e. Agreement to sell, receipt, possession letter all dated 25.11.1994 and General Power of attorney dated 29.11.1994 in favour of plaintiff company qua land to extent of 1/6th share CS No. 26608/2016 Page no. 15 of 18 have no legal force and have become time barred as the plaintiff company did not comply with the terms & conditions between the parties within the stipulated time. The defendant has further stated in the same paragraph that the agreement to sell did not confer any right, title or interest of any kind in the suit property which was subject to compliance of certain terms defaulted upon by the plaintiff company. Such alleged default itself connotes that there were certain liabilities of plaintiff which the defendant want to get complied in his favour which got originated from those documents and only for non compliance of such liabilities by plaintiff, the document has lost its credibility. Such submission in the written statement ascertains the factum of execution of document by Sh Ranjeet i.e. father of defendant.
The defendant has also stated in the written statement that in addition to above documents the father of answering defendant i.e. Sh Ranjeet also cancelled the General Power of Attorney dated 29.11.1994 by executing the cancellation deed dated 07.08.1997 and also issued a legal notice dated 06.11.1997 in this regard which was sent to plaintiff company thereby intimating it about the cancellation of documents executed in favour of plaintiff company in the year 1994, so by way of this cancellation deed and legal notice the defendant himself ascertains the execution of documents by his father Ranjit Singh which ultimately made the father of defendant to execute the cancellation deed and issue a legal notice to plaintiff company. These are the admitted facts on the part of defendant which also include the possession letter Ex. PW-1/6 with regard to suit property.
The defendant at the later stage of evidence tried to shirk his admissions about the factum of documents but has blown hot and cold in the single breath by admitting the cancellation deed and legal notice CS No. 26608/2016 Page no. 16 of 18 thereby cancelling the aforementioned documents by father of defendant.
Vide order dated 19.08.2003 the Consolidation Officer declared the plaintiff as encumberer to the suit property so there are no reasons to say that plaintiff had not any right, title and interest in the documents or possession of the suit property.
The defendant ascertained the execution of property documents by his father in favour of plaintiff which also includes the possession letter Ex. PW-1/6 but during entire course of pleadings or evidence the defendant not produced any document in his favour to show that he was in possession of suit property after 1994 or 1997 i.e. after cancellation deed and the notice of cancellation of document issued by father of defendant. The defendant also not brought on record any khasra Girdawari or P-5 form in his name in order to ascertain his possession after 1994 or 1997. The facts admitted by one party need not to be proved by opposite party. In the present matter defendant has admitted the execution of Ex PW-1/3, Ex. PW1/5 and Ex. PW-1/6. Since the possession of the suit property was also delivered to the plaintiff and defendant has also not got any Khasra Girdawari in his favour after 1994, so Ex PW-1/6 i.e. possession letter containing thumb impression of Sh Ranjit remains undisputed and untainted. Execution of documents accompanied with delivery of possession gives the right to plaintiff to make the defendant to perform the duty in favour of plaintiff. Needless to mention Section 202 of Indian Contract Act, 1872 as under :
"202 Termination of agency, where agent has an interest in subject matter- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
CS No. 26608/2016 Page no. 17 of 18 In view of above, the plaintiff has successfully discharged its onus to prove issue no. (i). Accordingly, issue no. (i) is decided in favour of plaintiff and against defendant.
The defendant is hereby directed to perform their part of agreement to sell dated 25.11.1994 i.e. Ex. PW-1/3 and to cause register the sale deed pertaining to land measuring 6 bigha 11 biswas i.e. 1/6th of khasra no. 314/1(1-16) and 315(4-15) situated in village Nanakheri, Tehsil Mehrauli, Delhi [with new khasra no. 9/19/1 min. West(1-2)].
Relief
12. In view of my aforesaid findings, the suit is decreed in favour of plaintiff and against defendants. Cost of the suit is awarded in favour of plaintiff. Decree sheet be prepared.
File be consigned to the record room after due compliance.
Ajay Digitally signed
by Ajay Kumar
Kumar Malik
Date: 2024.08.13
Announced in the Open Court Malik 18:28:39 +0530
on 13.08.2024
(Ajay Kumar Malik)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS No. 26608/2016 Page no. 18 of 18