Delhi District Court
Mukesh Saini vs Sachin Saini on 28 August, 2024
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, DJ02 (SOUTH
EAST), SAKET COURTS, NEW DELHI
Suit bearing number CS No.346/2020
CNR No. DLSE010025332020
Suit for Possession and Recovery of Mesne profits and
Permanent and Mandatory Injunction
Sachin Saini
S/o Late Ram Chander Saini
R/o 195A, Hari Nagar, Ashram,
New Delhi110014
............. Plaintiff
Versus
1. Mukesh Saini
S/o Sh. Bhagwat Singh Saini
R/o 224A, Front Side,
First Floor, Hari Nagar,
Ashram, New Delhi110014
2. Smt. Pushpa Devi
W/o Sh. Bhagwat Singh Saini
R/o 224A, Front Side,
First Floor, Hari Nagar,
Ashram, New Delhi110014
3. Bharat Saini
S/o Sh. Dushyant Saini
R/o 183c/2, Hari Nagar,
CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim)
Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr.
Page 2 of 70
Ashram, New Delhi110014
............ Defendants
CounterClaim bearing number CS No.960/2021
CNR No. DLSE010109942021
CounterClaim for Cancellation of Sale Deed dated 21.02.2020
between Defendant No.1 and 2
1. Mukesh Saini
S/o Late Bhagwat Singh Saini
R/o House No.224A, Hari Nagar,
Ashram, New Delhi110014
2. Smt. Pushpa Devi
W/o Late Bhagwat Singh Saini
R/o House No.224A, Hari Nagar,
Ashram, New Delhi110014
............ CounterClaimants
Vs.
1. Sachin Saini
S/o Late Ram Chander Saini
R/o 195A, Hari Nagar, Ashram,
New Delhi110014
2. Bharat Saini
S/o Sh. Dushyant Saini
R/o 183C/2, Hari Nagar,
Ashram, New Delhi110014
............ Defendants of CounterClaim
CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim)
Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr.
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JUDGMENT
1. Vide this Judgment I shall dispose of the suit bearing CS No.346/2020 and CounterClaim bearing CS No.960/2021. The suit bearing CS No.346/2020 for possession and recovery of mesne profits was filed by the plaintiff against the defendant no.1, 2 & 3 on 22.08.2020. But later on, an application for amendment of plaint was filed for adding relief of injunction and the said application was allowed vide order dated 04.09.2020. Thus, as per the amended plaint, the title of the suit became "Suit for Possession, Recovery of Mesne Profits and Permanent & Mandatory Injunction". The brief facts of the case as narrated in the amended plaint are as follows:
1.1 The Plaintiff and defendants are residents of the same locality. The defendant no.1 is son of defendant no.2. The defendant no.3 i.e. Bharat Saini approached the plaintiff and informed him that he had purchased property bearing old no.224 and new MCD No.224A, Back Side, First Floor, measuring about 85 sq. yds. out of total area measuring 195 sq. yds. consisting of three rooms, two CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 4 of 70
bathrooms and kitchen, situated at Hari Nagar, Ashram, New Delhi110014 (hereinafter referred to as "suit property") from defendant no.1 i.e. Mukesh Saini. 1.2 The defendant no.3 showed the original title documents i.e. registered GPA dated 14.10.2019, Agreement to Sell dated 11.10.2019 and Will dated 18.10.2019. He also showed copy of Relinquishment Deed dated 09.08.2019 in favour of Smt. Pushpa Devi (i.e. defendant no.2), who had executed GPA dated 20.08.2019 in favor of defendant no.1 and Will dated 03.09.2019 in favour of defendant no.1. The Plaintiff was informed by the defendant no.3 that there was mutual settlement in the family on the basis of which the mother i.e. defendant no.2 had partitioned the property amongst her four sons and the defendant no.1 had sold his share in the property to defendant no.3 and the possession of the same was also handed over to defendant no.3.
1.3 The defendant no.3 offered to sell the suit property to plaintiff and the plaintiff agreed to purchase the same. After negotiations, deal was struck for ₹12,50,000/ CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 5 of 70
between plaintiff and defendant no.3 and the defendant no.3, being the attorney of defendant no.1 & 2, executed the Sale Deed dated 21.02.2020 in favor of plaintiff and the same was duly registered in the office of Sub Registrar on 24.02.2020. The sale consideration was paid by plaintiff to defendant no.3 prior to the registration of sale deed and thereafter the defendant no.3 handed over the peaceful possession of the suit property to plaintiff. In one of the rooms of the suit property, there was a tenant, who was informed by the defendant no.3 about the sale of the property and he acceded the request to pay the rent to plaintiff. The plaintiff inducted Nirbhay Madhusudan Thakkar and Abdul Latif as tenants in the other room of the suit property on monthly rent of ₹5,500/ vide Rent Agreement dated 14.05.2020. But the newly inducted tenants got physically unfit and being senior citizens left for their relative's house for their recovery.
1.4 At one point of time, the defendant no.1 was in close relationship with plaintiff, but later on he cheated the plaintiff, due to which the plaintiff was compelled to file a CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 6 of 70
complaint against him U/Sec.138 N.I. Act. The defendant no.1 was having grudge against the plaintiff as there were already litigations pending between them and when he came to know about the purchase of suit property by plaintiff from defendant no.3, he illegally trespassed into the suit property on 21.05.2020 with ill motive to harass, torture and cause loss to the plaintiff. Though, the police complaint was immediately lodged by the plaintiff in P.S. Sunlight Colony but the defendant no.1 & 2 did not handover the possession of the suit property to the plaintiff.
1.5 There was partition wall between suit property and the property of defendant no.1 & 2 and the defendant no.1 & 2 trespassed into the suit property by breaking the partition wall, with ulterior motives and are in unauthorized occupation and use of the suit property. The suit property could easily fetch rent of ₹30,000/ per month and, therefore, defendant no.1 & 2 are liable to pay mesne profits at the rate of ₹30,000/ per month w.e.f. May, 2020 till handing over the possession of the suit property to the plaintiff.
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1.6 A legal notice dated 31.07.2020 was sent by plaintiff through his advocate to defendant no.1 & 2 thereby calling upon them to vacate and handover the peaceful and vacant possession of the suit property to plaintiff within 15 days of receipt of legal notice and in case of failure to do so, to pay ₹30,000/ per month for unauthorized use and occupation of property. But despite service of legal notice, neither property was handed over nor any mesne profit was paid nor any reply to the legal notice was sent by defendant no.1 & 2, rather they openly threatened the plaintiff that they would sell the suit property to some third person. They have been bent upon to sell the suit property to some other person as they are looking for suitable buyer. Hence, the present suit for possession, mesne profits, permanent injunction (for restraining defendants from creating third party interest) and mandatory injunction (for directing the defendant no.1 & 2 to remove their goods/luggage from the suit property and to restore the peaceful possession to the plaintiff) was filed by the plaintiff.
2. Summonses of the suit were issued to defendant no.1, 2 & 3 and CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 8 of 70
after service of summons, the defendant no.1 & 2 put their appearance before the Court and filed joint Written Statement as well as CounterClaim on 18.12.2020. But the defendant no.3 Bharat Saini did not appear despite service of summons and he was proceeded against exparte vide order dated 19.12.2020.
3. The brief facts as narrated in the joint Written Statement of defendant no.1 & 2 are as follows:
3.1 The suit is not property valued by the plaintiff because the value of the suit property as per market rate was more than ₹50,00,000/, whereas he has valued the suit at ₹12,50,000/ and not paid the proper Court Fee on the market value of the property.
3.2 The defendant no.1 had never sold the suit property to defendant no.3, but the plaintiff and defendant no.3, in collusion with each other, have played fraud upon the defendant no.1 & 2.
3.3 The defendant no.1 was in dire need of money and therefore, he requested the defendant no.3 to lend a sum CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 9 of 70
of ₹12,00,000/ as loan and the defendant no.3 asked the defendant no.1 to execute loan agreement. Though the defendant no.1 had agreed to execute loan agreement, but the defendant no.3, by taking advantage of the fact that the defendant no.1 was not having any knowledge of English language, got prepared General Power of Attorney (GPA) of the suit property instead of loan agreement. The said GPA was executed on ₹100/ Stamp Paper only. Had it been a case of salepurchase, the documents would have been executed on payment of proper Stamp Duty. Since, the GPA was executed only on ₹100/ Stamp Paper, so, it is evident that no sale purchase between defendant no.1 and 3 had taken place. The defendant no.3, by playing fraud, got executed Will dated 18.10.2019 and Power of Attorney on 11.10.2019. Had there been any salepurchase regarding suit property, both these documents would have been executed on the same date. But as no salepurchase had taken place between defendant no.1 and defendant no.3, therefore, the aforesaid GPA and Will were not executed on the same date.
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3.4 If the suit property was transferred to plaintiff by defendant no.3 as Attorney, then as per Para 6 of the GPA, the entire consideration amount should have been transferred in the name of defendant no.1 being the owner of the suit property and not in the name of defendant no.3, who was merely Attorney of defendant no.1. The true facts are that the defendant no.3 and plaintiff were in collusion with each other, who wanted to cheat the innocent defendant no.1 and they played fraud upon him and tried to grab the suit property. 3.5 The possession of suit property was never handed over to defendant no.3 and it had always remained with the defendant no.1&2, but the defendant no.3, by playing fraud, got executed possession letter from the defendant no.1 by taking advantage of his not having knowledge of English language.
3.6 The plaintiff has not transferred single penny in the account of defendant no.1. Had the plaintiff purchased the suit property from the Attorney of defendant no.1, then as per Para 6 of the Power of Attorney dated CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 11 of 70
11.10.2019, the entire consideration amount should have been transferred to the defendant no.1. As no amount has been transferred to defendant no.1&2, so it is clear that no salepurchase of the suit property had taken place between defendant no.1 and defendant no.3 and thus, the defendant no.3 had no right to sell the suit property to plaintiff. The defendant no.3 has executed a false sale deed in favor of the plaintiff just to grab the suit property from defendant no.1.
3.7 The defendant no.1 has cancelled the Power of Attorney dated 11.10.2019, Agreement to Sell dated 11.10.2019, Will dated 18.10.2019, Affidavit dated 11.10.2019, Possession Letter dated 11.10.2019 and Receipt dated 11.10.2019 vide Legal Notice dated 02.12.2020.
3.8 The Agreement to Sell is executed on Stamp Paper of ₹50/ and is not maintainable in the eyes of law because neither proper stamp duty is paid nor it is a registered document, whereas as per Sec.54 of Transfer of Property Act no immovable property, which is more than ₹100, can be transferred without registered document. CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 12 of 70
Since, the agreement to sell between defendant no.1 and 3 is not maintainable in the eyes of law, therefore, there was no salepurchase of the suit property between the defendant no.1 and the defendant no.3. The Power of Attorney dated 11.10.2019 is also not executed on proper Stamp Paper by paying proper Stamp Duty and, therefore, the same is also not maintainable in the eyes of law and accordingly, the Sale Deed dated 21.02.2020, executed on the basis of aforesaid Power of Attorney, is also null and void.
4. In Replication, filed to joint Written Statement of defendant no.1&2, the plaintiff denied that there was any collusion between him and defendant no.3 and submitted that the defendant no.3 had approached him and informed that he had purchased the suit property from defendant no.1 and he (defendant no.3) offered to sell the suit property to him and considering it a good investment, he (plaintiff) agreed to purchase the same. He submitted that the plea of defendant no.1 that he had no knowledge of English language was sham and baseless as the GPA was executed before the SubRegistrar, who made it sure that the parties appearing before him were properly CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 13 of 70
aware about the documents executed by them. He also denied that the suit was not properly valued for the purposes of Court Fee and stated that he had valued the suit property at current circle rate of the area and paid the due Court Fee. He also denied the fact that the possession of the suit property was never handed over to him and stated that after taking possession of the suit property, he had even inducted tenant in the same, but in order to grab the suit property unlawfully, the defendant no.1 & 2 trespassed into the suit property, due to which FIR was also got registered against them.
5. As stated above, the defendant no.1 & 2 had filed CounterClaim also on 18.12.2020. The brief facts as narrated in the joint CounterClaim filed by CounterClaimants no.1 & 2 (defendant no.1 & 2 in the main suit bearing CS No.346/2020) are as follows:
5.1 The CounterClaimants are the owner of the property bearing old no.224 and MCD no.224A, Back Side, First Floor, measuring about 85 sq. yards out of total area of 195 sq. yards consisting of three rooms, two bedrooms and kitchen situated at Hari Nagar, Ashram, New Delhi 110014.
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5.2 The CounterClaimant no.1 was in dire need of money and he approached the defendant no.2 i.e. Bharat Saini (defendant no.3 in the original suit bearing CS No.346/2020) for taking loan and Bharat Saini agreed to grant him a loan of ₹12 Lakhs (₹2 Lakhs in cash and ₹10 Lakhs transferred in the account of Counter Claimant no.1) and asked the CounterClaimant no.1 to execute loan agreement and handover the chain of title documents of the aforesaid property as security. Since the CounterClaimant no.1 was in dire need of money, so, he agreed to handover the title documents to Bharat Saini.
5.3 The CounterClaimant no.1 has studied up to 8th class only and he cannot read and write English, though he can sign in English and taking advantage of the fact that he could not read English language, Bharat Saini (defendant no.2 in CounterClaim) got executed GPA, Agreement to Sell, Will, etc. from the CounterClaimant no.1 under the garb of loan agreement. The Counter Claimant no.1 canceled the said documents through Legal Notice dated 02.12.2020.
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5.4 The CounterClaimant no.1 had taken the aforesaid loan of ₹12 Lakhs on interest @ 1% per month from Bharat Saini and paid interest up to December, 2019.
5.5 The defendant no.1 & 2 of CounterClaim i.e. Sachin Saini and Bharat Saini (who are plaintiff and defendant no.3 in main suit bearing CS No.346/2020) were in collusion with each other and they trapped the Counter Claimant No.1 for execution of aforesaid documents, as Sachin Saini transferred huge amount in the account of Bharat Saini, even before execution of the aforesaid documents and the said amount was given by Bharat Saini to CounterClaimant no.1 as loan. Thus, they both laid trap with the ill motive to grab the aforesaid suit property of the CounterClaimants because Bharat Saini executed Sale Deed in favour of Sachin Saini on the basis of aforesaid GPA, Agreement to Sell, etc. which were got executed from CounterClaimant no.1 by playing fraud upon him.
5.6 That the market value of the aforesaid property is more than ₹50 Lakhs and it is not possible that anybody CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 16 of 70
would sell the property for just ₹12 Lakhs and therefore, it is evident that the aforesaid property was never sold by CounterClaimant no.1 to Bharat Saini, rather the said amount of ₹12 Lakhs was given to the CounterClaimant no.1 by Bharat Saini towards loan only.
5.7 That there was one Clause in Para6 of aforesaid Power of Attorney dated 11.10.2019, as per which the earnest money and full consideration amount was required to be paid to the executant of the Power of Attorney i.e. CounterClaimant no.1, but Sachin Saini (in whose favour Sale Deed dated 21.02.2020 was executed by Bharat Saini) never transferred any consideration amount to him and thus the aforesaid Sale Deed is null and void.
5.8 That both the defendants of the CounterClaim had tried many times to take forcible possession of the aforesaid property, but they could not succeed in their ulterior motive and therefore the defendant no.1 Sachin Saini prepared false Rent Agreement with respect to the aforesaid property just to grab it.
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5.9 That the CounterClaimant no.1 had never authorized Bharat Saini to execute Sale Deed in favor of anybody and the Power of Attorney and Agreement to Sell was signed by him under the impression that the said papers were loan agreement because Bharat Saini had told him that the said documents were related to loan agreement. 5.10 That had there been any legal Power of Attorney, the same would have been prepared on the proper Stamp Paper, but the Power of Attorney and Agreement to Sell were executed on ₹100/ Stamp Paper only, which also show that there was no salepurchase between the CounterClaimant no.1 and Bharat Saini. On the basis of said Power of Attorney nobody can be declared owner of the property. As per Sec.54 of Transfer of Property Act, no title can be transferred with respect to immovable property without registered document if the value of property is more than ₹100/ and since the aforesaid Agreement to Sell is not registered document, hence Bharat Saini had not become owner of the aforesaid property and thus he could not have taken consideration amount of the said property in his name and therefore CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 18 of 70
Sale Deed between him and Sachin Saini dated 21.02.2020 is null and void. Hence, CounterClaim is filed for declaring the aforesaid Sale Deed dated 21.02.2020 as null and void and further for restraining the defendant no.1 & 2 of the CounterClaim from creating third party interest in the aforesaid property.
6. The Written Statement to CounterClaim was filed by the defendant no.1 of CounterClaim (who is plaintiff in suit bearing CS DJ No.346/2020) on 24.02.2021, wherein he reiterated the facts already mentioned by him in his Plaint and Replication, filed in main suit.
7. Written Statement to CounterClaim was filed by defendant no.2 of CounterClaim i.e. Bharat Saini (who is defendant no.3 in suit bearing CS DJ No.346/2020) on 24.02.2021, wherein he stated that the CounterClaimant No.1 i.e. Mukesh Saini was his friend and he approached him to sell the suit property to him by stating that he was in urgent need of money as he had suffered huge losses in his business and he (Mukesh Saini) showed him title documents viz. Relinquishment Deed dated 09.08.2019 in favour of Smt. Pushpa Devi (CounterClaimant No.2) who had executed GPA dated CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 19 of 70
20.08.2019 and Will dated 03.09.2019 in favour of her son Mukesh Saini. He further stated that he was informed that there was a mutual settlement in the family on the basis of which Smt. Pushpa Devi had partitioned the property amongst her four sons and the suit property was given to Mukesh Saini and he was owner in possession of the same. He further stated that in order to deceive him, Mukesh Saini ill advised him that there was no need to get registered sale deed executed as it would attract a lot of stamp duty and advised him to get the GPA registered as the same would solve the purpose and accordingly, GPA was executed by Mukesh Saini in his favour which was registered in the Office of SubRegistrarV on 14.10.2019. He further stated that Mukesh Saini also executed registered Will dated 18.10.2019 in his favour apart from Agreement to Sell, Possession Letter and Affidavit on 11.10.2019 in his favour. He further stated that the physical possession of the suit property was thereafter handed over to him and he also got inducted tenants therein and enjoyed the rental income, but thereafter, due to his needs and requirements, he further sold the suit property to Sachin Saini vide Sale Deed dated 24.02.2020. He further stated that he had never agreed to advance CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 20 of 70
loan to Mukesh Saini. He stated that the chain of title documents was handed over to him by Mukesh Saini for execution of sale documents and not for loan agreement. He further stated that the plea taken by Mukesh Saini that he was not having knowledge of English language was sham and baseless as the GPA was executed before the Sub Registrar who made sure that the parties appearing before him were properly aware about the document being executed by them. He further stated that Mukesh Saini could not cancel the GPA after selling the suit property to him. He denied that he had given money to Mukesh Saini as loan on interest @ 1% per month.
8. Vide order dated 22.04.2022, the following issues were framed in the Suit bearing no. CS 346/2020:
1. Whether Plaintiff is entitled to decree of Possession as prayed in clause A? OPP
2. Whether Plaintiff is entitled to decree of Mesne Profits, if yes, at what rate, as prayed in clause B? OPP
3. Whether Plaintiff is entitled to Permanent Injunction as prayed CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 21 of 70
in clause C and E? OPP
4. Whether Plaintiff is entitled to Mandatory Injunction as prayed in clause D? OPP
5. Whether suit has not been properly valued for the purposes of Court Fee? OPP
6. Relief.
9. Vide order dated 22.04.2022, the following issues were framed in the CounterClaim bearing no. CS 960/2021:
1. Whether CounterClaimant is entitled to decree of cancellation of Sale Deed dated 21.02.2020 as prayed? OPCC
2. Whether CounterClaimant is entitled to decree of Permanent Injunction as prayed? OPCC
3. Relief.
10. For the sake of convenience, the parties will be referred hereinafter according to their original status in the suit bearing no.346/2020, meaning thereby that the CounterClaimants will be referred CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 22 of 70
hereinafter as "defendant no.1 & 2", the defendant no.1 of Counter Claim will be referred hereinafter as "plaintiff" and the defendant no.2 of CounterClaim will be referred hereinafter as "defendant no.3".
11. In plaintiff's evidence, the plaintiff has examined five witnesses i.e. himself as PW1, Mahesh Kumar Saini as PW2, Tanuj Kumar Saini as PW3, Bharat Saini (defendant no.3) as PW4 and Manoj Kumar Shah (Jr. Assistant in the Office of SubRegistrar) as PW5. The defendant no.1 & 2 have examined only one witness i.e. the defendant no.1 Mukesh Saini as DW1.
12. I have heard the final arguments from counsel Sh. Karnail Singh for plaintiff and counsel Sh. Manoj Chauhan for defendant no.1 & 2 and perused the record. Before proceeding further to give findings on the aforesaid issues, let us see the evidence led by the parties.
13. The first witness of the plaintiff i.e. PW1 is plaintiff himself. He, in his affidavit of evidence i.e. Ex.PW1/X, has deposed on the similar lines of Plaint. While reiterating the facts mentioned in the Plaint, he, in order to prove his case, has exhibited the following documents:
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(i) Ex.PW1/A(colly) - Copy (original seen and returned) of chain of following title documents:
(a) GPA dated 11.10.2019 (executed by Mukesh Saini in favour of Bharat Saini) registered on 14.10.2019;
(b) Agreement to Sell dated 11.10.2019 (executed by Mukesh Saini in favour of Bharat Saini);
(c) Affidavit dated 11.10.2019 executed by Mukesh Saini;
(d) Will dated 18.10.2019 (executed by Mukesh Saini in favour of Bharat Saini) registered on 18.10.2019;
(e) Possession Letter dated 11.10.2019 executed by Mukesh Saini;
(f) Receipt of ₹12 Lakhs dated 11.10.2019 executed by Mukesh Saini;
(g) Registered GPA dated 19.08.2019 (registered on 20.08.2019), executed by Pushpa Saini (defendant no.2) in favour of Mukesh Saini (defendant no.1);
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(h) Registered Relinquishment Deed dated 09.08.2019 in favour of Pushpa Devi;
(i) Registered Will dated 03.09.2019 executed by Pushpa Devi in favour of Mukesh Saini; and
(j) Registered Relinquishment Deed dated 08.09.2019 in favour of Pushpa Devi.
(ii) Ex.PW1/B - Copy (original seen and returned) of registered Sale Deed dated 21.02.2020 (executed in favour of plaintiff by defendant no.3 Bharat Saini as Attorney of defendant no.1 Mukesh Saini), registered on 24.02.2020.
(iii) Ex.PW1/C - Site plan of suit property.
(iv) Ex.PW1/D(colly) - Copy (original seen and returned) of Rent Agreement dated 14.05.2020 and Format of tenant information to police.
(v) Ex.PW1/E - Copy (original seen and returned) of Police complaint dated 21.05.2020.
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(vi) Ex.PW1/F(colly) - Legal Notice dated 31.07.2020 alongwith postal receipts.
(vii) Ex.PW1/G - The FIR No.263/2020.
14. During the crossexamination of PW1 by counsel for defendant no.1 & 2, he (PW1) deposed that he had not given any notice to defendant no.1 & 2 to inform them about the purchase of the suit property; that he did not know whether defendant no.3 had become owner of the suit property or not after Agreement to Sell dated 11.10.2019; that he did not have any idea whether proper and complete stamp duty was paid on the Agreement to Sell dated 11.10.2019 executed between defendant no.1 & 3. He admitted it as correct that the Agreement to Sell dated 11.10.2019 was for the sale consideration of ₹12,00,000/ (Rupees Twelve Lakhs only) but it was executed on stamp paper of ₹50/ only; that the GPA dated 14.10.2019 was executed on stamp paper of ₹100/ only. However, he denied the suggestion that the Agreement to Sell dated 11.10.2019, GPA dated 14.10.2019 and Will dated 18.10.2019 were not the legal documents as the proper stamp fee was not paid on the CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 26 of 70
said documents. But he admitted it as correct that the Agreement to Sell dated 11.10.2019 was not registered document; that he had not transferred any consideration amount in favour of defendant no.1; that before execution of GPA dated 14.10.2019 by defendant no.1 in favour of defendant no.3, he was the owner of the suit property; that as per Para No.6 of GPA i.e. Ex.PW1/A, the consideration amount of the suit property should have been transferred in the name of defendant no.1, but he had not transferred any consideration amount of the suit property in the name of defendant no.1. However, he denied the suggestion that the possession of the suit property was never handed over to him or to defendant no.3 by the defendant no.1. He denied the suggestion that the Rent Agreement dated 14.05.2020 i.e. Ex.PW1/D was false and fabricated document or that Nirbhay Madhusudan and Abdul Latif had never resided in the suit property as tenants. He deposed that the said tenants had remained in the suit property for about 34 days. He voluntarily stated that the defendant no.1 had trespassed into the suit property within 34 days of inducting them as tenants. However, he deposed that the tenants had not made any complaint against defendant no.1 regarding trespassing. CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 27 of 70
He further deposed that Advocate Suresh Sisodia was residing in the suit property before he purchased the suit property. But he denied the suggestion that Suresh Sisodia was not a tenant under him or that he was the tenant of defendant no.1. He admitted it as correct that no rent agreement was ever executed between him and Suresh Sisodia. He admitted it as correct that the tenant Suresh Sisodia had never made any complaint against defendant no.1 regarding trespassing into suit property. He admitted it as correct that he had not cited Madhusudan, Abdul Latif and Suresh Sisodia as witnesses in this case. He denied the suggestion that the defendant no.1 had never trespassed into the suit property or that the defendant no.1 & 2 are in possession of the suit property as owner. He denied the suggestion that the value of the suit property was about ₹50,00,000/ (Rupees Fifty Lakhs only) in the year 2020. He voluntarily said that the value of the suit property was ₹12,50,000/ (Rupees Twelve Lakhs & Fifty Thousand only) in the year 2020. He deposed that he had taken loan of ₹20,00,000/ (Rupees Twenty Lakhs only) against the suit property in the year 2020. He further deposed that he did not know if the defendant no.1 had cancelled the Power of Attorney, Agreement to CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 28 of 70
Sell, Will, Affidavit, Possession Letter (all in favour of defendant no.3) through Legal Notice dated 02.12.2020. He denied the suggestion that the defendant no.1 had never sold the suit property to defendant no.3. He deposed that he was not having knowledge if the defendant no.1 had taken loan of ₹12,00,000/(Rupees Twelve Lakhs only) from defendant no.3 on interest @ 1% per month or that the defendant no.3 had played fraud upon the defendant no.1 and got executed Power of Attorney, Agreement to Sell, etc. under the garb of loan agreement. He deposed that he was not having any knowledge if the defendant no.1 could read or write English language or that the defendant no.1 had studied upto 8 th class from government school. He denied the suggestion that the sale deed, executed in his favour by defendant no.3, was not as per the terms & conditions of the Power of Attorney in favour of defendant no.3. However, he admitted it as correct that as per Para No.6 of the Power of Attorney dated 14.10.2019, the consideration amount was to be taken in the name of defendant no.1. He further admitted it as correct that he had not transferred any consideration amount directly in the name of defendant no.1. He denied the suggestion that his sale deed was not CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 29 of 70
legal as he had not transferred any consideration amount directly in the name of defendant no.1 as per the terms & conditions of Para No.6 of Power of Attorney dated 14.10.2019 i.e. Ex.PW1/A. He denied the suggestion that he was not the owner of the suit property, but filed the present suit just to grab the suit property or that the defendant no.1 was the owner of the suit property.
15. PW2 Mahesh Kumar Saini in his affidavit of evidence i.e. Ex.PW 2/A deposed that he was the witness to the following documents:
(a) Agreement to Sell dated 11.10.2019, executed by Mukesh Saini in favour of Bharat Saini;
(b) Possession Letter dated 11.10.2019, executed by Mukesh Saini in favour of Bharat Saini;
(c) Receipt of payment dated 11.10.2019, executed by Mukesh Saini against receipt of payment of ₹12,00,000/;
(d) Sale Deed dated 21.02.2020 executed by Bharat Saini in favour of Sachin Saini; and CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 30 of 70
(e) Rent Agreement dated 14.05.2020.
16. During his crossexamination by counsel for defendant no.1 & 2, he (PW2) deposed that he did not know as to where the Agreement to Sell was prepared. He deposed that the said document was not prepared in his presence. He further deposed that he had gone to the Registrar office regarding the alleged title documents in favour of Bharat Saini (defendant no.3) only once, but he was not knowing the time, date, month and year of the said visit. He further deposed that no money transaction had taken place regarding the suit property in his presence. He again said that the money transaction had taken place in his presence. But he deposed that he was not knowing as to on which date the money transaction had taken place. He further deposed that he had gone to the Registrar office at the time of registration of the Sale Deed only; that the Sale Deed was executed in the name of Bharat Saini; that he had signed the Possession Letter as a witness in the Court; that after the execution of Possession Letter, they had gone to the office of the defendant no.1; that he had never visited the suit property; that he was not knowing where the Rent Agreement dated 14.05.2020 was executed; that he was not CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 31 of 70
knowing whether Madhusudan had ever remained in the suit property as tenant; that he was not knowing that the defendant no.1 had not executed the Sale Deed of suit property in favour of defendant no.3 because the defendant no.1 had never sold the suit property to defendant no.3; that he did not know that no proper stamp duty was paid on GPA and Agreement to Sell because the suit property was never sold to defendant no.3; that he was not aware if the rate of the floor of 8085 sq. yds. in the area of Ashram was about ₹7075 Lakh. He deposed that he was not aware if the defendant no.1 had taken a loan of ₹11 Lakhs from defendant no.3 or that the defendant no.1 had studied upto 8th class only or that the defendant no.1 could read, write and understand English language properly or that the GPA, Agreement to Sell, Will, etc. were prepared on different dates. However, he denied the suggestion that the Agreement to Sell, Will, etc. were got fraudulently executed from defendant no.1 under the garb of loan agreement by defendant no.3 Bharat Saini, Tanuj Saini, Sanjay Saini and him (PW2). He deposed that he had not received any summons to give evidence in this case. He deposed that he was called by plaintiff to give evidence in this case. However, he denied CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 32 of 70
the suggestion that he had come to the Court to give false statement just to fulfill the obligation of plaintiff's friendship. He further denied the suggestion that he had never visited the Registrar office in the year 2019. He deposed that he was not having any knowledge if the defendant no.1 was in possession of the suit property or that he was the owner of the suit property.
17. PW3 Tanuj Kumar Saini in his affidavit of evidence i.e. Ex.PW3/A deposed that he was witness to the following documents:
(a) Agreement to Sell dated 11.10.2019, executed by Mukesh Saini in favour of Bharat Saini;
(b) Possession Letter dated 11.10.2019, executed by Mukesh Saini in favour of Bharat Saini;
(c) Receipt of payment dated 11.10.2019, executed by Mukesh Saini against receipt of payment of ₹12,00,000/;
(d) GPA dated 14.10.2019, executed by Mukesh Saini in favour of Bharat Saini;
CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 33 of 70
(e) Will dated 18.10.2019, executed by Mukesh Saini in favour of Bharat Saini.
18. During his crossexamination by counsel for defendant no.1 & 2, the PW3 admitted it as correct that the proper stamp duty was not paid on the GPA; that the Agreement to Sell between defendant no.1 & defendant no.3 was executed on stamp paper of ₹50/ only; and that as per Para No.6 of GPA, the entire consideration amount of suit property would have been taken in the name of defendant no.1 if property sold by Bharat Saini. He deposed that he did not know if the defendant no.1 had not given the possession of the suit property to anybody. He deposed that he had not received any summons to give evidence in this case and that he was called by the plaintiff to give evidence. He denied the suggestion that the defendant no.1 had taken a loan of ₹11 Lakh from defendant no.3, but under the garb of loan agreement, the defendant no.3 got executed GPA, Agreement to Sell, Will, etc. He deposed that he was not knowing if the defendant no.1 was in possession of the suit property or that the defendant no.1 was the owner of the suit property.
CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 34 of 70
19. Though the defendant no.3 Bharat Saini did not contest the suit, but he appeared as plaintiff's witness i.e. as PW4 and deposed in his affidavit of evidence i.e. Ex.PW4/A that in September, 2019, the defendant no.1 had approached him and expressed his willingness to sell the suit property because he was in urgent need of money as he had suffered huge losses in his business and he (defendant no.1) showed him the title documents i.e. copy of Relinquishment Deed dated 09.08.2019 in favour of Smt. Pushpa Devi (defendant no.2), GPA dated 20.08.2019 executed by Smt. Pushpa Devi in favour of defendant no.1, Will dated 03.09.2019 executed by Smt. Pushpa Devi in favour of defendant no.1 and further informed him that there was a mutual settlement in the family, based on which his mother Smt. Pushpa Devi had partitioned the property amongst her four sons and based on the said settlement and aforesaid documents, he (defendant no.1) had become absolute owner of the suit property. The PW4 further deposed that the defendant no.1 ill advised him that there was no need to get executed any sale deed as the same would attract a lot of stamp duty and further advised him to get the GPA registered as the same would serve the purpose and accordingly, he CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 35 of 70
got executed from defendant no.1 GPA (registered) dated 14.10.2019, Agreement to Sell dated 11.10.2019, Will dated 18.10.2019, Possession Letter dated 11.10.2019 and Affidavit dated 11.10.2019. He further deposed that after execution of the aforesaid documents, the defendant no.1 handed over physical possession of the suit property to him and thus, he became the absolute owner of the suit property. He further deposed that at that time one tenant namely Advocate Suresh Sisodia was occupying the backside portion of the suit property, whereas the front side portion of the suit property was lying vacant and after he became the owner of the suit property, tenant Advocate Suresh Sisodia started paying him rent. He further deposed that he sold the suit property to plaintiff vide Sale Deed dated 24.02.2020 for consideration amount of ₹12,50,000/ and also transferred the physical possession of the suit property to plaintiff and also informed the tenant Advocate Suresh Sisodia to pay rent to the plaintiff. He further deposed that the plaintiff inducted tenants namely Nirbhay Madhusudan and Abdul Latif in the front side portion of the suit property vide Rent Agreement dated 14.05.2020.
20. During his crossexamination by counsel for defendant no.1 & 2, the CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 36 of 70
PW4 deposed that though he was one of the defendants in the present case and had received summons from the Court, but he never appeared in the case despite receiving the summons. He admitted it as correct that the documents i.e. GPA, Will, Agreement to Sell, etc. were not executed in a single day and that he had not paid proper stamp duty on GPA and Agreement to Sell. However, he denied the suggestion that he was not the owner of the suit property on the basis of GPA, Agreement to Sell, Will, etc. He admitted it as correct that as per Para No.6 of GPA, he was supposed to take the payment of the earnest money or consideration amount of the suit property in the name of defendant no.1, but he had not taken any money in the name of defendant no.1. He denied the suggestion that the defendant no.1 had taken only loan of ₹11 Lakh, but not sold the suit property to him. Though he admitted it as correct that he had never resided in the suit property, but he denied the suggestion that the defendant no.1 had never handed over the possession of the suit property to him. He denied the suggestion that he had got executed GPA, Agreement to Sell, Will, etc. by playing fraud upon defendant no.1 under the garb of loan agreement. He deposed that he had not CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 37 of 70
received any summons from the Court to give evidence, but denied the suggestion that he had come to give false evidence in favour of plaintiff because the plaintiff was his friend or that he was in collusion with the plaintiff.
21. PW5, Manoj Kumar Shah (Junior Assistant in the office of Sub RegistrarV) deposed that he was the summoned witness and had brought the requisition record i.e. GPA dated 14.10.2019 [already exhibited as Ex.PW1/A(colly)] and Will dated 18.10.2019 [already exhibited as Ex.PW1/A(colly)] and Sale Deed dated 24.02.2020 [already exhibited as Ex.PW1/B]. The copy of the abovesaid documents was placed on judicial record by him and exhibited as Ex.PW5/A (colly). During his crossexamination by the counsel for defendant no.1 & 2, he deposed that he was not having any knowledge that the Sale Deed dated 24.02.2020 was registered on the basis of GPA dated 14.10.2019.
22. The defendant no.1 Mukesh Saini i.e. DW1 in his affidavit of evidence i.e. Ex.DW1/A deposed on similar lines of Written Statement and CounterClaim. While reiterating the facts mentioned CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 38 of 70
in the Written Statement and CounterClaim, he exhibited the following documents:
(i) Ex.DW1/1 - Legal Notice dated 02.12.2020 given to defendant no.3, vide which he cancelled the Power of Attorney dated 11.10.2019, Agreement to Sell dated 11.10.2019, Will dated 18.10.2019, Affidavit dated 11.10.2019, Possession Letter dated 11.10.2019 and Receipt dated 11.10.2019.
(ii) Ex.DW1/2 - The Postal Receipt.
(iii) Ex.DW1/3 - The Courier Receipt.
23. During his crossexamination by the counsel for plaintiff, the DW1 admitted it as correct that the Relinquishment Deed dated 07.08.2019 i.e. Ex.PW1/A was executed by the LRs of Bhagwat Singh in favour of Smt. Pushpa Devi (defendant no.2) and Smt. Pushpa Devi had executed Will and GPA dated 19.08.2019 in his favour in respect of the entire first floor of property bearing old no. 224 and new MCD no.
224A, situated at Hari Nagar, Ashram, New Delhi measuring 195 sq. yards and his mother Smt. Pushpa Devi had not revoked/cancelled CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 39 of 70
the aforesaid GPA dated 19.08.2019. He deposed that he was not aware if he had executed GPA in respect of the suit property. He deposed that some documents were got signed from him by the defendant no.3 under the garb of loan agreement, but he was not aware which document was got signed from him as he does not know English language. He deposed that all the documents i.e. Ex.PW1/A (colly) were got signed from him by defendant no.3 under the garb of loan agreement. He denied the suggestion that he had sold the suit property to defendant no.3 for a sum of ₹12,00,000/. He voluntarily stated that he had taken loan of ₹12,00,000/. However, he admitted it as correct that he had not repaid the said loan amount. He deposed that he came to know about the fraud played upon him by defendant no.3 during covid period and he had lodged a police complaint in this regard, but not filed copy of the same in the present case. He denied the suggestion that on execution of documents Ex.PW1/A (colly), the possession of the suit property was immediately handed over to defendant no.3. He denied the suggestion that at the time of execution of documents and handing over possession, Nirbhay Madhusudan and Abdul Latif were the tenants who were asked by the CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 40 of 70
defendant no.3 to handover the rent to plaintiff. He denied the suggestion that he had illegally occupied the suit property on 21.05.2020. However, he admitted it as correct that the FIR Ex.PW 1/G was registered on the complaint of the plaintiff. But he voluntarily stated that the plaintiff had got registered the false and fabricated FIR against him.
24. My findings on the issues framed in suit number CS No.346/2020 are as under:
ISSUE NO.1 Whether Plaintiff is entitled to decree of Possession as prayed in clause A?
25. The onus to prove this issue was upon the plaintiff. For discharging said onus, he has examined five witnesses including himself. The plaintiff has prayed for passing decree of possession in his favour and against the defendant no.1 & 2, thereby directing them to handover peaceful and vacant possession of the suit property to him. The counsel for plaintiff has argued that the plaintiff had acquired CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 41 of 70
ownership of the suit property vide registered Sale Deed dated 21.02.2020 (registered on 24.02.2020) and the possession of the suit property was also handed over to him, but the defendant no.1 & 2 illegally dispossessed him on 21.05.2020 and therefore, present suit is filed with the prayer to pass decree of possession in his favour and against the defendant no.1 & 2. He has further argued that the plaintiff has duly proved his ownership over the suit property vide registered Sale Deed dated 21.02.2020 (registered on 24.02.2020) i.e. Ex.PW 1/B.
26. The case of the plaintiff is that the defendant no.1 had sold the suit property to defendant no.3 vide GPA dated 11.10.2019 (registered on 14.10.2019), Agreement to Sell dated 11.10.2019, Will dated 18.10.2019, Possession Letter dated 11.10.2019, Affidavit dated 11.10.2019 and Receipt dated 11.10.2019 and the defendant no.3 had further sold the suit property to plaintiff vide registered Sale Deed dated 24.02.2020. But the case of the defendant no.1 & 2 is that the defendant no.1 had taken only loan of ₹12,00,000/ (Rupees Twelve Lakhs only) from defendant no.3 Bharat Saini, but in the garb of CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 42 of 70
getting loan documents executed, the defendant no.3, by taking advantage of the fact that the defendant no.1 was not conversant with English language, got executed GPA, Agreement to Sell, Will, etc. from him. But the counsel for plaintiff has vehemently argued that the aforesaid GPA is a registered document and therefore, the defendant no.1 cannot take the plea that he was not aware about the contents of the same as the same was duly registered by the SubRegistrar after due verification. I find force in his contention because it is settled law that there is presumption regarding the validity of execution of registered document.
27. The counsel for defendant no.1 & 2 has argued that no title has got transferred to defendant no.3 on the basis of aforesaid GPA, etc. as the said documents were cancelled by the defendant no.1 vide Legal Notice dated 02.12.2020. But the counsel for plaintiff, while relying upon judgment of Hon'ble Supreme Court titled as Amar Nath Vs. Gyan Chand & Anr., Civil Appeal No. 5797 of 2009, D.O.D. 28.01.2022, has vehemently argued that the said cancellation is not valid because neither it has been cancelled through registered CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 43 of 70
document nor the agency could be terminated by the principal to the prejudice of the agent's interest unless there is express contract, where the agent has himself an interest in the property which forms the subject of the agency (Sec.202 of Indian Contract Act). He has further argued that even if it is presumed to be valid cancellation, yet the same would not bind the plaintiff because the said cancellation notice was given by the defendant no.1 & 2 to the defendant no.3 only and not to the plaintiff. I find force in his contention because it has been held by Hon'ble Supreme Court in Amar Nath Vs. Gyan Chand's case (supra) that the termination of Power of Attorney does not affect third party without notice because as per Sec.208 of Contract Act, 1872, the termination of the authority of an agent does not take effect against the agent before it comes to his knowledge and it does not take effect with respect to third person till the same comes to his knowledge. The Hon'ble Supreme Court, while taking notice of the view from Pollock and Mulla, the Indian Contract & Specific Relief Act has held as follows:
"Termination not to affect third parties without notice. CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 44 of 70
Termination becomes effective only when it comes to the knowledge of the affected party. Even if the agent is aware of the revocation, it does not affect the third parties who in good faith enter into contract with the agent and in ignorance of the revocation; they are protected; such provision is in interest of commerce:
where the principal has terminated the agency, or the agency has been terminated by happening of events, the principal continues to be bound by the agent's act under the doctrine of apparent authority, until the third parties have notice of the termination."
28. Since in the present case, it the admitted case of defendant no.1 & 2 that no notice of termination of GPA dated 14.10.2019 was ever given to plaintiff Sachin Saini, so, the said cancellation does not bind the plaintiff herein.
29. But now the question arises that whether the plaintiff had actually acquired any valid and legal title over the suit property vide Sale Deed dated 24.02.2020? The counsel for defendant no.1 & 2 has vehemently argued that the plaintiff has not acquired any right or title CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 45 of 70
over the suit property as he had allegedly purchased the suit property from defendant no.3 who had never become the owner of suit property because he had been claiming ownership on the basis of GPA, Agreement to Sell, etc. but the Hon'ble Supreme Court has already held in Suraj Lamp's Case (infra) that no ownership over immovable property can be conveyed on the basis of GPA, etc.
30. It is settled law that no one can transfer a better title than his own. In Ratendra Kumar Vs. Karya Nirikshak, Hathras Junction, 2018(6) All. LJ 386 the Hon'ble High Court held that no one can transfer a better title than he himself has and the buyer must be vigilant at the time of purchasing property and must inquire properly about the title of the seller. In the said case, the disputed land was belonging to government (railways), but it was sold to the plaintiffappellant by one Shyama Devi vide registered Sale Deed dated 23.12.1983 for consideration amount of ₹20,000/. It was held by the Hon'ble High Court as follows:
"15. The famous legal maxim 'Caveat Emptor' must be kept in mind which means "Buyer beware". The CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 46 of 70
plaintiffappellant was required to be vigilant and to properly inquire as to whether Smt. Shyama Devi, from whom he was purchasing the land, was the legal owner having the right to sell the land, but he failed to do so. Even the witnesses produced by the plaintiffappellant have failed to lead any evidence to show that the disputed land belonged to Smt. Shyama Devi.
16. A suit in respect of the same land was earlier decided in favour of the Railways, which fact is not disputed by the plaintiffappellant. Thus in absence of a legally valid title, Shyama Devi was not authorised to transfer the disputed land in favour of the appellant.
17. The famous legal maxim "nemo dat quod non habet" meaning thereby that no one can transfer a better title than he himself has, should also be kept in mind, which is fully applicable to the facts of the present case."
31. In the present case, the plaintiff's stand is that he had purchased the CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 47 of 70
suit property from defendant no.3. But the question arises that whether the defendant no.3 was the actual and absolute owner of the suit property? As per the case of the plaintiff, the defendant no.2 (Smt. Pushpa Devi) was the owner of the suit property who executed GPA dated 19.08.2019 and Will dated 03.09.2019 in favour of her son i.e. defendant no.1 and the defendant no.3 purchased the suit property from defendant no.1 vide GPA, Agreement to Sell, Will, etc. i.e. Ex.PW 1/A (colly.). It is the case of both the parties i.e. of the plaintiff and the defendants that the defendant no.2 was the owner of suit property vide registered Relinquishment Deeds dated 09.08.2019 and 03.09.2019. Thus, it was not the defendant no.1 who was the owner of the suit property, rather it was the defendant no.2 who was the actual owner of the suit property. The defendant no.2 had merely executed Power of Attorney dated 19.08.2019 in favour of defendant no.1 with respect to suit property. She had not executed any conveyance deed in favour of defendant no.1 and therefore, the defendant no.1 had not become owner of the suit property. Thus, as per the maxim "nemo dat quod non habet", the defendant no.1 could not have transferred better title than he himself had. The plaintiff in the present case is drawing title to CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 48 of 70
suit property through defendant no.3 (as he has stated that he had purchased the suit property from defendant no.3 vide Sale Deed dated 24.02.2020) and the defendant no.3 is claiming ownership over suit property through defendant no.1 by stating that the defendant no.1 had sold suit property to him vide GPA, Agreement to Sell, Will, etc. i.e. Ex.PW1/A(colly). But since the defendant no.1 was not the owner of the suit property (as he was mere attorney of owner i.e. defendant no.2), so, as per the maxim "nemo dat quod non habet", he could not have transferred better title to defendant no.3 than his own. As he was not the owner, so, obviously he had not conveyed the title of ownership to defendant no.3. Now, if we presume for the sake of arguments the plea of the plaintiff to be correct that the defendant no.1 had sold the suit property to defendant no.3 in the capacity of Attorney of the owner i.e. defendant no.2, even then the end result would be the same due to the following reasons:
(i) Firstly, if the suit property was sold by defendant no.1 (being Attorney of defendant no.2) to defendant no.3, then as per Clause/Para 6 of GPA dated 19.08.2019 (executed by CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 49 of 70
defendant no.2 in favour of defendant no.1), the consideration amount was required to be paid to the defendant no.2. But it is the admitted case of the parties that the amount of ₹12 Lakhs (which the plaintiff and defendant no.3 claim to be consideration amount) was given by defendant no.3 to the defendant no.1 and not to defendant no.2. Had it been sale of suit property, the consideration amount would have been given to defendant no.2 and not to defendant no.1.
(ii) Secondly, it is settled law that no title could be conveyed by way of GPA, Agreement to Sell, etc. The Transfer of Property Act, 1882 has specifically laid down the law regarding acquiring of title of an immovable property. As per Transfer of Property Act 1882, absolute title of immovable property could be conveyed either by way of sale or gift or exchange. It is settled law that immovable property of value ₹100/ or more could be transferred only by way of a written registered instrument. As per Sec.54 of Transfer of Property Act, 1882, the sale of a tangible immovable property of the value of ₹100/ and upwards can be made only by a registered instrument. No title CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 50 of 70
could be conveyed by way of GPA, Agreement to Sell, etc. It was held by Hon'ble High Court of Delhi in case titled as G. Ram Vs. Delhi Development Authority, AIR 2003 Delhi 120 that the title of immovable property can be transferred only by registered document as provided under Sec.54 of Transfer of Property Act and not by any agreement to sell or power of attorney. Even the Hon'ble Supreme Court in its judgment titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., AIR 2012 SC 206 has held as follows:
"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.
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 CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 51 of 70
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."
32. Thus, it is clear that no right, title or interest in an immoveable property can be transferred without any duly registered written Conveyance Deed/Sale Deed. Transfer of immovable property could be carried out only by way of written registered sale deed and not by way of any written agreement to sell or power of attorney. Since, no Sale Deed was executed by defendant no.1 (being Attorney of defendant no.2) in favour of defendant no.3, therefore, no title of suit property has got transferred to the defendant no.3 vide GPA dated 11.10.2019, Agreement to Sell dated 11.10.2019, Affidavit dated 11.10.2019, Will dated 18.10.2019, Possession Letter dated 11.10.2019 and Receipt dated 11.10.2019 etc. i.e. Ex.PW1/A(colly). CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 52 of 70
Since, the defendant no.3 had not acquired the title of ownership of suit property, therefore, he could also not have conveyed better title than his own to the plaintiff. The plaintiff was bound to be vigilant and make proper enquiry about the title of defendant no.3 at the time of purchasing suit property from him and if he has failed to do so, then he has to bear the consequences of the same. Since, the defendant no.3 was not the owner of the suit property when he executed Sale Deed dated 24.02.2020 in favour of plaintiff, therefore, the said sale deed is nonest in the eyes of law.
33. The counsel for plaintiff has argued that the defendant no.1 had executed registered GPA dated 11.10.2019 in favour of defendant no.3 against payment of consideration amount of ₹12 Lakhs and thus, the said GPA had become irrevocable; and due title had passed to defendant no.3 vide said irrevocable GPA. But I do not find any merit in his contention as it has been categorically held by Hon'ble Supreme Court in Suraj Lamp's case (supra) that even an irrevocable attorney cannot transfer title to the grantee. The relevant portion of judgment of Suraj Lamp's case in this regard is reproduced hereinbelow:
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"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
(underlining added)
34. The next contention of counsel for plaintiff is that even as per the case of Suraj Lamp (supra), all the GPA sales are not invalid and if the attorney holder executes registered Sale Deed in favour of third person, then that third person becomes owner of the property and since in the present case, the defendant no.3 had executed the Sale Deed (registered) in favour of plaintiff, so, the plaintiff has become owner of the suit property. So far as the first limb of his contention is CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 54 of 70
concerned, it is correct that if the attorney holder (of owner of property) executes registered Sale Deed in favour of third person, then that third person becomes owner of the property, but the second limb of his contention [i.e. the defendant no.3 had executed the Sale Deed (registered) in favour of plaintiff, so, the plaintiff has become owner of the suit property] is meritless because in the case of Suraj Lamp (supra) what the Hon'ble Supreme Court has held is that the actual owner of immovable property can execute a power of attorney in favour of his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance and that family member can execute, on behalf of principal (actual owner), a sale deed/conveyance deed in favour of a third person. But in the present case, as it is the admitted case of both the parties that the defendant no.2 was the actual owner of the suit property, so, it was only her attorney (who is defendant no.1 in this case) who could have executed sale deed on her behalf. But admittedly, the defendant no.1 had not executed any sale deed in favour of defendant no.3 (as he had executed only GPA, etc. in favour of defendant no.3). Thus, no title has got conveyed to defendant no.3 over the suit property on the CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 55 of 70
basis of GPA, Agreement to Sell, etc. [Reliance is placed on Suraj Lamp case (supra)]. And since the defendant no.3 has not got any title over the suit property, so, he could not have conveyed any title to the plaintiff also, even if he had executed any registered sale deed in his (plaintiff's) favour.
35. Regarding the possession over suit property, the counsel for plaintiff has argued that the possession of the suit property was handed over to plaintiff by defendant no.3 after executing the Sale Deed dated 21.02.2020 and the plaintiff inducted tenants in the suit property, but the defendant no.1 & 2 trespassed into the suit property on 21.05.2020 and dispossessed the tenants inducted by the plaintiff. But the counsel for defendant no.1 & 2 has vehemently argued that neither the plaintiff was ever in possession of the suit property nor he had inducted any tenant in the same. He has further argued that the possession of the suit property has always remained with the defendant no.1 & 2 and it was never handed over to defendant no.3, what to talk of plaintiff!
36. The case of the plaintiff is that after selling suit property to defendant CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 56 of 70
no.3 vide GPA, Agreement to Sell, Will, etc., the possession of the suit property was handed over by defendant no.1 to defendant no.3 vide Possession Letter dated 11.10.2019. For proving the said possession letter, the plaintiff has examined PW2 Mahesh Kumar Saini and PW3 Tanuj Kumar Saini, purportedly witnesses of the Possession Letter dated 11.10.2019. But when PW2 was cross examined by counsel for defendant no.1 & 2, he deposed that he had never visited the suit property nor he was remembering as to on which floor the suit property was situated. As per the aforesaid possession letter, the possession of the suit property was handed over to defendant no.3 by defendant no.1 on 11.10.2019 in the presence of witnesses Mahesh Kumar Saini (PW2) and Tanuj Kumar Saini (PW3). But if the PW2 had never visited the suit property (as deposed by him in his crossexamination) then it becomes doubtful that the possession of the suit property was handed over to defendant no.3 by defendant no.1 in the presence of PW2 on 11.10.2019. So far as the second witness of the aforesaid possession letter is concerned, he (i.e. PW3) has deposed during his crossexamination that he was not having any knowledge if the defendant no.1 had not CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 57 of 70
given the possession of the suit property to anybody. Thus, the plaintiff has failed to prove the Possession Letter dated 11.10.2019 as well as the fact that the possession of the suit property was handed over to defendant no.3 by defendant no.1.
37. So far as the contention of the counsel for plaintiff regarding the possession of the plaintiff over the suit property is concerned, the plaintiff has failed to cite/examine any of the alleged tenants to prove that he (plaintiff) had inducted the tenants in the suit property. His case is that one tenant namely Suresh Sisodia was already in possession of a part of the suit property when he purchased the property from defendant no.3 and in the other part of the suit property, he inducted two more tenants namely Madhusudan and Abdul Latif as his tenants and the earlier tenant Suresh Sisodia had also acknowledged the plaintiff as owner of the suit property and started paying him rent. But he has failed to summon Suresh Sisodia as witness to prove the aforesaid fact. Nor he has filed any document viz. rent receipt, etc. issued to Suresh Sisodia against any payment of rent to him. Further his case is that he had inducted Madhusudan and Abdul Latif as tenants after purchasing the suit property who were CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 58 of 70
dispossessed by the defendant no.1 & 2. But he has not cited any of them also as witness. He has admitted in his crossexamination that no complaint was filed by the said tenants against defendant no.1 & 2 regarding their dispossession from the suit property. Had they been residing in the suit property as tenants and dispossessed illegally by defendant no.1 & 2, then they must have filed some complaint against them. But nonfiling of any such complaint raises suspicion about their being in possession of suit property as tenants.
38. Though the counsel for plaintiff has vehemently argued that the aforesaid two tenants were inducted in the suit property vide Rent Agreement dated 14.05.2020 and thereafter, police verification was also got conducted by the plaintiff, but it is pertinent to mention here that the document annexed with the rent agreement is only copy of format of information of the tenant, given to the police. The plaintiff has failed to duly prove any police verification of the said tenants. Moreover, the said verification form is pertaining to only one person namely Abdul Latif. Though the PW2 is examined by plaintiff to prove Rent Agreement dated 14.05.2020 by stating that PW2 was witness to execution of said Rent Agreement but during his cross CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 59 of 70
examination, the PW2 deposed that he was not knowing as to where the said Rent Agreement was executed. Thus, the same raises doubt about the authenticity of aforesaid rent agreement. The fact of aforesaid persons being in possession of the suit property as tenants of plaintiff and their dispossession from the suit property by defendant no.1 & 2, could have been proved by bringing them to the witness box. But the plaintiff has utterly failed to bring them to the witness box. Admittedly, there is no complaint filed by them against defendant no.1 & 2 for their alleged dispossession from the suit property. It is also pertinent to mention here that on the one hand, the plaintiff is alleging that after getting possession of the suit property on execution of Sale Deed 24.02.2020 from defendant no.3, he inducted tenants namely Nirbhay Madhusudan and Abdul Latif on 14.05.2020 in the front portion of the suit property, but during the crossexamination of DW1/defendant no.1, suggestion was given to him by the counsel for plaintiff that Nirbhay Madhusudan and Abdul Latif were already tenants in the suit property at the time of execution of documents and handing over the possession by defendant no.3 to plaintiff and the defendant no.3 had asked them to handover the rent to the plaintiff. CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 60 of 70
Thus, the plea of the plaintiff is selfcontradictory and selfdestructive. Hence, from the aforesaid analysis, it is held that the plaintiff has failed to prove that the possession of the suit property was handed over to him or that he had inducted tenants in the suit property or that he was ever in possession of the suit property.
39. Last but not the least, the counsel for defendant no.1 & 2 has argued that the suit of plaintiff is not legally maintainable also as he has filed suit for possession without seeking the relief of declaration for declaring him owner of suit property. While placing reliance upon the caselaw titled as Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs, AIR 2008 SC 2033, he has argued that the defendant no.1 & 2 had categorically stated in their Written Statement that the plaintiff was not the owner of suit property and it was the defendant no.1&2 who were the actual owner and thus, a cloud was created over the title of plaintiff, but he never bothered to amend his plaint to seek declaration of his ownership over the suit property and therefore, his suit is not legally maintainable. In the case of Anathula Sudhakar (supra), the Hon'ble Supreme Court has held as follows:
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"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
(underlining added) It has been further held by the Hon'ble Apex Court in the aforesaid case as follows:
"Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 62 of 70
need for the plaintiff, to amend the plaint and convert the suit into one for declaration."
(underlining added)
40. In the present case, the defendant no.1 & 2 specifically mentioned in their Written Statement that the plaintiff was not the owner of the suit property, rather they were the owners of the same. Thus, they had duly created cloud over the title of the plaintiff and as per the caselaw of Anathula Sudhakar (supra), the plaintiff was required to amend his plaint and seek the relief of declaration of ownership. But he failed to do so. Thus, his case in the present form is not legally maintainable.
41. Hence, in view of the aforesaid analysis and discussion, it is held that the plaintiff has not become the owner of the suit property vide Sale Deed dated 24.02.2020 and therefore, he is not entitled to get the possession of suit property from defendant no.1 & 2. Accordingly, this issue is decided in favour of the defendant no.1 & 2 and against the plaintiff.
CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 63 of 70
ISSUE NO.2 Whether Plaintiff is entitled to decree of Mesne Profits, if yes, at what rate, as prayed in clause B?
42. The plaintiff has sought the relief of directing the defendants to pay him the mesne profits @ ₹30,000/ per month. Mesne profits are the profits of an estate received by a person in wrongful possession of such property and the actual owner can sue the said person for recovery of such mesne profits. But it is already held above that the plaintiff is not the owner of the suit property. Therefore, he is not entitled to claim any mesne profits from the defendant no.1 & 2. Hence, this issue is also decided in favour of defendant no.1 & 2 and against the plaintiff.
ISSUE NO.3 Whether Plaintiff is entitled to Permanent Injunction as prayed in clause C and E?
43. The plaintiff has sought decree of permanent injunction for restraining CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 64 of 70
the defendants from creating any thirdparty interest in the suit property. But since the plaintiff is not owner of the suit property, therefore, he is not entitled to seek such relief of permanent injunction against defendant no.1 & 2. Hence, this issue is also decided in favour of defendant no.1 & 2 and against the plaintiff. ISSUE NO.4 Whether Plaintiff is entitled to Mandatory Injunction as prayed in clause D?
44. The plaintiff has sought decree of mandatory injunction for directing the defendant no.1 & 2 to remove their goods/luggage from the suit property and to restore the peaceful possession in favour of plaintiff. But since the plaintiff is not owner of the suit property, therefore, he is not entitled to seek such relief of mandatory injunction against defendant no.1 & 2. Hence, this issue is also decided in favour of defendant no.1 & 2 and against the plaintiff.
ISSUE NO.5 CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 65 of 70
Whether suit has not been properly valued for the purposes of Court Fee?
45. The plaintiff has valued his suit at ₹12,80,000/ (Rupees Twelve Lakhs and Eighty Thousand only) by stating that the value of suit property as per circle rates is ₹12.5 Lakhs. But the objection was taken by defendant no.1 & 2 in their Written Statement regarding suit valuation by stating that the value of the suit property was more than ₹50 Lakhs. Therefore, the aforesaid issue interalia was framed by my Ld. Predecessor. But it appears that due to typographical error, the onus was mentioned as "OPP" against the said issue. However, the counsel for defendant no.1 & 2 has fairly admitted during the final arguments that the onus to prove this issue should have been on defendant no.1 & 2 and "OPP" is result of sheer typographical error. Hence, it is clarified/rectified that the onus to prove this issue was upon the defendant no.1 & 2.
46. Though the defendant no.1 & 2 have stated in their Written Statement that the value of the suit property was more than ₹50 Lakhs but they have failed to prove the said averment. The counsel for defendant CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 66 of 70
no.1 & 2 has submitted that the defendants have not led any evidence in this regard because the said fact has been duly established on the following two grounds: (i) that the plaintiff/PW1 has admitted during his crossexamination that he had taken a loan of ₹20 Lakhs against the suit property in the year 2020, which means that the value of the suit property was more than the alleged value of ₹12.5 Lakhs; and (ii) that the PW2 has not denied during his crossexamination that the rate of floor of 8085 sq. yds. in the Ashram Area was about ₹7075 Lakhs. But I do not find any substance in the said contention because the PW2 has merely stated that he did not know if the rate of the floor of 8085 sq. yds. in the Ashram Area was about ₹7075 Lakhs. Neither he is the plaintiff of this case nor has been examined as any property valuer. He had stepped into witnessbox merely as attesting witness of certain documents viz. Agreement to Sell, Possession Letter, etc. He has not even admitted that the rate is of ₹7075 Lakhs. The plaintiff has categorically stated in his Plaint and cross examination that the value of the suit property was ₹12.5 Lakhs in the year 2020. Since this issue was framed on the basis of averments made by defendant no.1 & 2 in their Written Statement that the value CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 67 of 70
of suit property was more than ₹50 Lakhs, therefore, the onus to prove this issue was upon them and they were required to lead cogent evidence to prove this issue. Merely because the plaintiff had taken a loan of ₹20 Lakhs against the suit property, does not absolve the defendants from their liability to lead coherent and cogent evidence to prove that the value of the suit property was more than ₹50 Lakhs as alleged by them. But since, they have failed to lead any evidence on this point and thus failed to prove that the suit has not been properly valued for the purpose of Court Fee, therefore, this issue is decided in favour of the plaintiff and against the defendant no.1 & 2.
47. My findings on the issues framed in CounterClaim bearing number CS No.960/2021 are as under:
ISSUE NO.1 of CounterClaim Whether CounterClaimant is entitled to decree of cancellation of Sale Deed dated 21.02.2020 as prayed?
48. The CounterClaimants i.e. defendant no.1 & 2 have sought the decree of declaration for declaring the Sale Deed dated 21.02.2020 CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 68 of 70
(registered on 24.02.2020), executed between plaintiff and defendant no.3, as null and void. It is already held that since the defendant no.3 had not acquired any ownership over the suit property, therefore, he could not have transferred/conveyed any title to plaintiff even if he had executed Sale Deed dated 21.02.2020 in favour of plaintiff with respect to the suit property and the said sale deed is nonest in the eyes of law. Hence, the said Sale Deed is required to be declared null and void. Accordingly, this issue is also decided in favour of defendant no.1 & 2 and against the plaintiff.
ISSUE NO.2 of CounterClaim Whether CounterClaimant is entitled to decree of Permanent Injunction as prayed?
49. The CounterClaimants i.e. defendant no.1 & 2 have also sought the decree of permanent injunction for restraining the plaintiff and defendant no.3 from creating any thirdparty interest in the suit property. Since neither the plaintiff nor the defendant no.3 is the owner of the suit property, therefore, they cannot create any third CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 69 of 70
party interest in the suit property and hence, the defendant no.1 & 2 are entitled to the aforesaid relief. Accordingly, this issue is also decided in favour of defendant no.1 & 2 and against the plaintiff. Relief:
50. In view of the aforesaid analysis and discussion, the suit of the plaintiff bearing number CS 346/2020 is dismissed and the CounterClaim filed by defendant no.1 & 2 bearing number CS 960/2021 is decreed as follows:
(i) Decree of declaration is passed in favour of the defendant no.1 & 2 (CounterClaimants) and against the plaintiff and defendant no.3 (both defendants of CounterClaim) and the Sale Deed dated 21.02.2020 (registered on 24.02.2020), executed between plaintiff and defendant no.3, i.e. Ex.PW1/B is declared null and void; and
(ii) Decree of permanent injunction is passed in favour of the defendant no.1 & 2 (CounterClaimants) and against the plaintiff and defendant no.3 (both defendants of CounterClaim) CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr. Page 70 of 70
and the plaintiff Sachin Saini and defendant no.3 Bharat Saini as well as their agents and associates are restrained from creating any thirdparty interest in the suit property bearing old no.224 and new MCD No.224A, Back Side, First Floor, measuring about 85 sq. yds. out of total area measuring 195 sq. yds. consisting of three rooms, two bathrooms and kitchen, situated at Hari Nagar, Ashram, New Delhi110014 as shown in site plan Ex.PW1/C. The intimation regarding aforesaid declaration be sent to concerned SubRegistrar.
51. Decreesheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
(Announced in open Court on 28.08.2024) (Navita Kumari Bagha) DJ02, SouthEast District, Saket Courts, New Delhi CS No.346/2020 (Main Suit) CS No.960/2021 (CounterClaim) Sachin Saini Vs. Mukesh Saini & Ors. Mukesh Saini & Anr. Vs. Sachin Saini & Anr.