Delhi District Court
Sh. R.C. Pandey vs Sh. Ram Pal on 5 July, 2022
IN THE COURT OF SH. BALWINDER SINGH, SCJcumRC
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS SCJ No.: 96579/16
Sh. R.C. Pandey
S/o Sh. G.N. Pandey
R/o Lane No.12, H. No. 69
Ground Floor, Nehru Nagar,
Delhi110065 .....Plaintiff
Versus
1. Sh. Ram Pal
S/o Hoshiyar Singh @ Hoshiara
R/o Village Ghitora, PO Khas
District Bhagpat, UP
2. Smt. Tejo Devi
W/o Hoshiyar Singh @ Hoshiara
R/o Village Ghitora, PO Khas
District Bhagpat, UP ..........Defendants
DATE OF INSTITUTION : 11.04.2005
DATE OF RESERVING THE JUDGMENT : 04.07.2022
DATE OF DECISION : 05.07.2022
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION.
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit filed by the CS SCJ No. 96579/16 Page no. 1 of 23 plaintiff seeking a decree of specific performance and permanent injunction against the defendants.
2. The brief facts of the case of the plaintiff, as per the plaint, are as follows:-
i) That Late Sh. Hoshiyar Singh @ Hoshiara, father of defendant No.1 and husband of defendant No.2, being the owner of the premises bearing no. N-12/69, Nehru Nagar, Sri Niwas Puri, New Delhi inducted the plaintiff as a tenant in the said property at a monthly rent of Rs. 300/- in the year 1987 which is specifically shown in the red colour in the site plan (hereinafter referred to as the suit property) for residence as well as commercial purpose.
ii) Sh. Hoshiyar Singh died in the month of February, 2001 and thereafter the defendant No.1 started accepting the rent from the plaintiff.
iii) In the month of October, 2002, the defendant No.1 agreed to sell the suit property to the plaintiff for a total sale consideration of Rs.
2,00,000/- and received a sum of Rs.25,000/- as part payment and also issued a token receipt in lieu thereof to the plaintiff. The defendant No.1 also entered into an agreement to sell dated 26.11.2002 with the plaintiff and also on behalf of her mother, the defendant No.2 who was stated to be the attorney holder of Late Sh. Hoshiyar Singh.
iv) As per the terms of the agreement to sell, it was agreed that the defendants shall apply for the requisite permission from the appropriate authorities, both local and central, for the sale of the CS SCJ No. 96579/16 Page no. 2 of 23 property within a period of two months and the fact of such approval would also be intimated to the plaintiff within 30 days therefrom.
v) That the plaintiff was already in the possession of the suit property since 1987 as a tenant and from the day of execution of the agreement to sell dated 26.11.2002 the plaintiff is in the possession of the suit property by virtue of his ownership rights.
vi) That the plaintiff has been approaching the defendant for the execution of the sale documents since February/March, 2003, however, the defendant always dragged the matter on one or other pretext.
vii) That on the repeated insistence and request of the plaintiff regarding execution of the sale document, in the month of September, 2004, the plaintiff was told to purchase the requisite stamp paper for the execution of the sale deed in his favour which the plaintiff accordingly purchased on 13.09.2004.
viii) That the plaintiff after the purchase of the stamp paper intimated and requested the defendants to execute the sale deed by also receiving the balance sale consideration, however, the defendants again started prolonging the matter.
ix) That in the month of January, 2005, the plaintiff again requested the defendants to execute the sale deed as the validity of the stamp paper was about to expire, however, despite his numerous efforts and reminders the defendants did not pay any heed to his request due to which he was constrained to issue a legal notice to the CS SCJ No. 96579/16 Page no. 3 of 23 defendants demanding the execution of the sale documents. However, it is stated that despite the service of the legal demand notice, the defendants did not execute the sale documents and on the contrary started threatening the plaintiff that they would create a third party interest in the suit property. Hence, the present suit.
3. On receipt of the summons, the defendants also appeared in the Court through their counsel and filed their WS. In their WS, following preliminary objections have been raised by the defendants:
i) The suit of the plaintiff is without any cause of action as the defendants never entered into any agreement to sell dated 26.11.2002 and the same is a manipulated document and the signatures of defendant No.1 have been forged upon the said document.
ii) The plaintiff is a tenant of the defendants since 1992 and did not make any payment of the rent of the tenanted premises due to which a dispute was going on between the parties.
iii) After the death of Late Sh. Hoshiyar Singh, the plaintiff told the defendants that he is ready to make the payment of rent @ Rs.300/ per month to the defendants and accordingly paid a sum of Rs.31,300/ as arrears of rent of the previous period and in respect of the remainder it was told that the same has been deposited by him in the rent Court.
v) When the rent of Rs.31,300/ was received by the defendants, four CS SCJ No. 96579/16 Page no. 4 of 23
receipts were executed by him. It is averred that at the time of execution of those receipts, it was told to the defendant No.1 that all the said receipts are in respect of the rent received by him. However, since the defendant No.1 does not understand English language and the defendant No.2 is illiterate, the plaintiff played fraud and has forged their signatures on the alleged agreement to sell dated 26.11.2002 as well as the signatures of Sh. Prakash Chand, Mahesh Chander and the defendant No.2 on affidavits.
vi) That suit of the plaintiff is bad for nonjoinder of other legal heirs of Late Sh. Hoshiyar Singh i.e. his two other sons namely, Prakash Chand and Mahesh Chander who are necessary parties to the suit.
vii) The alleged agreement to sell is contrary to the law as the suit property is a public premises which cannot be sold by the defendants.
4. On merits also denying the execution of any agreement to sell, all the averments of the plaintiffs have been denied by the defendants and it has been reiterated that the plaintiff has forged the signatures of defendant no.1 and 2 on the alleged agreement to sell/affidavit and that the same are forged and fabricated documents.
5. On completion of pleadings of both the parties and admission & denial of documents, the following issues were settled between the parties in the suit for the purpose of trial;
(i) Whether the suit of the plaintiff is without any cause of action?
OPD
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(ii) Whether the suit is bad for nonjoinder of necessary parties? OPD
(iii) Whether the alleged agreement to sell is not in accordance with law? If so, to what effect? OPD
iv) Whether the plaintiff is entitled for decree of specific performance as prayed for? OPP
(v) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
(vi) Relief.
Thereafter, the parties were called to lead their evidence.
6. During plaintiff's evidence (PE), plaintiff appeared in the witness box as PW1 and tendered his evidence by way of affidavit Ex.P1 bearing his signatures at point A and B. He has also relied upon the following documents:
i) Ex.PW1/1 is the postal receipt of speed post whereby the legal notice dated 09.02.2005 was issued to the defendants.
ii) Ex.PW1/2 is the legal notice dated 09.02.2005 issued by the plaintiff to the defendants calling upon them to execute the sale documents.
iii) Ex.PW1/3 is the agreement to sell dated 26.11.2002.
iv) Ex.PW1/4 is the receipt dated 19.10.2002 of payment of a sum of Rs.25,000/ made by the plaintiff to the defendant towards part payment of consideration amount.
v) Ex.PW1/5 is the receipts dated 15.11.2001 of payment of rent of Rs.3300/ by the plaintiff to defendant no.1 for the period w.e.f.
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01.01.2001 to 30.11.2001.
vi) Ex.PW1/6 is the agreement to sell pertaining to the year 2004.
vii) Mark C is the affidavit of Sh. Prakash and Sh. Mahesh, both S/o Late Sh. Hoshiyar Singh regarding relinquishment of their all rights in respect of the suit property in favour of defendant No.1.
viii) Mark D is the copy of order dated 20.07.2004 whereby the suit of the plaintiff bearing civil suit no. 294/02 for permanent injunction was disposed off by the concerned Court on the statement of defendants Sh. Shayam Sunder Chaudhary and Sh. Gurmeet Singh Salil that they will not dispossess the plaintiff without due process of law.
Further the plaintiff also examined one more witness namely Gladwin Dayal as PW2 to prove the transaction in question who tendered his evidence by way of affidavit Ex.PW2/A and also placed reliance upon the documents Ex.PW1/3 and Ex.PW1/4 already exhibited during the recording of evidence of PW1.
Both the abovesaid witnesses were duly crossexamined by the Ld. Counsel for defendants.
7. In DE, defendants also appeared in the witness box as DW1 and tendered his evidence by way of affidavit Ex.DW1/A and also placed reliance upon the following documents: CS SCJ No. 96579/16 Page no. 7 of 23
i) Ex.DW1/1 is a receipt dated 15.11.2001 regarding receiving a sum of Rs.3300/ as rent from the plaintiff for the period w.e.f. 01.01.2001 to 30.11.2001.
ii) Ex.DW1/2 is a receipt dated 17.03.2002 regarding receiving a sum of Rs.1200/ as rent from the plaintiff for the period w.e.f. 01.12.2001 to 31.03.2002.
iii) Ex.DW1/3 is a receipt dated 10.10.2002 regarding receiving a sum of Rs.1800/ as rent from the plaintiff for the period w.e.f. 01.04.2002 to 30.09.2002.
DW1 was also duly crossexamined by the Ld. Counsel for plaintiff.
8. I have already heard Ld. Counsels for both the sides and have also gone through the available record as well as their written submissions very carefully.
9. The issuewise findings are as under: Issue No. 1 Whether the suit of the plaintiff is without any cause of action? OPD The burden to prove this issue lies upon the defendants. Since the issue in hand is legal in nature and not dependent upon facts, the defendants were not expected to discharge their burden by leading separate evidence. However, though the issue is legal in nature the defendants are still duty bound to prove that the plaintiff is without CS SCJ No. 96579/16 Page no. 8 of 23 any valid cause of action on sound basis.
Now as already discussed above the issue in hand is based on the preliminary objections of the defendants in their WS. The basis of raising such preliminary objection is that agreement in question is firstly manipulated document and secondly that the suit property is a public premises and as such the alleged agreement is also contrary to law since the defendants can not sell off the property on that account.
As far the question whether the document in question i.e. agreement to sell dated 26.11.2002 is a manipulated document or not, since it is the plaintiff who is relying upon the said document, the burden to prove the same lies upon him and as such the discussion on that aspect shall be held during the disposal of issue no. 4. However, as it is the contention of the defendants that the suit property is a public premises and therefore the alleged agreement is contrary to law, it is the defendants who must prove that it is actually so. It is pertinent to mention here that too prove this fact though some questions were put to PW1 to suggest that the property is a leasehold property, however, the nature of property being leasehold per se does not make the plaintiff without any cause of action more so when the ownership rights of the defendants over the suit property are not disputed. Moreover, it is also not the case of the defendants that the property can never be freehold. As such if the plaintiff is able to prove the execution of a valid agreement to sell between the parties, the mere fact that the property in question is a leasehold property does not affect his right to seek specific performance of such agreement CS SCJ No. 96579/16 Page no. 9 of 23 including the direction that the defendants be directed to get the property freehold as was agreed by way of the alleged agreement to sell in dispute.
Thus, the court finds that the defendants have failed to discharge their burden and the issue in hand accordingly stands decided against them and in favor of the plaintiff.
ISSUE NO. 2Whether the suit is bad for nonjoinder of necessary parties? OPD The burden to prove this issue also lies upon the defendants. Since the plaint of the plaintiff as well as documents relied upon by him more particularly Mark C (colly.) shows that the plaintiff is also relying upon the two affidavits purportedly executed by Sh. Mahesh Chander and Sh. Prakash Chand, the two other brothers of defendant no.1 to show that the defendant no.1 had the authority to enter into the alleged agreement to sell for the sale of the suit property, there is no dispute on the fact that Late Sh. Hoshiyar Singh was also survived by the said LRs besides defendants No.1 and 2. It is also another admitted position that the said LRs have not been joined as a party to the suit despite an objection raised by the defendants to the maintainability of the present suit on that account in their WS.
The abovesaid objection has been primarily raised by the defendants on the ground that since Late Sh. Hoshiyar Singh had died intestate which fact is also not disputed fact by the plaintiff, Sh. Parkash Chand and Sh. Mahesh Chand were also equally entitled to the suit CS SCJ No. 96579/16 Page no. 10 of 23 property in their equal share as per the law of succession and as such both of them are necessary parties to the present suit. It is further argued that since the agreement to sell is in respect of the entire suit property, the nonjoining of the said LRs would not only adversely affect their rights without opportunity to oppose the claim of the plaintiff but at the same time no effective order can be passed with respect to the suit property which is the subject matter of the present suit in their absence. It is also argued that by way of the present suit, the plaintiff is not only seeking a relief against the defendants only but he is in fact also seeking relief against the other LRs of Late Sh. Hoshiyar Singh that too without joining them as a party to the suit though they also have equal rights over the suit property being his LRs. It is further submitted that though both the defendants have already disputed and denied the alleged agreement to sell, however, even if for the sake of arguments, the said agreement is believed to be true, the same has no value in the eyes of law as without the consent of the remaining LRs, the defendants no.1 and 2 could not have agreed to sell the suit property. Similarly, no opportunity has been given to the said LRs to either admit or deny the alleged affidavits relied upon by the plaintiff during his evidence. It is also argued that moreover the plaintiff has also not restricted his claim only qua the share of defendants no.1 and 2 or has made any alternative prayer to that effect in his suit. Accordingly, it is argued on behalf of the defendants that since both Sh. Prakash Chand and Sh. Mahesh Chander, the other LRs of Late Sh. Hoshiyar Singh, were not joined as a party to the suit despite them CS SCJ No. 96579/16 Page no. 11 of 23 being necessary parties, the suit of the plaintiff is bad for nonjoinder and is liable to be dismissed.
On the other hand, it is argued on behalf of the plaintiff that since the suit in hand is a suit for specific performance and permanent injunction, the nonjoinder of other LRs of Late Sh. Hoshiyar Singh who were not a party to the agreement to sell in question, they were not required to be joined as a party to the suit as they were neither necessary nor proper parties and as such their nonjoinder does not affect the maintainability of the suit.
Admittedly, the alleged agreement to sell in question is purported to be executed between the plaintiff and the defendants no.1 and 2, though the same does not bear the signature of defendant no.2 at any place. Further, the perusal of the alleged agreement to sell further reveals that the defendants no.1 and 2 have been shown as the only surviving LRs of Late Sh. Hoshiyar Singh who is stated to be expired on 27.02.2001. It is also pertinent to mention here that the document Mark C (colly.) relied upon the plaintiff i.e. affidavits of Sh. Mahesh Chander and Sh. Pratap Chand further reveals that the said affidavits pertain to the year 2003 though they do not bear any exact date of their execution. It is further interesting to note here that though during his crossexamination, PW1 deposed that he can neither admit or deny the suggestion of the Ld. Counsel for the defendant regarding the existence of other LRs of Late Sh. Hoshiyar Singh, however, his own documents i.e. Mark C as well as Ex.PW1/4 i.e. receipt dated 19.10.2002 leaves no doubt for the Court to CS SCJ No. 96579/16 Page no. 12 of 23 believe that the plaintiff was aware of the existence of the said LRs of Late Sh. Hoshiyar Singh on the day of execution of the alleged agreement to sell. His another answer during crossexamination that he never made any enquiry from defendant no.1 after the death of Late Sh. Hoshiyar Singh that whether he was also liable to pay the proportionate rent to any other person and that he does not remember whether he had seen any power of attorney executed by the defendant no.2 or any other LRs in favour of the defendant no.1 at the time of entering into the alleged agreement to sell further shows the absence of reasonable enquries on his part prior to entering the alleged agreement to sell though as per Ex.PW1/4, the alleged part payment of Rs.25,000/ was received by the defendant no.1 on behalf of his mother as well as two other brothers namely, Mahesh and Parkash. The reply of the plaintiff given during his crossexamination suggests that he was in some sort of hurry and blindly believed whatever was allegedly told by the defendant no.1 or else it indicates that he is just trying to create a story in order to escape his obligation to join them as a party to the suit and to avoid the consequences of nonjoinder of necessary parties.
Be it as may, it is also relevant to note here that the present suit is not a simplicitor suit for specific performance, but the plaintiff is also seeking a decree of permanent injunction against the defendants that they may be restrained from creating a third party interest in favour of any third person as it was pleaded that the defendants are threatening to dispose off the suit property to the detriments of his rights. At the same CS SCJ No. 96579/16 Page no. 13 of 23 time, it is also prayed that the defendants may also be restrained from dispossessing the plaintiff out of the suit property or creating any hindrance in the peaceful enjoyment of the same. This very prayer of the plaintiff qua the defendants with respect to the suit property further highlights the relevance of the other LRs of Late Sh. Hoshiyar Singh as without joining them as a party to the suit and in the absence of any evidence, documentary or oral, furnished by the plaintiff that they have no right over the suit property clearly no effective order can be passed in the present suit with respect to the suit property. Without joining the other LRs of Late Sh. Hoshiyar Singh even if a restraint order is passed in favour of the plaintiff and against the defendants, the same shall remain ineffective as it cannot bind the other LRs who have not been joined as a party to the suit and as such the dispute will always remain open and cannot be settled permanently.
Thus, in view of the abovesaid discussion, there can be no two opinions on the aspect that the other LRs of Late Sh. Hoshiyar Singh namely, Sh. Mahesh Chander and Sh. Prakash Chand are also necessary parties to the suit. However, since they have not been joined as a party to the suit despite an objection raised by the defendants in their WS at the very initial stage of the suit, clearly their suit is bad for nonjoinder of necessary parties.
Accordingly, the issue in hand stands decided in favour of the defendants and against the plaintiff.
ISSUES NO.3
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Whether the alleged agreement to sell is not in accordance with law? If so, to what effect? OPD The burden to prove this issue lies upon the defendant. The plea that the agreement to sell in question is contrary to law has been raised by the defendant on the following grounds:
i) The agreement is false and fabricated document as the same was never executed by the defendants.
ii) The alleged agreement is not executed by all the LRs of Late Sh. Hoshiyar Singh.
iii) The alleged agreement to sell is neither registered nor even notarized.
iv) The alleged witnesses to the agreement to sell in question have not been examined by the plaintiff to prove its execution.
v) There is cutting and overwriting on the alleged agreement to sell on its second page where the balance sum of consideration amount is mentioned.
vi) It is also argued that in para no.5 of alleged agreement to sell, it is mentioned that the possession of the vendee shall remain continue in part performance of the agreement to sell which is in violation of Section 53A of Transfer of Property Act as the alleged agreement is not registered as per law.
However, none of the grounds taken by the defendant to show that the agreement is contrary to law helps him in discharging his burden to prove the issue in hand. It is relevant to mention here that as per CS SCJ No. 96579/16 Page no. 15 of 23 Section 23 of Indian Contract Act, the consideration or object of an agreement can be said to be unlawful or contrary to law only when the said agreement is forbidden by law; or is of such a nature that if permitted, would defeat the provisions of any law; or the agreement is fraudulent; or involves or implies injuries to the person or property of another person; or the Court regards the agreement as immoral or opposed to public policy. However, in the present case except disputing the execution and authenticity of the agreement to sell, nothing has been specified by the defendant either in his WS or during examination in the Court as to how the agreement to sell in question is contrary to law. As far as his contention that the suit property is a public premises and on that account, the suit of the plaintiff is bad, the same has already been discussed and rejected by the Court during the disposal of issue no.1. Further, the contention that the agreement to sell contains a term contrary to Section 53A of Transfer of Property Act also does not render the agreement contrary to law as it only takes away the right of the plaintiff to seek protection of his possession u/s 53A, the agreement to sell being unregistered one.
Accordingly, the Court finds that the defendants have not been able to discharge their burden to prove this issue. The same accordingly stands decided in favour of the plaintiff and against the defendants.
ISSUE NO.4 Whether the plaintiff is entitled for decree of specific performance as CS SCJ No. 96579/16 Page no. 16 of 23 prayed for? OPP The burden to prove this issue lies upon the plaintiff. To discharge this burden, the plaintiff has mainly relied upon his testimony as well as the following documents:
i) Ex.PW1/3 i.e. the agreement to sell dated 26.11.2001,
ii) Ex.PW1/4 is receipt dated 19.10.2002 of payment of Rs.25,000/ made to the defendant towards part payment of consideration amount.
iii) Ex.PW1/6 i.e. agreement to sell pertaining to the year 2004.
iv) Mark C i.e. affidavits of Sh. Prakash Chand and Sh. Mahesh Chander relinquishing their rights in respect of the suit property in favour of defendant no.1.
It is also argued on behalf of the plaintiff that as the execution of the receipt dated 19.10.2002 Ex.PW1/4 regarding the payment of a sum of Rs.25,000/ by the plaintiff is himself admitted by the defendant no.1 during crossexamination on 03.12.2019 as he admitted his signatures on the said documents, it stands proved that the plaintiff and the defendant had entered into the agreement to sell dated 26.11.2001 and a sum of Rs.25,000/ as part payment of consideration amount was also received by the defendant no.1. It is further submitted that the statement of the defendant during his crossexamination that no rent was ever paid by the defendant after 2002 and neither any action was initiated by him for recovery of the arrears of rent further indicates that both the sides had entered into the agreement to sell the suit property and CS SCJ No. 96579/16 Page no. 17 of 23 from the date of the agreement, the possession of the plaintiff had changed from that of a tenant to a prospective/bonafide purchaser.
On the other hand, it is argued on behalf of the defendants that the plaintiff has not been able to prove the execution of the alleged agreement to sell itself as neither any of the alleged witness of the said agreement have been examined by the plaintiff during the trial nor has he been able to establish its genuineness. It is argued that the defendants have already disputed and denied the execution of the alleged agreement to sell and in such a scenario, it was incumbent upon the plaintiff to prove the authenticity of the documents beyond any doubt. It is submitted that in view of the denial of the defendants, the plaintiff was required to prove that the alleged signatures of defendant no.1 on the alleged agreement to sell are actually his signatures. However, no handwriting expert was examined by the plaintiff to prove the signatures of the defendants on the alleged agreement to sell. It is further argued that as far as the testimony of PW2 namely Gladwin Dayal is concerned, the said witness is also a hearsay witness as though he has claimed himself to be a witness to the transaction in question, however, neither he has been shown as a witness in the alleged agreement to sell nor has been able to satisfactorily give the details of the transaction during his crossexamination. It is also argued that on the contrary the documents relied upon by the plaintiff are contrary to his own pleadings as one of the document namely Ex.PW1/6 is another agreement to sell pertaining to the year 2004 with respect to the same suit property purportedly executed between the plaintiff and the CS SCJ No. 96579/16 Page no. 18 of 23 defendants in the year 2004 which was disclosed by the plaintiff for the first time only at the time of his examination in the Court, though his entire pleadings as well as legal demand notice Ex.PW1/2 are silent with respect to the execution of the alleged agreement to sell. Further, no explanation has come from the plaintiff side as to what was the reason for entering into the said second agreement if the parties had already entered into an agreement to sell for the sale/purchase of said suit property vide agreement Ex.PW1/3. Similarly, the document Mark C i.e. the alleged affidavits of Sh. Prakash Chand and Sh. Mahesh Chander also exposes lies in the claim of the plaintiff that he was not aware of the said LRs at the time of the execution of the alleged agreement to sell and that the defendants no.1 and 2 had the authority to execute the alleged agreement.
Admittedly, as per the alleged agreement to sell Ex.PW1/3, two persons namely Sh. Narender and Sh. Munish have been shown as witness to the said agreement. However, none of them were examined by the plaintiff in support of his case. No justified explanation has come from the plaintiff side for the nonexamination of the said witnesses. It is also not disputed that the defendants have vehemently refused and denied the execution of the agreement to sell. Though it is correct that during his crossexamination the defendant no.1 admitted that the document Ex.PW1/4 i.e. receipt dated 19.10.2002 of Rs.25,000/ bears his signatures, however, the said statement cannot be read in isolation more particularly in view of the fact that the defendants have categorically contended that the plaintiff has played fraud with them and in the garb of CS SCJ No. 96579/16 Page no. 19 of 23 the receipts which were issued by the defendant no.1 towards the payment of the arrears of rent amounting to Rs.31,300/, the signatures of the defendants were forged by the plaintiff. It is further important to note here that the perusal of the rent receipts Ex.DW1/1 to Ex.DW1/3 (also exhibited as Ex.PW1/5, Ex.PW1/D1 and Ex.PW1/D2) as well as receipt dated 19.10.2002 Ex.PW1/4 shows that all the receipts are almost identical in look and contents except the receipt Ex.PW1/4 where the amount of Rs.25,000/ is shown to be received by the defendant no.1 as part consideration amount of alleged agreement to sell. It is interesting to note here that as per the said receipt the said amount of Rs.25,000/ was received by the defendant on behalf of his mother Tejo Devi as well as two other brothers namely, Prakash @ Bablu and Mahesh. Moreover, the said receipt per se does not give the complete details of the transaction in question as though it speaks of the payment of Rs.25,000/ as part consideration amount of the sale but does not disclose what was the actual consideration amount fixed for the sale of the suit property. Accordingly, even if it is believed for the sake of arguments that the receipt in question was actually issued by the defendant towards the receipts of the part payment of consideration amount, in the absence of the alleged agreement to sell being proved by the plaintiff to the satisfaction of the Court and beyond reasonable doubt to be actually entered with the defendants, it cannot be assumed that there was any agreement to sell entered into between the plaintiff and the defendant side for the sale of the suit property. Moreover, the entire pleadings as well as CS SCJ No. 96579/16 Page no. 20 of 23 the testimony of the plaintiff is also silent as to why when the part payment was made on 19.10.2002, the alleged agreement to sell was executed after more than one month on 26.10.2002. Similarly the non explanation from the plaintiff side with respect to the need and reason for entering into the second agreement to sell of 2004 and the failure to plead such material fact in his plaint further makes difficult for the Court to believe his version that any agreement to sell for the sale of suit property was actually entered into between the plaintiff and the defendant. As far as the testimony of PW2 is concerned, the Court is also in agreement with the submissions of LD. Counsel for defendant that the same is merely hearsay as neither the said witness is a witness to the transaction nor his crossexamination reveals that he has been able to give satisfactory reply with respect to the details of the transaction in question.
Thus, the court finds that on the balance of preponderance of probabilities, the version of defendant appears to be more convincing and trustworthy.
Accordingly, the issue in hand stands decided against the plaintiff and in favour of the defendants.
ISSUE NO.5 Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP The burden to prove this issue also lies upon the plaintiff. The issue in hand was settled for the purpose of trial on the CS SCJ No. 96579/16 Page no. 21 of 23 basis of the prayer of the plaintiff that the defendants may be restrained from dispossessing him or interfering in his peaceful possession as well as from creating third party interest in the suit property.
As also mentioned in the preceding paras of this judgment, this relief of the plaintiff is also based on his claim that he is in the possession of the suit property on the basis of the alleged agreement to sell Ex.PW1/3 as he has acquired ownership rights in the suit property by virtue of the same.
However, as already held in the preceding paras that the plaintiff has failed to prove the execution of the alleged agreement to sell, it cannot be said that the plaintiff has acquired any right in the suit property on the basis of the alleged agreement to sell. Further as the execution of agreement to sell is itself held to be not proved there is no question of the application of Section 53 of TPA Act. Even otherwise as the alleged agreement to sell was unregistered, had its execution been proved, the plaintiff could not have claimed the protection of such provision to protect his possession. As such, the prayer of the plaintiff with respect to restraining the defendants from creating any third party interest in the suit property is without any merits and accordingly cannot be allowed.
As far as the aspect of threat of dispossession at the hand of defendants is concerned, since no material has been adduced by the plaintiff during the recording of his evidence to convince the Court that any such attempt was actually ever made by the defendant side or that CS SCJ No. 96579/16 Page no. 22 of 23 any such threat actually exists, it cannot be said that there is any actual threat to the plaintiff of any dispossession at the hands of plaintiff.
Accordingly, the issue in hand also stands decided against the plaintiff and in favour of the defendants.
Issue No.6 Relief:
In view of my findings on above said issues, the suit of the plaintiff stands dismissed.
10. The cost of the defendants to defend the suit shall be born by the plaintiff. Decree sheet be prepared accordingly.
11. Copy of judgment be given dasti free of cost to both the sides on their request. File be consigned to record room as per rules.Digitally signed by BALWINDER
BALWINDER SINGH
SINGH Date: 2022.07.05
19:49:44 +0530
Announced in the open Court (Balwinder Singh)
on this 5th day of July, 2022 SCJcumRC (Central)
Tis Hazari Courts, Delhi
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