Delhi District Court
Sh Brij Kumar vs Mrs. Payal on 26 April, 2023
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDITIONAL DISTRICT JUDGE-08,
TIS HAZARI COURTS (WEST), DELHI
CS No. 473/2022
In the matter of :
1. SH BRIJ KUMAR
S/o Sh. Sehdev Shah,
R/o House No.710, Gali No.13,
Nehru Nagar, New Delhi-110008.
2. MR. UPENDER SHAH @ VICKY MASALE WALA
S/o Sh. Mahesh Shah,
R/o C-104, Kanti Nagar,
Delhi-110051. .....Plaintiffs
Versus
MRS. PAYAL
W/o Mr. Mahesh,
R/o D-1, 491-492, Sultan Puri,
B-Block, Delhi-110086.
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Also At
B-259, Gali No.7-8,
Nehru Nagar, New Delhi-110008. ...... Defendant
(SUIT FOR RESTORATION OF POSSESSION UNDER
SECTION-6 OF THE SPECIFIC RELIEF ACT)
Date of institution of suit : 26.05.2022
Date on which judgment reserved : 15.04.2023
Date on which judgment pronounced : 26.04.2023
JUDGMENT
1. This is a suit for restoration of possession under Section 6 of the Specific Relief Act filed by plaintiffs against the defendant.
2. The brief facts as per plaint are that the plaintiffs are the joint owners and the landlords of the built-up property bearing no. B-259, situated in the Abadi of Gali No.7-8, Nehru Nagar, New Delhi-110008 area measuring 80 sq. yds approx. (Ground Floor to Third Floor) excluding one shop on Ground Floor and the present suit is signed / filed by plaintiff no.1, who is also a GPA Holder of plaintiff no.2 vide GPA dated 30.03.2021.
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3. It is further averred that plaintiffs are poor persons and had gathered Rs.36,00,000/- as their life-savings which is duped by the defendant as in the first week of April, 2019, the plaintiffs approached Sh. Arun R/o House No.666, Nehru Nagar, Sabji Mandi, Anand Parbat, Delhi-110008, a local property dealer in their locality who represented that defendant is also searching a purchaser and after negotiation, the sale consideration of suit property was finalized at Rs. 36,00,000/-.
4. It is averred that Agreement to sell and purchase was executed on 10.09.2019 and plaintiff paid Rs. 2 lacs to the defendant and subsequently paid the balance in consideration on different dates. However, the defendant and one counsel informed the plaintiffs that as of now registration of title documents were not been done in Delhi and took signature of plaintiffs on some printed and blank papers on the pretext that same were required for purpose of execution of registered title documents. The plaintiffs claimed that the they have received the actual physical possession and upon enquiry with someone they requested the defendant to execute the sale documents but she refused. The plaintiffs also claimed that due to Covid pandemic plaintiffs did not get any employment in Delhi and they were Brij Kumar and Anr. Vs. Payal Page: 3/8 compelled to return back to their hometown and when they came back on 01.06.2021 they found that defendant had broke open the lock of the premises on 30.05.2021 and illegally taken possession of the same.
5. Summons for settlement of issues were issued to the defendant, which was served on 23.09.2022. On 20.10.2022, defendant appeared alongwith her counsel and filed vakalatnama. However, thereafter, defendant stopped appearing and vide order dated 07.01.2023, her defence was struck off and she was proceeded ex-parte.
6. In support of his claim, the plaintiff no. 1 has examined himself as PW-1 by way of affidavit Ex.PW-1/X wherein he reiterated the averments of his plaint and relied upon documents i.e. Ex.PW-1/1 is the GPA dated 30.03.2021, the title and possession documents dated 10.09.2019 as Ex.PW-1/2, copy of the Agreement to Sell and Purchase dated 10.04.2019 as Ex.PW-1/3, copy of the payment receipts as Ex.PW-1/4, the MCD property tax payment receipt is Ex.PW-1/5, the photographs as Ex.PW-1/6, the certificate under Section 65-B of the Indian Evidence Act as Ex.PW-1/7 and the site plan of the suit property as Ex.PW-1/8.
7. No other witness was examined and therefore, Brij Kumar and Anr. Vs. Payal Page: 4/8 ex-parte plaintiff evidence was closed. The ex-parte final arguments advanced by Ld. Counsel for the plaintiff. I have also perused the material available on record.
8. Ld. counsel for plaintiffs argued that in view of the documents relied upon by the plaintiffs, their case is proved beyond reasonable doubt and therefore, suit should be decreed and possession be restored to the plaintiffs.
9. It is noted that the present suit is filed under Section 6 of Specific Relief Act which provides that in case of dispossession without consent of a person from immovable property otherwise than in due course of law, such person may file suit under that section within six months from the date of dispossession. However, as per the plaint, the plaintiffs were allegedly dispossessed on 30.05.2021 and the present suit is filed only on 26.05.2022 i.e. after the expiry of six month from the date of dispossession.
10. It is noted that Hon'ble Supreme Court of India in the matter of In re-cognizance for extension of limitation Writ Petition (C) No. 3/2020, has directed that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 28.03.2022 shall stand excluded due to restricted working of the Courts as the result Brij Kumar and Anr. Vs. Payal Page: 5/8 of spread of Covid 19 virus. It further directed that consequently the balance period of limitation as remaining on 15.03.2020, if any, shall become available w.e.f. 29.03.2022 and also directed that in cases where the limitation would have expired during the period 15.03.2020 till 28.03.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 28.03.2022. Hence, even though the limitation for filing the present suit under Section 6 of Specific Relief Act stood expired on 30.11.2021, but in view of the directions of Hon'ble Supreme Court as filed on 26.05.2022 is within limitation as the period between 30.05.2021 to 28.03.2022 stands excluded.
11. Now, it is to be seen that whether the plaintiffs have been able to satisfy the conditions as provided under Section 6 of Specific Relief Act. The plaintiffs have relied upon Agreement to Sale and Purchase, receipts of part payment, GPA, possession letter and WILL, all dated 10.09.2019 as well as copy of property tax receipt to claim that they become the owner of the suit property. However, as per the case of the plaintiffs, they were compelled to return back to their hometown due to Covid 19 pandemic as they were not able to get the employment and they came back to Delhi only on 01.06.2021 and found that the Brij Kumar and Anr. Vs. Payal Page: 6/8 defendant has taken over the illegal possession of the suit property.
12. The plaintiffs have also relied upon GPA executed by plaintiff no.2 in favour of plaintiff no.1 which was registered before Sub Registrar, SR IVb, Vivek Vihar, New Delhi on 31.03.2021 stated to be executed for looking after the share of plaintiff no.2 in the suit property. The said document is in variance to the stand of the plaintiffs that they came back to Delhi only on 01.06.2021 after having gone to their hometown after the imposition of lockdown. Entire plaint is silent as to whether the plaintiffs have came to Delhi before 01.06.2021 also or not. This clearly shows that the plaintiffs have suppressed material information from this Court.
13. The photographs of the lock on the premises firstly are not legible, and moreover, the said photographs does not show that the photo was of the lock of the suit premises only. The plaintiffs have also not examined any of the witnesses to the documents executed in respect of the suit property. The documents Ex.PW-1/2 and Ex.PW-1/3 are silent with respect to the chain of ownership of the suit premises.
14. Even though the defendant is ex-parte, the plaintiffs have to prove their own case and in view of the above discussion and evidence on record, I am Brij Kumar and Anr. Vs. Payal Page: 7/8 satisfied that the plaintiffs have suppressed material facts with respect to their visit to Delhi prior to 01.06.2021. The plaintiffs have claimed that they have paid Rs.36,00,000/- to the defendant but to details of the source of said payment are disclosed in the plaint as the plaintiffs are claiming that they are poor persons. Hence, the suit of the plaintiff is dismissed as they have failed to prove on record their previous possession of the suit property as well as their alleged dispossession.
15. Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court PAWAN Digitally signed
by PAWAN
on 26th April, 2023. SINGH SINGH RAJAWAT
Date: 2023.04.26
RAJAWAT 23:00:19 +0530
(PAWAN SINGH RAJAWAT)
ADJ-08 (West)
Tis Hazari Court, Delhi.
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