Delhi District Court
Mohd. Saleem vs Asi Tej Ram on 7 August, 2018
In the court of Sh. Munish Markan, Additional District Judge01,
(South) District Courts, Saket, New Delhi
CS No.6515/16
CNR No.DLST010001722010
Mohd. Saleem
S/o Sh. Haji Basir
R/o H. No.15, Gali no.E10
Near Noorani Masjid,
Molarband Extn.,
Badarpur, New Delhi
..... Plaintiff
Versus
1. ASI Tej Ram
At: P.S. Badarpur,
Badarpur Border, New Delhi
2. Aas Mohammed @ Ashu
S/o Sh. Gabbruddin
R/o A20, Budh Vihar,
Tajpur Pahari, Badarpur,
New Delhi
3. Saleem Khan @ Kalia
S/o Sh. Qutubuddin
R/o A20, Budh Vihar,
Tajpur, Pahari, Badarpur,
New Delhi
4. Sh. Om Prakash
S/o Sh. Soran Singh
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 1 /16
R/o H. No.F581,
(Old no.D2/531)
Jaitpur Extn. PartII,
Kalindi Kunj Road, New Delhi
........... Defendants
Date of institution : 19.03.2010
Date reserved for judgment : 09.07.2018
Date of pronouncement of judgment : 07.08.2018
Decision : Dismissed
Suit for possession and permanent injunction
J U D G M E N T
1. The plaintiff has filed the present suit for possession in respect
of property i.e. house no.F581 (Old no.D2/531) having area of 52 sq. yds,
in Khasra no.726/2 situated at Jaitpur Extn. PartII, Kalindi Kunj Road,
New Delhi comprising two rooms, latrine bathroom and kitchen on the
ground floor as well as on the first floor and one room at the second floor
(hereinafter called "suit property"), on the ground of having purchased the
same from defendant no.4 vide unregistered GPA, Agreement to Sell,
Affidavit, Will, Possession Letter and Receipt all dated 12.03.2010 and has
also sought injunction to restrain the defendants from creating any third
party interest in the suit property.
CASE OF THE PLAINTIFF:
2. The case of the plaintiff is that he purchased the suit property
from defendant no.4 Sh. Om Prakash (who was impleaded later on) vide
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 2 /16
documents i.e. GPA, Agreement to Sell, Affidavit, Will, Possession Letter
and Receipt dated 12.03.2010 for total consideration of Rs.9.25 lakhs and
took the possession of the suit property on the same day i.e. 12.03.2010 and
kept his households articles like refrigerator, T.V., Bed, Sofa etc. and
appointed one Sh. Abrar Khan (PW2) to look after the suit property. On
14.03.2010 at about 5:00 pm, defendant no.1 to 3 came to the suit property
forcibly and stated that they have been sent by one Sh. D.P. Yadav, M.P.
and started abusing and beating Abrar Khan. Thereafter, 34 unknown
persons also entered into the suit property and started removing households
articles and put them in a tempo. Defendant no.1 to 3 illegally took Abrar
Khan in custody and brought him to P.S. Badarpur, New Delhi where they
wrongly confined Abrar Khan in the chamber of defendant no.1 and beat
Abrar Khan by kicks and fists and confined him from 5:30 pm to 8:00 pm
and while releasing Abrar Khan, defendant no.1 took the cash of Rs.1500/
in the purse of Abrar Khan and also threatened him.
3. Plaintiff further stated that thereafter defendant no.1 to 3 broke
open the locks of the suit property and inducted some unknown persons
whose names and addresses are not known to the plaintiff. After release
from custody, Abrar Khan came to the plaintiff. The plaintiff contacted
defendant no.1, 2 and 3 on which they replied that they have purchased the
suit property and claimed the ownership over the suit property but did not
show any title documents. They also threatened to implicate the plaintiff in
a false case. Plaintiff came to the suit property and asked the name and
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 3 /16
addresses of the person there but they refused and claimed to be tenants of
defendant no.1, 2 & 3. Plaintiff lodged a complaint dated 16.02.2010 with
the higher police authorities but to no avail. Plaintiff also sent legal notice
under Sec.140 of Delhi Police Act dated 15.03.2010 to defendant no.1
which was served. Defendant no.1, 2 & 3 have no right, title or interest in
the suit property and illegally dispossessed the plaintiff. Hence, the present
suit.
4. No formal written statement filed by defendant no.1 but
reply was filed by him which was forwarded by SHO PS Badarpur
wherein it is stated that on 13.03.2010, one Ms. Maya Devi had filed a
complaint wherein she stated that one Baba had cheated her for a sum of
Rs.20 lakhs who lives in Jaitpur, Khadda Colony, and lieu of that money,
the said Baba had handed over the possession of his house to her and on
that house, Saleem and Guddu taken illegal possession behind her back and
thrashed away the tantrik baba Om Prakash (Defendant no.4). On
14.03.2010, defendant no.4 again alongwith Maya Devi and her husband
Raja Ram and Ct. Kriya Ram reached the property where Saleem Kabadi,
Ashu and Mundu Khan had already come who all were neighbours of
Maya Devi. In the house of plaintiff Mohd. Saleem, Abrar @ Guddu and
Idrish and two ladies were found and Mohd. Saleem told that he has
purchased the house from Sh. Om Prakash and on that day only, he had
given the house on rent to Idrish and after investigations, defendant no.1
came back to police station and Idrish was released after interrogation.
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 4 /16
Neither Saleem nor Abrar were brought to the police station and defendant
denied beating anyone or threatening anyone though they were asked to tell
the whereabouts of Om Prakash. Defendant no.2 & 3 did not appear and
were proceeded exparte and their right to file written statement was
closed
5. Defendant no.4 filed written statement (who was later on
impleaded during the pendency of the case) wherein he stated that he was
absolute owner of the suit property and denied having sold the same to the
plaintiff or having executed any documents in favour of the plaintiff.
Defendant no.4 claimed to be the owner of the suit property and in
possession of the same and residing there since long back as owner. He
denied that the suit property was handed over by him to plaintiff or was
purchased by defendant no.4 from defendant no.1, 2 & 3. He denied that
plaintiff was dispossessed from the suit property by the defendants and he
prayed for dismissal of the suit.
6. From the pleadings of the parties following issues were framed
by the Ld. Predecessor of the court:
1. Whether the plaintiff is entitled to the decree of recovery as
prayed for? OPP
2. Whether the plaintiff is entitled to the decree of possession,
as prayed for? OPP
3. Whether the plaintiff is entitled the decree of permanent
injunction, as prayed for? OPP
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 5 /16
4. Whether the plaintiff has not filed the proper court fee, if so,
its effect? OPD
5. Relief.
7. During the Plaintiff's evidence, plaintiff examined himself as
PW1 who tendered his affidavit as Ex.PW1/A and relied upon the
following documents:
Ex.PW1/A is the site plan.
Ex.PW1/B1 is the Irrevocable GPA dated 12.03.2010.
Ex.PW1/B2 is the Agreement to Sell and purchase dated
12.03.2010.
Ex.PW1/B3 is the affidavit of defendant no.4 Om Prakash dated
12.03.2010.
Ex.PW1/B4 is the Will dated 12.03.2010.
Ex.PW1/B5 is the Possession Letter dated 12.03.2010.
Ex.PW1/B6 is the Receipt dated 12.03.2010.
Complaints Mark, B, C, D.
Legal Notice dated 15.03.2010 to defendant no.1 Ex.PW1/C1 &
Postal and courier receipts and UPC as Ex.PW2/C2 to C5.
8. PW2 Sh. Abrar Khan @ Guddu tendered his affidavit as
Ex.PW2/A and supported the case of the plaintiff and also deposed that he
was a witness to the documents Ex.PW1/B1 to B5.. Plaintiff also
examined PW3 Surender Kumar Aggarwal, who tendered his affidavit
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 6 /16
as Ex.PW3/A and deposed that in his presence, defendant no.4 executed
Ex.PW1/B1 to Ex.PW1/B6 and he and Abrar Khan signed as witnesses and
possession of the suit property was handed over by defendant no.4 to
plaintiff in his presence.
9. During defendants evidence, defendant No.4 himself
examined as D4W1 and tendered his affidavit as Ex.D4W1/A.
10. I have heard Ld. Counsel for both the parties and have gone
through the record carefully. The issue wise findings of the court are as
under:
FINDINGS OF THE COURT:
Issue no.1 Whether the plaintiff is entitled to recovery as prayed
for? OPP
11. Perusal of the plaint as well as amended plaint nowhere
reflects that there is any prayer for decree of recovery. Plaintiff has filed
the suit for possession and permanent injunction. Perusal of the para 13 of
the amended plaint also reflects that plaintiff is seeking only the relief of
possession as well as permanent injunction to restrain the defendants from
creating any third party interest in the suit property. Even the suit has been
valued only for the purposes of possession and for the relief of permanent
injunction. Therefore, no findings can be given in respect of the present
issue and in fact, there was no requirement to frame this issue and
therefore, this issue deserves to be deleted and is accordingly deleted.
Issue no.2. Whether the plaintiff is entitled to the decree of possession,
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 7 /16
as prayed for? OPP
Issue no.3. Whether the plaintiff is entitled to decree of permanent
injunction, as prayed for? OPP
12. The case of the plaintiff is that he has purchased the suit
property from the defendant no.4 by way of documents Ex.PW1/B1 to
Ex.PW1/B6 for a consideration of Rs.9.25 lakhs. Plaintiff has further
alleged that he took the possession of the suit property on the same date i.e.
12.03.2010 and PW2 Sh. Abrar Khan was appointed as a caretaker, but
after two days, defendant no.1, 2 & 3 forcibly took over the possession of
the suit property from Sh. Abrar Khan and also beat and took him to police
station Badarpur and confined him there.
13. At this stage, it is worthwhile to note that this is suit for
possession on the basis of title. During the pendency of the suit, the
plaintiff had moved an application for treating the suit under Section 6 of
The Specific Relief Act and this request was declined vide order dated
29.03.2017. Therefore, before dealing with the question whether the
plaintiff is entitled to decree of possession and permanent injunction on the
basis of documents Ex.PW1/B1 to Ex.PW1/B6, it is important to ascertain
whether these documents were in fact executed by defendant no.4 in favour
of the plaintiff on 12.03.2010 as alleged since the defendant no.4 has
disputed its execution and thereafter its legal import shall be decided.
14. Perusal of these documents reflects that Ex.PW1/B1 is the
Irrevocable GPA which runs into 7 pages and is a notarized document but
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 8 /16
bears the signature of defendant no.4 only on the last page. Similarly,
Ex.PW1/B2 is the Agreement to Sell and Purchase which runs into 4 pages
and bears the signature of defendant no.4 as well as that of plaintiff only on
the last page and this document is also a notarized document. Ex.PW1/B3
is the affidavit of defendant no.4 Om Prakash which is of two pages and it
bears the signature of defendant no.4 on the second page and is a notarized
document. Similarly, the Will Ex.PW1/B4 is of 2 pages and bears the
signatures of defendant no.4 only on the second page and is notarized
document. Ex.PW1/B5 is the Possession Letter and Ex.PW1/B6 is the
Receipt regarding payment of Rs.9.25 lakhs. All these documents except
Ex.PW1/B6 are notarized. The GPA Ex.PW1/B1 and Agreement to sell
Ex.PW1/B2 are also executed on stamp paper of Rs.50/ each.
15. As per the plaintiff, these documents were executed by
defendant no.4 whereas defendant no.4 has denied the execution of these
documents and has taken the stand that these are forged and fabricated
documents. In order to prove the signatures on these documents, plaintiff,
with the intervention of the court, sent these documents sent to the FSL
Rohini, New Delhi for expert examination. The report of the expert was
filed but the expert was not examined in the court. Even otherwise report of
the expert was that it has not been possible to express any definite opinion
on questioned signatures Mark Q1 to Q7.
16. Therefore, left with no other option, the signatures of
defendant no.4 on these documents were compared by the court with the
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 9 /16
naked eye. On record, there are admitted signatures of the defendant no.4
available on the written statement, affidavit, application under Sec.151
CPC and one more affidavit. These documents on comparison with the
naked yes show stark resemblance with the signatures of the defendant no.4
available on judicial record. Further, the testimony of PW2 and PW3 who
are the witnesses to all these documents Ex PW1/B5, corroborated the
case of the plaintiff regarding the execution of the documents by the
defendant no. 4. It is also worthwhile to note the background of the parties
and the witnesses in the present case in order to appreciate the manner of
execution of the documents.
17. PW1 Mohd. Saleem who is the plaintiff, during his cross
examination stated that he is not literate person and has a slight vision in
his left eye and no vision in his right eye. He further deposed that all the
documents Ex.PW1/B1 to Ex.PW1/B6 were got prepared by defendant
no.4 and said that documents were signed at the house of defendant no.4
Om Prakash. He further stated that deal was finalized on 09.03.2010 but no
agreement was signed on 09.03.2010. PW1 further stated that one boy
Abrar (PW2) had accompanied on 12.03.2010 to the house of the
defendant no.4 and one Surender was already found present in the house of
defendant when they reached there.
18. PW2 Abrar Khan @ Guddu corroborated the testimony of
PW1 and during his crossexamination had stated that he is studied upto
5th class and knows the plaintiff since his childhood as he is the brother in
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 10 /16
the larger family. PW2 further stated that documents were not prepared in
his presence but were brought as such by defendant no.4 Om Prakash. He
further stated that stamp papers were not purchased in his presence and
voluntarily stated that only documents were signed in his presence. He
stated that two days earlier, he was asked by the plaintiff to reach the house
of defendant no.4 on 12.03.2010 around 121.00 pm. PW2 further stated
that at the time of signing of the documents, he himself, plaintiff, defendant
no.4 and one Mr. Aggarwal and acquaintance of defendant no.4 were
present. He further deposed that at the time of signing of the documents,
Rs.9.25 lakhs were paid by the plaintiff to defendant no.4 and these were
currency notes of 500 and 1000 denomination. He further deposed that he
signed the documents as a witness and apart from him, Mr. Aggarwal also
signed as a witness. PW2 further deposed that he remained in the suit
property, after the execution of the documents both plaintiff and defendants
left.
19. Further, corroborating the testimony of PW2, PW3 Sh.
Surender Aggarwal, during his crossexamination stated that he is studied
upto 23 class and at the time of execution, 4 persons were present, namely,
plaintiff, Abrar (PW2), defendant no.4 Om Prakash and he himself. He
further deposed that he had signed all the documents which were prepared.
Perusal of the testimony of PW1, PW2 and PW3 duly proves that it is
defendant no.4 who had executed all these documents in the presence of
plaintiff and PW2 and PW3. Since the parties are not literate, therefore
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 11 /16
the manner in which these documents were executed is far from the perfect.
The documents bear the signatures of the parties only on the last page as
against the standard practice of signing all the pages. Even the witnesses
PW2 and PW3 simply put their signatures without writing their name,
father's name and address as is usually done. This departure is justified
considering the fact plaintiff and PW2 and PW3 are hardly having any
formal education. Adding to it, the plaintiff suffers from defect in his vision
and though in his crossexamination, it has come that he is doing only sale
and purchase of property.
20. Further, nothing has come in the testimony of defendant no.4
that on coming to know about the existence of documents Ex.PW1/B1 to
B6, the defendant no.4 had lodged any complaint with police or any other
authority. The suit was filed in the year 2010 and the testimony of D4W1
was recorded on 25.05.2018 when he stated during his cross examination
that he has not filed any police complaint or a court case against Mohd.
Saleem till date. Had the documents been forged, the defendant no.4 in the
ordinary course have taken the appropriate steps to ensure that his valuable
rights in the suit property are not diluted in any manner. This silence on the
part of the defendant no.4 substantiates the stand of the plaintiff regarding
the execution of the documents by defendant no.4.
21. In my considered opinion, on the preponderance of
probabilities, the documents Ex PW1/B1 to B6 were executed by the
plaintiff and defendant no. 4 by putting thumb impressions and signing at
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 12 /16
appropriate places and PW2 and PW3 stood witness thereto.
22. Prima facie, from the testimony of PW1 and PW2, it is clear
that possession of the suit property was handed over by the defendant no.4
to the plaintiff. The plaintiff has categorically stated that on 14.03.2010, the
defendant no.1 to 3 has taken the forcible possession of the suit property
from his caretaker Abrar Khan and later on 18.05.2010, when he visited the
property, defendant no.4 was found in possession of the suit property.
23. Now, the question arises whether by virtue of these documents
Ex.PW1/B1 to Ex.PW1/B6, any right, title or interest has been created in
favour of the plaintiff by defendant no.4 in respect of the suit property.
Before answering this question, it is worthwhile to note that there is no
document on record which could point towards the fact that defendant no.4
himself was the owner of the suit property at any point of time. The
plaintiff intends to get the possession of the suit property only on the basis
of unregistered documents without placing on record the previous chain of
the documents which could have prima facie show as to how defendant
no.4 was the owner of the suit property. Though, defendant no.4 in his
written statement has taken the stand that he is the owner of the suit
property, but defendant no.4 has not placed on record any document in this
regard, though in his cross examination D4W1 i.e. defendant Sh.Om
Prakash has stated that he had purchased the suit property from his Jijaji
Sh.Ashok but no document supporting this contention has been filed by the
defendant no.4. In the absence of any document showing the ownership of
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 13 /16
defendant no.4 to the suit property, the plaintiff cannot be held to the
entitled to the possession of the suit property.
24. There is another legal obstacle for the plaintiff. Agreement to
sell and GPA etc. which though are the preferred mode of transferring the
properties in Delhi, do not in law, confer any right, title or interest in the
suit property. The agreement to sell is dated 12.03.2010 and after the
24.09.2001, in Delhi, the agreement to sell are required to be registered and
90% of the stamp duty is required to be paid thereon. The proper legal
course available to the plaintiff in the present case was to seek decree for
specific performance of the agreement which has not been done by the
plaintiff. Instead, the plaintiff has sought possession on the basis of these
documents Ex.PW1/B1 to Ex.PW1/B6 which are unregistered documents,
coupled with the fact that there is no document on record to show that
defendant no.4 is the owner of the suit property, damages the case of the
plaintiff beyond repair. Adding to it, the plaintiff has not sought any
alternative relief of recovery of amount paid to defendant no.4. Though in
his wisdom, the plaintiff has acted with alacrity and has filed the present
suit on 19.03.2010. The promptitude with which the suit has been filed
show the prudence on the part of the plaintiff but as far as the legal position
is concerned, since no right, title or interest has accrued in favour of the
plaintiff on the basis of these unregistered documents, therefore, the
plaintiff is not entitled to any relief of possession and consequential
permanent injunction as prayed for.
CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 14 /16
25. Law in this regard is well settled. In Mac Associates v/s S.P.
Singh Chandel (2013) 198 DLT (CN) 9, it has been held by Hon'ble High
Court of Delhi as under:
" 13..xxxxxx Agreement to Sell does not vest any right in favour of a person
to the possession of property. Even if a person is put in possession of
property through an Agreement to Sell, he cannot protect his possession on
the pretext of part performance under Section 53A of the Transfer of
Property Act, 1882 unless such an agreement is a registered
document. Section 17 (1A) of the Registration Act, 1908, which has come
into force with effect from 24th September, 2001, reads as under:
Documents containing contracts to transfer for consideration, any immove
able property for purpose of Section 53A of the Transfer of Property Act,
1882 shall be registered if they have been executed on or after the com
mencement of the Registration and other Related Laws (Amendment) Act,
2001 and if such documents are not registered on or after such commence
ment, they shall have no effect for the purpose of the said Section 53A.
Once a person cannot even protect the possession, which he is holding, in
absence of an unregistered Agreement to Sell, then how such a person can
seek possession on the basis of such a document. In Sunil Kapoor v/s Him
mat Singh & Ors. 167 (2010) Delhi Law Times 806, a Single Judge of this
Court has held thus "a mere agreement to sell of immovable property does
not create any right in the property save the right to enforce the said
agreement. Thus, even if the respondents/plaintiffs are found to have
agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Ji wan Das v/s Narain Das, AIR 1981 Delhi 291 has held that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed."
26. Therefore, in view of the settled position in law, since no right, CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 15 /16 title or interest accrued in favor of the plaintiff by virtue of these documents, he is not entitled to possession and consequential injunction as prayed for. Accordingly, both these issues are decided against the plaintiff and in favour of the defendants.
Issue no.4. Whether the plaintiff has not filed the proper court fee, if so, its effect? OPD
27. The plaintiff has filed the court fees of Rs.11,385/ and has valued the suit for the relief of possession at Rs.9.25 lakhs and for the relief of permanent injunction at Rs.130/ and has paid proper court fees thereon. No evidence was led by the defendant nor any arguments were led in this regard. The plaintiff has paid the proper court fees and therefore, it is held that suit has been properly valued for the purposes of court fees and jurisdiction. Therefore, this issue is decided in favour of plaintiff and against the defendants.
Relief:
28. In view of the finding given above, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court on 07.08.2018 (Munish Markan) Digitally signed by MUNISH Additional District Judge01 (South) MARKAN MUNISH Date: District Courts, Saket, New Delhi MARKAN 2018.08.08 15:01:26 +0530 CS No.6515/16 Mohd. Saleem Vs. ASI Tej Ram & Ors. Page 16 /16