Delhi District Court
Indira Gupta vs Dda on 29 March, 2025
- 1 -
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.607460/2016
CNR No. DLWT03-000027-2001
IN THE MATTER BETWEEN: -
Smt. Indira Gupta
W/o Sh. Ramesh Kumar Gupta
R/o 1496/26, Nai Wala,
Karol Bagh, New Delhi-110005.
..........................PLAINTIFF
VERSUS
1). Delhi Development Authority
(through its Vice-Chairman)
Vikas Sadan, INA Market, New Delhi.
2). Mohinder Singh
S/o Sh. Santokh Singh
Village Jodhpur,
Tehsil & District Patiala, Punjab.
3). Gurbax Singh
S/o Sh. Santokh Singh
Principal, G.S. Public School,
Arorian Street, Patiala, Punjab (ex-parte vide order dated 17.12.2004).
Suit No.607460/2016 Indira Gupta Vs. DDA Page-1/45
- 2 -
4). Rajinder Singh
S/o Sh. Hardial Singh
43, Kalkaji, New Delhi (ex-parte vide order dated 17.12.2004).
5). Surinder Singh
S/o Sh. Hardial Singh
43, Kalkaji, New Delhi (ex-parte vide order dated 17.12.2004).
6). Varinder Singh
S/o Sh. Hardial Singh
43, Kalkaji, New Delhi (ex-parte vide order dated 17.12.2004).
7). Ram Singh
S/o Sh. Santokh Singh
F-25, Kalkaji, New Delhi.
8). Hari Singh
S/o Sh. Santokh Singh
F-25, Kalkaji, New Delhi.
9). Raj Kaur
W/o Late Sh. Puran Singh
A-255, Prashant Vihar,
New Delhi-110042 (ex-parte vide order dated 17.12.2004).
10). Pappu
S/o Late Sh. Puran Singh
A-255, Prashant Vihar,
New Delhi-110042 (ex-parte vide order dated 17.12.2004).
Suit No.607460/2016 Indira Gupta Vs. DDA Page-2/45
- 3 -
11). Babbu
S/o Late Sh. Puran Singh
A-255, Prashant Vihar,
New Delhi-110042 (ex-parte vide order dated 17.12.2004).
12). Baby
S/o Late Sh. Puran Singh
A-255, Prashant Vihar,
New Delhi-110042 (ex-parte vide order dated 17.12.2004).
13). Little
D/o Late Sh. Puran Singh
A-255, Prashant Vihar,
New Delhi-110042 (ex-parte vide order dated 17.12.2004).
14). Sarla Mongia
W/o Late Sh. Ranjit Singh
F-36, Kalkaji, New Delhi (ex-parte vide order dated 17.12.2004).
15). Sagar Mongia @ Lucky
W/o Late Sh. Ranjit Singh
F-36, Kalka ji, New Delhi (ex-parte vide order dated 17.12.2004).
16). Ritu @ Inu
D/o Late Sh. Ranjit Singh
F-36, Kalka ji, New Delhi (ex-parte vide order dated 17.12.2004).
17). Sonia Mongia
D/o Late Sh. Ranjit Singh
Suit No.607460/2016 Indira Gupta Vs. DDA Page-3/45
- 4 -
F-36, Kalka ji, New Delhi (ex-parte vide order dated 17.12.2004).
18). Smt. Gopal Devi
D/o Late Sh. Santokh Singh
Address not known (ex-parte vide order dated 03.08.2009).
19). Smt. Shanti Devi
D/o Late Sh. Santokh Singh
Address not known (ex-parte vide order dated 03.08.2009).
20). Smt. Pritam Kaur
D/o Late Sh. Santokh Singh
Address not known (ex-parte vide order dated 03.08.2009).
.....................DEFENDANTS
Suit filed on :- 09.02.2001
Judgment Reserved on :- 18.03.2025
Date of decision :- 29.03.2025
SUIT FOR DECLARATION, PERMANENT AND
MANDATORY INJUNCTION
JUDGMENT
By this judgment, this Court shall adjudicate a suit for declaration, permanent and mandatory injunction filed by the plaintiff against the defendant. Before adjudicating Suit No.607460/2016 Indira Gupta Vs. DDA Page-4/45
- 5 -
upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the plaintiff: -
1. This is a suit for declaration, permanent and mandatory injunction filed by the plaintiff against defendant/DDA, thereby seeking for possession of the suit property bearing Plot no. 1493, Outrem Line (Redevelopment Scheme), Kingsway Camp, Delhi (hereinafter referred to as 'suit property'). Further, a decree for mandatory injunction directing the defendant to transfer/mutate the suit property in the name of the plaintiff and handing over the possession to the plaintiff. The plaintiff further seeks a decree of permanent injunction thereby restraining the defendant/ DDA to transfer/mutate and handing over the possession of the suit property in any other persons' name.
2. The brief facts as mentioned in the amended plaint are that the office of defendant had allotted the suit property vide its allotment letter no. L7(1493)/83 in lieu of property no.
E-194 in the redevelopment scheme. That the original allottee sold the suit property to the plaintiff against full and final consideration of Rs.40,000/-. At the time of transaction, the original allottee executed an agreement to sell, GPA, payment receipt and a Will. That the Will and the payment receipt against the sale executed by the original allottee, Smt. Mukandi Bai, was got duly registered with the office of Sub-Registrar, Delhi whereas Suit No.607460/2016 Indira Gupta Vs. DDA Page-5/45
- 6 -
the GPA was got registered with the office of Sub- Registrar, Noida. That the original allottee of the suit property, Smt. Mukandi Bai, reportedly died on 28.08.1984 at Patiala. The plaintiff applied for change of name with the office of the defendant no.1 and asked for the possession letter and filed all the required documents vide letter dated 01.08.1986, 04.02.1992, 30.09.1993, 08.12.1993 but the office of defendant no.1 has intentionally and deliberately failed to inform the plaintiff about the existence of another Will of the deceased allottee and the suit pending in the Court of Patiala.
3. It has been further averred that the plaintiff applied for the mutation in her name and also offered to pay the 50% unearned increase as per the prevalent policy of the defendant no.1, but the office of defendant no.1 neither mutated the suit property in the name of the plaintiff nor issued the possession letter despite filing all the relevant documents with them.
4. It has been further averred that the plaintiff also made the representation for mutation and issuance of possession letter vide letters dated 21/24.05.1996 and 23.09.1996 but all in vain. However, the office of the defendant no.1 always insisted upon for the issuance of letter of administration by getting the probate of Will. Therefore, the plaintiff is constrained to file the petition for grant of probate of Will which is pending before the competent Court of Law. That the plaintiff came to know that the Suit No.607460/2016 Indira Gupta Vs. DDA Page-6/45
- 7 -
office of the defendant no.1 is going to transfer the suit property in some stranger's name by issuing the possession letter by adopting unfair means and handing over the possession of the suit property.
5. It has been further averred that none including the legal heirs of the original allottee can claim the suit property as the original allottee has transacted and sold her property and amongst other has also executed a registered Will dated 19.07.1984 by virtue of which she has bequeathed the suit property in favour of the plaintiff. That the plaintiff has again requested the office of defendant no.1 for appropriate action in the matter and filed copies of the relevant documents vide letter dated 31.01.2001 and 05.02.2001 delivered in the office of defendant against receipt on 01.02.2001 and 06.02.2001 respectively but all in vain.
6. It has been further averred that the defendant no.2 to 7 have claimed the suit property by virtue of the Will purported to have been executed by the deceased allottee, their mother, in the year 1978 whereas the allottee has sold and disposed of the suit property in the year 1984. Since the allottee has sold property during her life time, the Will, if any executed prior to that has no legal value and force and stands canceled and nullified. The allottee has not only got the Will registered as part of the sale of the suit property but also has executed certain other documents in support of the sale including the GPA, Receipt, Agreement to Sell etc. Suit No.607460/2016 Indira Gupta Vs. DDA Page-7/45
- 8 -
That defendant no. 2 to 8 have become dishonest and clandestinely tried to grab the property which their mother had sold during her life time by misrepresentation and concealment of act and fraud.
7. It has been further averred that the plaintiff is the only legal person to get the suit property from the office of the defendant no.1 as per law and the office of defendant no.1 cannot transfer/mutate the suit property in any third persons' name by all means and in blatant violation of law. Moreover, the Will dated 19.07.1984 executed by the mother of the defendants no.2 to 8 bears the signature of one of the legal heirs of the deceased allottee who has concealed this fact from the court of law while obtaining a decree in their favour.
8. Therefore, the plaintiff sent a legal notice dated 07.11.2000 to the office of the defendant but the office of the defendant no.1 has not transferred/mutated the suit property in favour of the plaintiff. Hence, the present suit.
Pleadings of the Defendants: -
9. That, written statement was filed on behalf of defendant no. 1/DDA denying the allegations as contained in the plaint wherein, inter alia, it has been submitted by defendant/DDA that the suit property was allotted to Smt. Mukandi Bai in lieu of Quarter no. E-194 Outram Line Kingsway Camp. She executed a registered Will dated 05.12.1978 bequeathing the sale property in favour of Sh.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-8/45
- 9 -
Mahinder Singh S/o Sh. Santosh Singh. The said Will was registered with the Sub Registrar Patiala on 01.01.1979. She died on 28.08.1984 at Patiala, Punjab. She left behind seven legal heirs. Sh. Mahinder Singh Son of the deceased allottee has also filed a suit no.204T/12.06.1992 at Patiala for declaration to the effect that the plaintiff is the owner in possession of plot bearing no.1493 measuring 160 sq. yds situated at Kingsway Camp redevelopment scheme and further for declaration that he is also owner in possession of suit property and further for declaration that he is the owner in possession of 1/8th share in agricultural land at village Jodhpur Tehsil and district Patiala. The said suit has been decreed in his favour vide judgment dated 19.09.2000. Sh. Mahinder Singh has submitted his claim for mutation of the said property in his name on the basis of registered Will, the judgment and decree dated 19.09.2000. Further, one Sh. Hardyal Singh another son of deceased allottee has requested DDA on 25.05.1987 that the suit property cannot be allotted to an individual son being joint Hindu family. The plaintiff Smt. Indira Gupta has also submitted her application for transfer of the suit property in her favour on the basis of agreement to sell, GPA and Will allegedly executed by late Smt. Mukandi Bai. The answering defendant has not yet mutated the suit property in favour of any of the claimants. The plaintiff has therefore, no cause of action and it is not entitled for the relief claimed. It is further submitted that the present suit is also bad for non-service of statutory notice U/s 53-B of the DDA Act, 1957 and the plaintiff has not properly Suit No.607460/2016 Indira Gupta Vs. DDA Page-9/45
- 10 -
valued the present suit for the purpose of Court fees and jurisdiction.
10.That, written statement was filed on behalf of defendant no.2 denying the allegations as contained in the plaint wherein, inter alia, it has been submitted that the suit filed by the plaintiff is frivolous, devoid of cause of action, barred by law of limitation and not maintainable as per law in so far as plaintiff has no right, title or interest over the suit property. It is further the case of defendant no.2 that Smt. Mukandi Bai was the mother of defendant no.2 and had executed a Will of her estate in favour of defendant no.2 and on the strength of said Will, the defendant no.2 was granted a decree of declaration of ownership in a suit bearing no.204-30/12/04/1992 passed by the Ld. Court of Ld. Civil Judge, Junior Division, Patiala, Punjab. It is further the case of defendant no.2 that the alleged agreement to sell, GPA, Will, receipt dated 19.07.1984 are forged and fabricated and further the plaintiff in order to prove these documents rather should have filed a suit seeking specific performance of these documents for execution of a registered sale deed as mere agreement to sell, GPA, Will, receipt etc. does not confer any title. Further, the present suit is a mere afterthought filed with a malafide intention to grab the suit property having been filed after a period of almost 17 years from the date of execution of the alleged agreement to sell, GPA, Will, receipt.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-10/45
- 11 -
11.That, written statement was filed on behalf of defendant no.7 and 8 denying the allegations as contained in the plaint wherein, inter alia, it has been submitted that the suit is barred by time; that the suit for declaration also does not lie as the plaintiff is not seeking the consequential relief of possession of the property in dispute, which is admittedly in possession of defendant no.2; that the suit is barred by Section 41 (h) of the SRA; that the suit for declaration and injunction does not lie as the remedy if any available to the plaintiff is by way of filing suit for specific performance but the same is also barred by limitation; that the suit is bad and is not maintainable in the present form. It has been further submitted that Smt. Mukandi Bai was the mother of the answering defendants (since died). That there was no question of her selling the property to the plaintiff as alleged in para under reply. That she had bequeathed the property to one of the brothers of the answering defendants namely Sh. Mohinder Singh i.e. defendant no.2. That on the strength of the Will executed by deceased Smt Mukandi Bai in favour of the defendant no.2, the latter filed a suit bearing no.204-T/12.4.92 which was decided by the Court of Ld. Civil Judge (Junior Division), Patiala. That neither Smt. Mukandi Bai entered into any agreement to sell with the plaintiff nor she issued any power of attorney nor she executed the alleged receipt/Will as falsely alleged. That all the documents i.e. alleged agreement to sell, GPA, payment receipt and Will are totally false, fraud and fabricated documents. That Smt. Mukandi Bai neither executed the said documents nor did she ever visited the Suit No.607460/2016 Indira Gupta Vs. DDA Page-11/45
- 12 -
office of the Sub-Registrar for getting any documents registered. That the plaintiff never served any notice upon the legal heirs of Smt. Mukandi that their that their mother had executed any agreement to sell or Will or GPA or receipt in his favour and, therefore, there is no question fo the plaintiff approaching the DDA for mutation as alleged I para under reply. That there is also no question of possession letter being issued in favour of the plaintiff. That Smt. Mukandi Bai had executed a Will in 1978 in fvour of one of her sons Sh. Mohinder Singh at Patiala and on the strength of the said Will, the suit property has come to vest in him which has been sanctified by a judicial pronouncement in the Court of Ld. Civil Judge, Patiala.
Issues: -
12.From the pleadings of the parties, following issues were framed in the suit vide order dated 12.05.2006: -
1). Whether the plaintiff is entitled to decree of declaration as prayed for? OPP
2). Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP
3). Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
4). Whether the suit is bad for want of statutory notice U/s 53B of DD Act? OPD
5). Whether the suit for declaration is barred by time in view of period of limitation described under Article 58 of Limitation Act? OPD Suit No.607460/2016 Indira Gupta Vs. DDA Page-12/45
- 13 -
6). Whether the suit is barred U/s 41(h) of Specific Relief Act? OPD Evidence: -
13.In order to prove her case, the plaintiff got examined three witnesses i.e. Sh. Anup Singh, Record Clerk, Office of Sub-Registrar-II, Kashmiri Gate, Delhi as PW-1, herself as PW-2 and Sh. Vivek Sharma, Registration Clerk, Office of Sub-Registrar-II, Noida, UP as PW-3.
a).PW-1 Sh. Anup Singh, Record Clerk, Office of Sub-
Registrar-II, Kashmiri Gate, Delhi brought the original summoned record i.e. payment receipt, registered vide registration no.14383, Book no.4, Volume no.1078 on page no.118 dated 19.07.1984 and exhibited the copy of the same as Ex.PW-1/1 (OSR).
PW-1 was cross-examined by Ld. SLO for defendant/ DDA.
b). PW-2 Smt. Indira Gupta led her evidence by way of affidavit which is Ex.PW-2/A, wherein he reiterated the averments made in the plaint. PW-2 relied upon certain documents which are exhibited/marked as under: -
Identification Description
Mark
Ex.PW-2/1 Copy of allotment letter (also exhibited
as Ex.DW-1/1).
Ex.PW-2/2 Copy of Will dated 19.07.1984.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-13/45
- 14 -
Ex.PW-2/3 Copy of payment receipt dated
19.07.1984. (also exhibited as
Ex.PW-1/1 (OSR)).
Ex.PW-2/4 Copy of agreement to sell dated
19.07.1984.
Ex.PW-2/5 Copy of GPA dated 19.07.1984.
Mark-A Copy of death certificate (de-exhibited
from Ex.PW-2/6 being photocopy).
Ex.PW-2/7 to Communications dated 01.08.1996, PW-2/10 (OSR) 04.02.1992, 30.09.1993 and 08.12.1993. Ex.PW-2/11 & Copy of letters dated 21/24.05.1996 and PW-2/12 23.09.1996.
Ex.PW-2/13 Certified copy of probate petition. Mark-B Copy of receipts dated 06.02.2001 (de-
exhibited from Ex.PW-2/15 being photocopy).
PW-2 was cross-examined at length on behalf of defendant no.2 as well as defendant no.1/DDA.
During cross-examination of PW-2, certain documents were also exhibited as Ex.PW-2/D2-1 i.e. order dated 31.07.2014, PW-2/D2-2 i.e. order dated 18.04.2017 passed by Hon'ble High Court of Delhi and PW-2/D2-3 i.e. order dated 26.05.2005.
c). PW-3 Sh. Vivek Sharma, Registration Clerk, Office of Sub-Registrar-II, Noida, UP brought the summoned record i.e. the certified copy of the GPA, which is Ex.PW-3/1. PW-3 placed the same on record and compared with the original and found it to be the copy of the same.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-14/45
- 15 -
PW-3 was not cross-examined on behalf of defendant no.1/DDA despite opportunity. PW-3 was cross-examined on behalf of defendant no.2.
Thereafter, PE was closed vide order dated 16.12.2021 and the matter was proceeded further for DE.
Defendant Evidence: -
14.In defence, the defendant no.1/DDA got examined only one witness i.e. Sh. Pardeep Kumar, Asst. Director (OSB), DDA as D1W-1, who led his evidence by way of affidavit Ex.D1W-1/A. D1W-1 also relied upon certain documents which are as under: -
Identification Mark Description
Ex.D1W-1/1 (OSR) Copy of allotment letter dated
28.10.1983.
Mark-A Copy of Will dated 05.12.1978 (de-
exhibited from Ex.D1W-1/2 being
photocopy).
Ex.D1W-1/3 De-exhibited (death certificate)
being not on record.
Ex.D1W-1/4 (OSR) Certified copy of orders dated
19.09.2000 in suit
no.204T/12.06.1992.
Ex.D1W-1/5 (OSR) Copy of request dated 25.05.1987.
Ex.D1W-1/6 Will already exhibited as
Ex.PW-2/2, Receipt already Mark-
D, Agreement to Sell already
Ex.PW-2/4 and General Power of
Attorney already Ex.PW-2/5.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-15/45
- 16 -
D1W-1 was also cross-examined at length on behalf of plaintiff.
Thereafter, vide separate statement, D1W-1 closed DE on 20.09.2024.
15.In defence, the defendant no.2 got examined himself as DW-1, who led his evidence by way of affidavit Ex.
DW-1/A. DW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex. DW-1/1 The judgment passed by Ld. ADJ,
Central, Delhi dated 31.07.2014
(already exhibited as Ex.PW-2/D2/1 in
cross-examination of PW-2 on
07.08.2019).
Ex. DW-1/2 The judgment and decree dated
26.05.2005 passed in CA
no.78T/FTC/8112K/131003 (already
Ex.PW-2/D-2/3 on 07.08.2019).
Ex. DW-1/3 Certified copy of the order dated
18.04.2017 passed by Hon'ble High
Court of Delhi in Test case no.31/2003
(wrongly mentioned as FAO no.293/14
in the affidavit) (already
Ex.PW-2/D-2/2 on 07.08.2019).
DW-1 was also cross-examined at length on behalf of plaintiff. During cross-examination, certain documents were confronted to DW-1 and were exhibited as Ex. DW-1/P1 to DW-1/P10 (OSR) i.e. letters and receipts (though not admitted by DW-1).
Suit No.607460/2016 Indira Gupta Vs. DDA Page-16/45
- 17 -
Thereafter, vide separate statement, defendant no.2 closed DE on 12.05.2023. No further DE was led on behalf of any other defendants being ex-parte. Thus, the matter was proceeded further for final arguments.
Decision with reasons: -
16.That final arguments were concluded on behalf of both the sides by virtue of filing written final arguments along with advancing brief final arguments. During the course of final arguments and even in the written final arguments, the parties have placed reliance on their pleadings and evidence advanced on their behalf. The written arguments filed forms part of the record and same are not being reiterated for the sake of brevity. The relevant submissions of both sides are being discussed herein below.
17. It was argued by Ld. counsel for plaintiff that the suit of the plaintiff is very much maintainable and is further not barred by any law including limitation, Section 53 of DDA Act and Section 41 (h) of the SRA. It was further argued by Ld. counsel for plaintiff that plaintiff has been able to prove her case on the scale of preponderance of probabilities as the Will in favour of plaintiff dated 19.07.1984 is later in point of time than the Will in favour of defendant no.2 dated 05.12.1978. It was thus argued that the Will dated 19.07.1984 in favour of plaintiff is enforceable as per law. It was further argued that the documents i.e. ATS, GPA, Will and receipt are concluded Suit No.607460/2016 Indira Gupta Vs. DDA Page-17/45
- 18 -
sale documents and thus the plaintiff is entitled to the decree of the suit. It was further argued by Ld. counsel for plaintiff that the DDA was duly served with the legal notice dated 07.01.2000 vide receipt no.2135 and, therefore, the requirement of Section 53 of the DDA Act stands complied with. It was further argued by Ld. counsel for plaintiff that the GPA and receipt are duly registered and thus there lies presumption of their correctness and further the plaintiff has protection of Section 53 A of Transfer of Property Act.
That the plaintiff side relied upon following citations in support of their case:-
i) Khosla Medical Institute Vs. DDA & Anr. [2022/DHC/005237].
ii). Ghanshyam Vs. Yogender Rathi [Civil Appeal no.7527-7528 of 2012].
iii). Manik Majumdar & Ors. Vs. Deepak Kumar Saha (dead through LRs & Ors.) [Civil Appeal no.2965 of 2022].
iv). Kuldeep Singh Vs. Surinder Singh [1999 RLR 20].
18. Per contra, it was argued by Ld. counsel for defendant no.2 that the suit of the plaintiff is barred by the law of limitation as the same was filed after a period of 17 years from the date of execution of the purported ATS, GPA, Will and receipt on 19.07.1984. It was further argued by Ld. counsel for defendant no.2 that the plaintiff should Suit No.607460/2016 Indira Gupta Vs. DDA Page-18/45
- 19 -
have filed a suit seeking the relief of specific performance of ATS within the period of 3 years from date of its execution or at least within a period of 3 years from date of demise of Smt. Mukandi Bai on 28.08.1984. It was further argued by Ld. counsel for defendant no.2 that the documents in the nature of ATS, GPA, Will and receipt do not confer any ownership upon the plaintiff since in the ATS itself, it has been mentioned that party may resort to specific performance of the contract in case of non- compliance by the other party and further plaintiff is admittedly not in possession of the suit property. It was further argued by Ld. counsel for plaintiff that the suit of the plaintiff is further barred as suit for declaration without all consequential reliefs i.e. the relief of possession in the present matter is not maintainable. It was further argued by Ld. counsel for defendant no.2 that the probate petition filed by the plaintiff was also dismissed on the ground that the plaintiff was unable to prove the suspicious circumstances arising in the pleadings and testimonies of the plaintiff and the same was concealed by plaintiff from this Court. It was further argued by Ld. counsel for plaintiff that suit is also bad for non service of mandatory notice U/s 53B of DDA Act in so far as mere confrontation of the alleged receiving of legal notice dated 07.11.2000 does not amount to proof so much so the DDA was not granted any opportunity to rebut the same. It was further argued by Ld. counsel for defendant that the plaintiff herself was unable to answer any questions put to her during the cross- examination, which further amounts to drawing of adverse Suit No.607460/2016 Indira Gupta Vs. DDA Page-19/45
- 20 -
inference against the plaintiff. It was further argued by Ld. counsel for defendant no.2 that further the ATS, GPA, Will and receipt does not amount to a registered sale deed and thus does not confer any ownership rights upon the plaintiff qua the suit property. It was further argued by Ld. counsel for defendant no.2 that thus the suit of the plaintiff is liable to be dismissed.
The defendant no.2 has placed reliance on following citations in support of their case:-
i) Rajasthan High Court Advocate Association Vs. Union of India [AIR 2001 SC 416].
ii). Khatri Hotels Pvt. Ltd. Vs. Union of India [(2011) 15 (addl) SCR 299].
iii). Manoj Kumar Vs. Gyasi Ram [RSA no.88/2009, Delhi High Court].
iv). Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana [AIR 2012 SC 206].
19. This Court has given its thoughtful consideration to the entire material available on record including the final arguments advanced on both the sides and citations relied upon. Now, this Court shall give its issue-wise findings.
20. Issue No. (1), (2) & (3) -
1). Whether the plaintiff is entitled to decree of declaration as prayed for? OPP Suit No.607460/2016 Indira Gupta Vs. DDA Page-20/45
- 21 -
2). Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP
3). Whether the plaintiff is entitled to permanent injunction as prayed for? OPP The onus to prove these issues was upon the plaintiff.
At the outset, it is pertinent to mention that plaintiff has sought the reliefs, firstly, a decree of declaration that the plaintiff is the sole owner and entitled for possession of the suit property bearing Plot No.1493, Outrem Line (Redevelopment Scheme), Kingsway Camp, Delhi [hereinafter 'suit property']; secondly, a declaration to the effect that the decree passed by the Civil Court of Patiala in respect of property no.1493, Outrem Line (Redevelopment Scheme), Kingsway Camp, Delhi be declared as null and void and ineffective; thirdly, a decree of mandatory injunction against defendant thereby directing defendant to transfer/mutate the suit property in the name of plaintiff and handing over the possession; fourthly, a decree of permanent injunction thereby restraining defendant to transfer/mutate and handing over the possession of the suit property in any other person's name.
The brief case of the plaintiff is that the plaintiff purchased the suit property from its original allottee Smt. Mukandi Bai (now deceased) vide Agreement to sell, GPA, Will and receipt dated 19.07.1984 for a consideration of Rs.40,000/-, which have been tendered in evidence as Ex.PW-2/2 to Ex.PW-2/5. That the Agreement to sell, Will and Receipt Suit No.607460/2016 Indira Gupta Vs. DDA Page-21/45
- 22 -
dated 19.07.1984 were got executed at Delhi, whereas the GPA dated 19.07.1984 was got executed at Noida. That, after the demise of Smt. Mukandi Bai on 28.08.1984 at Patiala, the plaintiff applied for the mutation of the suit property in the name of plaintiff with defendant no.1/DDA along with issue of letter of possession and filed all the required documents vide letter dated 01.08.1986, 04.02.1992, 30.09.1993, 08.12.1993, which have been tendered in evidence as Ex.PW-2/7 to Ex.PW-2/10 (OSR). Further as per the case of plaintiff, DDA did not process the application of the plaintiff and further did not inform the plaintiff with respect to existence of another Will executed by Smt. Mukandi Bai during her lifetime dated 05.12.1978 and subsistence of a suit pending before Courts at Patiala, Punjab.
That, as per the plaint, the plaintiff again made representation for mutation and issue of possession letter to DDA vide letters dated 21.05.1996, 24.05.1996 and 23.09.1996, which have been tendered in evidence as Ex.PW-2/11 and Ex.PW-2/12; however, to no avail. Furthermore, it has been averred that DDA kept on insisting the plaintiff for getting the letters of administration issued by getting the Will in her favour probated and consequently, the plaintiff filed the probate case, the copy of the probate petition has been tendered in evidence as Ex.PW-2/13. It is further the grievance of the plaintiff that despite service of legal notice upon DDA dated 07.11.2000, DDA did not pay any heed to the Suit No.607460/2016 Indira Gupta Vs. DDA Page-22/45
- 23 -
application of the plaintiff for mutation and issue of possession letter. Thus, the plaintiff was constrained to institute the present suit.
Per contra, the case of defendant no.2 being the LR of Smt. Mukandi Bai (now deceased) is that, the suit filed by the plaintiff is frivolous, devoid of cause of action, barred by law of limitation and not maintainable as per law in so far as plaintiff has no right, title or interest over the suit property. It is further the case of defendant no.2 that Smt. Mukandi Bai was the mother of defendant no.2 and had executed a Will dated 05.12.1978 of her estate in favour of defendant no.2 and on the strength of said Will, the defendant no.2 was granted a decree of declaration of ownership in a suit bearing no.204-30/12/04/1992 passed by the Ld. Court of Ld. Civil Judge, Junior Division, Patiala, Punjab which stands upheld by the judgment passed by Ld. District Judge, Patiala dated 06.05.2005 and tendered as Ex. DW-1/2. It is further the case of defendant no.2 that the alleged agreement to sell, GPA, Will, receipt dated 19.07.1984 are forged and fabricated and further the plaintiff in order to prove these documents, rather, should have filed a suit seeking specific performance of these documents for execution of a registered sale deed as mere Agreement to sell, GPA, Will, receipt etc. does not confer any title. Further, the present suit is a mere afterthought filed with a malafide intention to grab the suit property having been filed after a period of almost 17 years from the date of execution of the alleged Agreement to sell, GPA, Suit No.607460/2016 Indira Gupta Vs. DDA Page-23/45
- 24 -
Will, receipt on 19.07.1984.
In order to prove his case, defendant no.2 got himself examined as DW-1 and tendered in evidence the certified copy of a judgment passed by Ld. ADJ, Central, Delhi dated 31.07.2014, which has been tendered in evidence as Ex.DW-1/1 and also confronted to the plaintiff/PW-2 during her cross-examination on 07.08.2019 and exhibited as Ex.PW-2/D2/1, whereby the probate case filed by the plaintiff with respect to the Will dated 19.07.1984 in her favour purportedly by Smt. Mukandi Bai (now deceased) was dismissed. It is pertinent to mention that, the plaintiff has concealed this fact from this Court. Further, the defendant no.2 has tendered in evidence the certified copy of judgment and decree dated 26.05.2005 passed in an appeal bearing no.283-P/12.6.92 as Ex. DW-1/2 and also confronted to PW-2 as Ex. PW-2/D-2/3 to the effect that, the appeal filed by one of the LR of Smt. Mukandi Bai namely Sh. Gurbux Singh, was dismissed; consequently, the judgment passed Ld. Civil Court, Patial, Punjab dated 19.09.2000 has attained finality. Further, defendant no.2 tendered in evidence the certified copy of the order dated 18.04.2017 passed by Hon'ble High Court of Delhi in Test case no.293/14 as Ex. DW-1/3 titled 'Mohinder Singh Vs. The State & Ors', whereby orders were passed to mutate the suit property in the name of defendant no.2.
Further, DDA in order to prove its stand that, as per the settled law and policy, they could not have mutated the suit Suit No.607460/2016 Indira Gupta Vs. DDA Page-24/45
- 25 -
property in the name of the plaintiff and issued letters of possession because the LR of the original allottee Smt. Mukandi Bai has presented a claim to the suit property by virtue of a Will dated 05.12.1978 and further the defendant no.2 had a decree of declaration of ownership in his favour in suit no.204/12.06.92 passed by Ld. Civil Judge, Patiala, whereby the defendant no.2 was declared to be the owner of the suit property at Kingsway Camp Redevelopment Scheme measuring 160 sq. yds. and was further declared to be the owner and in possession of 1/8th share in the agricultural land situated at Village Jodhpur, Tehsil, District Patiala, Punjab. The witness of DDA tendered the decree dated 19.09.2000 in evidence as Ex.D1W-1/4 (OSR) and further placed on record a copy of request from another LR Sh. Hardayal Singh of Smt. Mukandi Bai dated 25.05.1987 to the effect that the suit plot cannot be allotted to any individual son being a joint Hindu Family property. The copy of said request letter is tendered in evidence as Ex.D1W-1/5 (OSR). Further, the copy of allotment letter dated 28.10.1983 in favour of the original allotee Smt. Mukandi Bai (now deceased) is tendered in evidence as Ex.D1W-1/1 (OSR) and the copy of Will, agreement to sell, GPA and receipt of the plaintiff dated 19.07.1984 was also tendered in evidence as Ex.D1W-1/6 (which are already exhibited as Ex. PW-2/2 to Ex. PW-2/5).
A perusal of documents tendered in evidence on behalf of plaintiff as discussed herein above transpire that, the plaintiff has instituted the present suit on the strength of Suit No.607460/2016 Indira Gupta Vs. DDA Page-25/45
- 26 -
Agreement to sell (ATS), General power of attorney (GPA), Will and Receipt dated 19.07.1984 stating them to be the sale documents of the suit property. However, it is pertinent to mention that, the ATS and Will are unregistered documents. Further, ATS has been purportedly executed at Delhi and neither contains the details of the attesting witnesses nor identifies the thumb impression of Smt. Mukandi Bai as 'Left Thumb Impression' or 'Right Thumb Impression'. Further, a careful reading of ATS materializes that, though plaintiff is portraying it as a concluded sale deed. However, ATS is a mere prelude to a potential future sale deed in so far as, even in the spirit, the ATS is a mere executory agreement to sell which neither conferred ownership nor the possession of the suit property upon the plaintiff. ATS further mentions that, "(...) In case the first party backs out from the said transaction then the second party is fully entitled to get the said transaction enforced through Court of law by specific performance of suit at the risk and cost of first party." Thus, it is evidently clear that, the ATS is not a concluded sale deed nor it has been proved by calling the attesting witness thereto. Rather, the parties were required to execute further documents and take steps for making it a concluded contract of sale. At this stage, it is further pertinent to mention that, the Receipt dated 19.07.1984, even though registered, does not attach any description to the purported payment of Rs.40,000/- as to the purpose behind it.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-26/45
- 27 -
It is further noteworthy that, as far as the purported Will in favour of the plaintiff is concerned, same forms part of a series/chain of documents i.e., ATS, GPA, receipt and Will. Further, the Will dated 19.07.1984 is an unregistered document, though not required by law to be mandatorily registered. However, the same has not be proved by the plaintiff as per the mandate of the law i.e., by summoning and examining an attesting witness to the Will. At this stage, it is pertinent to mention that, the validity and enforceability of the said Will dated 19.07.1984 has been tested and adjudicated by the Ld. ADJ, Central, Delhi in PC No. 425/06 vide order dated 31.07.2014 instituted by the plaintiff herein against the Lrs. of Smt. Mukandi Bai i.e., defendants (except defendant no. 1/DDA), which was disposed of as dismissed on the grounds of suspicion as to the validity and enforceability of the said Will which the plaintiff was not able to satisfy. At this stage, it is pertinent to mention that, in the Will dated 19.07.1984 purportedly in favour of the plaintiff, there is no mention of revocation/existence of the previous Will dated 05.12.1978 in favour of defendant no. 2, which raises suspicion over the same. Further, it has come on record that, even one LR of Smt. Mukandi Bai (now deceased) was a witness to the purported ATS, GPA,Will and Receipt dated 19.07.1984, however his name has neither been mentioned nor has he been summoned as a witness by the plaintiff, which also raises suspicion.
Furthermore, perusal of ATS and GPA contemplates that Suit No.607460/2016 Indira Gupta Vs. DDA Page-27/45
- 28 -
former was got executed at Delhi, while the GPA was got executed at Noida. Further, the same was highly objected to by the defendant side, however, plaintiff was unable to provide any explanation to the same. Furthermore, ATS is an unregistered document and as per the settled tenets of law as enshrined under Section 54 of the Transfer of Property Act, 1882 [hereinafter "the TPA"] and Section 17 of the Registration Act, 1908, sale of an immovable property above the value of Rs.100 can be effected only through a registered sale deed. Further, these purported sale-purchase documents heavily relied upon by the plaintiff, in effect neither has conferred title nor the possession of the suit property in the plaintiff. It is evident from the terms and conditions of these ATS and GPA, the pleadings of the plaintiff and the testimony of the plaintiff/PW-2 that, the plaintiff was never given the possession of the suit property, as such, the plaintiff kept applying for mutation and issue of possession letter to herself by DDA. Furthermore, the only right the plaintiff had, if any, was to institute a suit for specific performance of the purported ATS, GPA, Will and Receipt, that too within a period of three years from the date of the execution of the ATS and GPA.
In this regard, that ATS, GPA, Will etc. do not confer any ownership rights, this Court is fortified by the locus classicus in the case of Suraj Lamp & Industries (P) Ltd. vs State of Haryana & Anr. [AIR 2012 SC 206] wherein the Hon'ble Apex Court has clarified and further reiterated the Suit No.607460/2016 Indira Gupta Vs. DDA Page-28/45
- 29 -
already existing principles of law with respect to transfer of immovable property as laid down under Section 54 of the TPA and Section 17 of the Registration Act and not declare a new principle of law. In this regard, it has been held as follows:
"(...) It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
(...)
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of Suit No.607460/2016 Indira Gupta Vs. DDA Page-29/45
- 30 -
immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales. (...)
18. 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 clear that if the documents relating to `SA/GPA/WILL transactions has been accepted Suit No.607460/2016 Indira Gupta Vs. DDA Page-30/45
- 31 -
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. (...)"
[Emphasis Supplied] Furthermore, plaintiff has nowhere categorically pleaded that, she is in the possession of the suit property nor there any supporting documents have been placed on record, thus even the theory of part possession as enshrined under Section 53A of the TPA, has no application in the present matter and consequently, the plaintiff has no ownership rights over the suit property. At this stage, it is further pertinent to mention that the judgments relied upon by the plaintiff has no application in the present matter either on the point of law or on the point of fact and thus, no reliance is being placed upon them. That, the same is further discernible from the testimony of the plaintiff/PW-2 wherein the plaintiff was neither aware nor was able to answer any question w.r.t the suit property or the purported sale transaction. In fact, plaintiff/PW-2 was not able to answer to any question and merely stated that "I do not know about it (...)", in response to every question put to her during cross-examination. As such this Court is of the considered opinion that PW-2 being the plaintiff herself has no knowledge with respect to the suit property, the transaction in question, the seller i.e. Smt. Mukandi Bai and her LRs, which further raises the suspicion. Same is Suit No.607460/2016 Indira Gupta Vs. DDA Page-31/45
- 32 -
further bolstered by the fact that plaintiff grossly failed in getting these documents i.e. ATS, GPA, Will and receipt proved by summoning the attesting witnesses thereto.
At this stage, it is further pertinent to mention that, evidently and admittedly, the plaintiff is not in the possession of the suit property. The plaintiff/PW-2 has admitted during her cross-examination that, they are not in the possession and the suit property is a vacant piece of land. That, the same if further bolstered by the fact that, plaintiff firstly, kept applying for the issue of possession letter and secondly, neither placed on record any documentary proof of possession nor the site plan of the suit property. Further, the plaintiff has stealthily stated in the prayer clause that, it be declared that plaintiff is the owner of suit property and entitled to possession. Further, plaintiff has sought mandatory injunction against DDA to mutate property in name of plaintiff and hand over the possession. Thus, it is further crystal clear that, plaintiff is not in the possession of the suit property. Despite the same, the plaintiff grossly failed in seeking the relief of possession of the suit property by valuing the same at the market value of the suit property for the purpose of jurisdiction and court fees nor ever attempted to amend the plaint seeking the relief of possession.
In this regard, it is the settled law of declaratory relief as propounded under the proviso to Section 34 of the Specific Relief Act, 1963 [hereinafter "the SRA"] that, "(...) no Suit No.607460/2016 Indira Gupta Vs. DDA Page-32/45
- 33 -
court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." [Emphasis Supplied] It is no more res integra that, a suit merely seeking the relief of declaration of ownership without the relief of possession, when the plaintiff is not in the possession of the suit property, such a suit is barred by the law prescribed under Section 34 of the SRA, as the same has been held in a catena of judgments. It has been reiterated in a recent judgment passed by the Hon'ble Supreme Court of India in case titled Vasantha (dead) Thr. Lr. Vs. Rajalakshmi @ Rajam (dead) Thr. Lrs. [Civil Appeal No. 3854/2014] decided on 13.02.2024, wherein it has been held as follows:
"29. This position has been followed by this Court in Union of India v. Ibrahim Uddin (2-Judge Bench)30, elaborated the position of a suit filed without the consequential relief. It was observed:
"(xxx) 55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not Suit No.607460/2016 Indira Gupta Vs. DDA Page-33/45
- 34 -
sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567])
57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.
58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same." (xxx) [Emphasis Supplied] Thus, this Court is of the considered opinion that, the suit of the plaintiff is not maintainable for want of seeking the relief of possession under Section 34 of the SRA and Suit No.607460/2016 Indira Gupta Vs. DDA Page-34/45
- 35 -
further, the ATS, GPA, Will and Receipt dated 19.07.1984 do not confer any ownership rights in the plaintiff qua the suit property. As, such the plaintiff is not entitled to the relief of declaration of ownership including the consequnetial relief of declaration of decree passed by the Court at Patiala, Punjab as null and void, permanent and mandatory injunction as the same are incidental upon the main relief.
Accordingly, issues no. 1, 2 and 3 are decided in favour of the defendants and against the plaintiff.
21. Issue No. (4)
4). Whether the suit is bad for want of statutory notice U/s 53B of DD Act? OPD The onus to prove this issue was upon the defendant no.1/DDA.
It is the contention of DDA that, since the plaintiff has instituted the present suit seeking the relief of declaration along with consequential reliefs, therefore, it was incumbent upon the plaintiff to serve the statutory notice upon DDA U/s 53B of the Delhi Development Authority Act, 1957 [hereinafter "the DDA Act"]. It was further contended by DDA that the present suit is not maintainable for want of service of mandatory notice U/s 53 B of the DDA Act.
In this regard, the defendant i.e., DDA has relied upon the Suit No.607460/2016 Indira Gupta Vs. DDA Page-35/45
- 36 -
provision under Section 53 B of the DDA Act. Before adverting further, let us first discuss Section 53B of the DDA Act, which reads as under:
"53B. Notice to be given of suits.--(1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiffs and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.]"
[Emphasis Supplied] Suit No.607460/2016 Indira Gupta Vs. DDA Page-36/45
- 37 -
However, it is pertinent to mention that it has been averred in the plaint that a legal notice dated 07.11.2000 was served upon DDA. Further, the receiving of the said legal notice dated 07.11.2000 by the Dal Clerk/concerned official of DDA was confronted to D1W-1 during his cross-examination and was exhibited as Ex.D1W-1/PX. However, it was replied by D1-W-1 that as per the available record in the case file of DDA the said legal notice is not available in the record of DDA. It is further pertinent to mention that D-1W-1 was not further cross- examined on this aspect and as such the testimony of the D1W-1 was conceded to by the plaintiff side. Further, the said document was merely produced at the stage of cross- examination of D1W1 and was not annexed with the plaint. As such, the DDA was not granted any opportunity to rebut the same. Furthermore, the plaintiff did not even prove the alleged receiving of the legal notice by DDA by summoning the Dak Clerk. Further, t he judgment relied upon by the plaintiff with respect to this issue i.e. Khosla Medical Institute has no application in the present matter due to peculiar facts and circumstance of the present matter. In such a circumstance, this Court is of the opinion that defendant no.1/DDA has been able to discharge the onus cast upon them.
Accordingly, issue no.4 is decided in favour of defendant/ DDA and against the plaintiff.
22. Issue No. (5) Suit No.607460/2016 Indira Gupta Vs. DDA Page-37/45
- 38 -
5). Whether the suit for declaration is barred by time in view of period of limitation described under Article 58 of Limitation Act? OPD The onus to prove this issue was upon the defendants.
It is pertinent to mention that it was contended by defendant side that as per the averments in the plaint, the plaintiff purportedly purchased the suit property vide agreement to sell, GPA etc. on 19.07.1984 from Smt. Mukandi Bai (since deceased). It was further contended on behalf of defendant side that documents in the nature of agreement to sell, GPA etc. even though registered do not confer any title upon the plaintiff and thus the plaintiff should have instituted the suit seeking the relief of specific performance of the agreement to sell or declaration of ownership along with the consequential reliefs within a period of 3 years from 19.07.1984 being the period of limitation for the relief of declaration as per Article 58 of the Limitation Act. It is thus the case of the defendant side that the suit of the plaintiff is hopelessly barred by the law of limitation since the present suit was filed on 09.02.2001 i.e. with a delay of about 17 years from the date of execution of the agreement to sell, GPA etc. Per contra, it is the case of the plaintiff that after the purchase of the suit property from Smt. Mukandi Bai since deceased on 19.07.1984, the plaintiff wrote several letters to DDA, thereby applying for mutation of the suit property Suit No.607460/2016 Indira Gupta Vs. DDA Page-38/45
- 39 -
in the name of the plaintiff and issue of possession letter vide communications dated 01.08.1986, 04.02.1992, 30.09.1993, 08.12.1993, 21.05.1996, 24.05.1996, 01.08.1996 and 23.09.1996, however, to no avail. Thereafter the plaintiff further issued a legal notice upon DDA dated 07.11.2000 upon DDA to process the request of the plaintiff for mutation and issue of possession letter.
That the receiving of said legal notice dated 07.11.2000 was put in cross-examination of D1W-1 as Ex.D1W-1/PX and further the communications dated 04.02.1992, 30.09.1993, 08.12.1993, 01.08.1996 were tendered in evidence as Ex.PW-2/7 to Ex.PW-2/10 (OSR) and further the letters dated 21.05.1996, 24.05.1996 and 23.09.1996 were tendered in evidence as Ex.PW-2/11 and Ex.PW-2/12. That the perusal of these document transpires that plaintiff had been regularly writing letters and making communications to the DDA for processing her request for mutation of suit property in her name and issuing the letters of possession thereof. However, the same could not be processed by DDA as it has been stated in the WS filed by DDA that due to multiple claims upon the suit property as well as pendency of certain cases, the process of plaintiff could not be processed and further the defendant no.2 herein being the LR of Smt. Mukandi Bai had presented a claim to the suit property by virtue of a Will of the suit property executed by Smt. Mukandi Bai in favour of her LR dated 05.12.1978 and has been tendered in evidence by DDA as Mark-A. Suit No.607460/2016 Indira Gupta Vs. DDA Page-39/45
- 40 -
It is pertinent to mention that as per the documents tendered in evidence by plaintiff/PW-2, the last communication between the plaintiff and DDA was dated 23.09.1996 with respect to mutation and issue of possession letter. Thereafter, plaintiff straightaway purportedly issued a legal notice dated 07.11.2000 to DDA i.e. after a lapse of about more than 4 years. Further, the present suit was filed on 09.02.2001. It is pertinent to mention that the plaintiff in the present suit has sought relief of declaration of ownership, declaration of decree passed by the Civil Court of Patiala with respect to the suit property as null and void, mandatory and permanent injunction. It is pertinent to mention that the limitation period for all the above said reliefs is a period of 3 years and even if the date of last communication/correspondence between the plaintiff and DDA is to be reckoned for the running of the limitation period i.e. 23.09.1996 then also the present suit has been evidently filed beyond the limitation period of 3 years. Further, the date of issue of legal notice dated 07.11.2000 cannot be considered as date for conferring of the cause of action since the legal notice dated 07.11.2000 in itself had been issued beyond the expiry of the limitation period after about 4 years of the last date of communication/correspondence between the plaintiff and the DDA without any explanation to that effect by the plaintiff side with respect to the gap of 4 long years of taking no steps by plaintiff. At this stage, it is further pertinent to mention that plaintiff has nowhere in her plaint has categorically stated the date as to when she Suit No.607460/2016 Indira Gupta Vs. DDA Page-40/45
- 41 -
got to know about the existence of a pending suit filed by LR of Smt. Mukandi Bai and existing of a competing Will dated 15.12.1978. It is pertinent to mention that the plaintiff has stealthily avoided mentioning of any date when plaintiff got to know about the same since it was also not pleaded by plaintiff that she has got to know about the same during the pendency of the present trial. Thus, plaintiff has in fact approached this Court with unclean hands.
Thus, it is pertinent to mention that the plaintiff by serving the alleged legal notice upon DDA has merely tried to call out an instance/occasion for creation of any illusion of cause of action to evade the law of limitation. Further, as already discussed herein above that the plaintiff by way of clever drafting has tried to portrait that plaintiff is also entitled to the relief of possession, however, upon a bare reading of the prayer clause of the plaint, it is crystal clear that plaintiff has neither sought the relief of possession from this Court nor has valued the present suit with respect to the relief of possession for the purpose of Court fee and jurisdiction. Thus, in the considered opinion of this Court, the suit of the plaintiff is indeed barred by the law of limitation and accordingly, the defendant side has been able to discharge the onus cast upon them.
In these circumstances, issue no.5 is decided in favour of the defendants and against the plaintiff.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-41/45
- 42 -
23.Issue No. (6)
6). Whether the suit is barred U/s 41(h) of Specific Relief Act? OPD The onus to prove this issue was upon the defendant.
As has already been discussed herein about w.r.t issues no. 1, 2 and 3 that, the suit of the plaintiff is not maintainable and findings w.r.t issues no. 1, 2 and 3 be read as part and parcel of the present issue. Further, since, the suit of the plaintiff is barred under the provisions of Section 34 of the SRA. The present issue loses its relevance in so far as the bar of Section 41(h) of the SRA primarily applies to the equitable relief of injunctions. Nevertheless, relevant findings are being reproduced at the cost of repetition.
That, the plaintiff has instituted the present suit on the strength of Agreement to sell (ATS), General power of attorney (GPA), Will and Receipt dated 19.07.1984 stating them to be the sale documents of the suit property. However, it is pertinent to mention that, the ATS and Will are unregistered documents. Further, ATS has been purportedly executed at Delhi and neither contains the details of the attesting witnesses nor identifies the thumb impression of Smt. Mukandi Bai as 'Left Thumb Impression' or 'Right Thumb Impression'.
Further, a careful reading of ATS materializes that, though plaintiff is portraying it as a concluded sale deed. However, ATS is a mere prelude to a future sale deed in so far as, Suit No.607460/2016 Indira Gupta Vs. DDA Page-42/45
- 43 -
even in spirit it is a mere executory agreement to sell which did not even transfer possession of the suit property upon the plaintiff. ATS further mentions that, "(...) In case the first party backs out from the said transaction then the second party is fully entitled to get the said transaction enforced through Court of law by specific performance of suit at the risk and cost of first party." Thus, it is evidently clear that, the ATS is not a concluded sale deed. Rather, the parties were required to execute further documents and take steps for making it a concluded contract of sale including transfer of possession of the suit property.
It is further noteworthy that, as far as the purported Will in favour of the plaintiff is concerned, same forms part of a series/chain of documents i.e., ATS, GPA, receipt and Will. Further, it is an unregistered document, though not required by law to be mandatorily registered. However, the same has also not be proved by the plaintiff as per the mandate of the law i.e., by summoning and examining an attesting witness to the Will. At this stage, it is pertinent to mention that, the validity and enforceability of the said Will dated 19.07.1984 has been tested and adjudicated by the Ld. ADJ, Central, Delhi in PC No. 425/06 vide order dated 31.07.2014 instituted by the plaintiff herein against the Lrs. of Smt. Mukandi Bai i.e., defendants (exception defendant no. 1/DDA), which was disposed of as dismissed on the grounds of suspicion as to the validity and enforceability of the said Will which the plaintiff was not able to satisfy.
Suit No.607460/2016 Indira Gupta Vs. DDA Page-43/45
- 44 -
Furthermore, perusal of ATS and GPA contemplates that former was got executed at Delhi, while the GPA was got executed at Noida. Further, the same was highly objected to by the defendant side, however, plaintiff was unable to provide any explanation to the same. Furthermore, ATS is an unregistered document and as per the settled tenets of law as enshrined under Section 54 of the Transfer of Property Act, 1882 [hereinafter "the TPA"] and Section 17 of the Registration Act, 1908, sale of an immovable property above the value of Rs.100 can be effected only through a registered sale deed. Further, these purported sale-purchase documents heavily relied upon by the plaintiff, in effect neither has conferred title nor the possession of the suit property in the plaintiff. It is evident from the terms and conditions of these ATS and GPA, the pleadings of the plaintiff and the testimony of the plaintiff/PW-2 that, the plaintiff was never given the possession of the suit property, as such, the plaintiff kept applying for mutation and issue of possession letter to herself by DDA. Thus, the only right the plaintiff had, if any, was to institute a suit for specific performance of the purported ATS, GPA, Will and Receipt, that too within a period of three years from the date of the execution of the ATS and GPA.
Accordingly, the suit of the plaintiff w.r.t the relief of equitable remedy of injunctions is also barred under Section 41(h) of the SRA, since an equally efficacious relief was certainly available and could have been obtained Suit No.607460/2016 Indira Gupta Vs. DDA Page-44/45
- 45 -
by the plaintiff by filing a proper and comprehensive suit for specific performance within three years from 19.07.1984. However, the plaintiff has missed the bus for conduct imputable to the plaintiff alone.
As such, issue no.6 is decided in favour of the defendants and against the plaintiff.
24.Relief:-In view of the findings given on issues no. (1) to (6), pleadings of the parties and evidence led by both the parties, the plaintiff has failed to prove her case on the scale of preponderance of probabilities and further found to be not maintainable as per law. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH 2025.03.29 Date:
17:22:37 +0530 (This judgment contains 45 pages and each (DISHA SINGH) page has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 29.03.2025 Suit No.607460/2016 Indira Gupta Vs. DDA Page-45/45