Delhi District Court
Chander Parkash vs Om Prakash on 15 January, 2022
Chander Prakash v. Om Parkash
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
COUNTERCLAIM NO : 31/19
CNR NO.DLCT00086492019
In the matter of :
Chander Parkash
S/o Sh. Chunni Lal,
R/o 19, Village Tihar,
New Delhi ...(COUNTERCLAIMANT)
VERSUS
1. Om Prakash
S/o Sh. Umrao Singh,
R/o Village & PO Shohti,
Distt. Sonepat, Haryana.
Through Subhash Chander (As GPA)
S/o Sh. Krishan
R/o H.No.419, Village & PO Kakrola,
New Delhi - 110 075.
2. Brijender Kumar Sharma
S/o Sh. Parma Nand Sharma
R/o Falt No.5, Pocket 6/3,
DDA Flats, Nasir Pur,
Dwarka, New Delhi. ...RESPONDENTS
Date of institution : 23.03.2012
Date of judgment : 15.01.2022
COUNTERCLAIM
JUDGMENT
1. Vide this judgment, I shall decide a counter claim to suit bearing HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Date: 2022.01.15 Pg 1 of 27 KAUR 17:11:46 +0530 Chander Prakash v. Om Parkash No.96168/16.
BRIEF FACTS OF THE COUNTER-CLAIM (AMENDED 08.12.2014):
2. The brief facts of the counter-claim which are necessary for its disposal as alleged by counter-claimant are that one Sh. Bhule S/o Sh. Dola, R/o Village Vihar, Tilak Nagar, New Delhi was the owner of the land comprising in Khasra No.45/1 (2-17) and 50/1 (2-7) total measuring 5 bigha 4 biswas situated in the Village Dindarpur, Delhi. That as late Sh. Bhule was intending to sell the above said land and he authorized Sh. Raj Kumar S/o Sh. Harkishan R/o WZ-194, Village Tihar, New Delhi - 110 018 by executing a General Power of Attorney dated 08.12.1998 to transfer the above said land and the said GPA was executed with consideration and was irrevocable. Sh. Raj Kumar was fully authorized to transfer the said land to any person and to receive the consideration money. That Sh. Raj Kumar sold the land in suit to one Sh. Mohan Lal Negi vide sale deed dated 26.05.1999 and has handed over the actual possession to Sh. Mohan Lal Negi. Thereafter, Sh. Mohan Lal Negi being the actual owner of the land in question sold the land measuring 2 bigha 7 biswas comprising Khasra No.50/1 to Sh. Vijay Kumar and the land comprising in Khasra No.45/1 to Sh. Devi Dayal by executing the transfer documents and the actual possession was handed over of respective land to Sh. Vijay Kumar and Sh. Devi Dayal. That Sh. Vijay Kumar and Sh. Devi Dayal had further sold the land in suit for the defendant No.1 and thus, the defendant No.1 had HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Pg 2 of 27 Date: 2022.01.15 KAUR 17:11:58 +0530 Chander Prakash v. Om Parkash acquired the ownership rights from Sh. Vijay Kumar and Devi Dayal who were in possession and were owners of the above said land respectively of above said Khasras. That after having purchased the above said land in suit, the defendant No.1 has been in actual possession, user and enjoyment of the land in suit. That the plaintiffs who are land grabbers had manipulated with ulterior motive and had obtained a general power of attorney dated 09.03.1998 executed from late Sh. Bhule by playing fraud, misrepresentation of facts and even Sh. Bhule was not told about the said GPA dated 09.03.1998. That the GPA dated 09.03.1998 was got executed in favour of one Sh. Subhash Chander who is a close relative of the plaintiffs and thereafter, the plaintiffs have got executed a sale deed dated 25.02.1999 in favour of one Sh. Brijender Singh Sharma had executed a sale deed dated 16.10.1999 in favour of Sh. Om Prakash, plaintiff No.1 of the land measuring 4 bigha out of 5 bigha 4 biswas in a total consideration of Rs.1,31,250/-. That the GPA dated 09.03.1998 which was executed in favour of Sh. Subhash Chander along with the agreement to sell was executed in Rs.4,50,000/- and the sale deed by Sh. Subhash Chander in favour of Sh. Brijdener Kumar Sharma of the land in suit vide sale deed dated 25.02.1999 was executed in a total consideration of Rs.1,25,000/-. That Sh. Brijdender Kumar Sharma had sold 4 bigha out of 5 bigha 4 biswas vide sale deed dated 16.10.1999 in a total consideration of Rs.1,31,250/-. Thereafter, Sh. Brijender Kumar Sharma sold 1 bigha 4 biswas to Sh. Om Prakash, plaintiff No.1 vide sale deed dated 11.11.1999 HELLY Digitally signed COUNTERCLAIM NO : 31/19 FUR by HELLY FUR KAUR Pg 3 of 27 Date: 2022.01.15 KAUR 17:12:09 +0530 Chander Prakash v. Om Parkash in a total consideration of Rs.1,20,000/-. That Sh. Om Prakash had submitted in the plaint that he has sold about 1500 sq. yards of land out of 5 bigha 4 biswas to different persons by executing the transfer document. Sh. Om Prakash had not given address (sic) of the transfer documents on which date the said documents were executed. The plaintiffs and Sh. Subhash Chander who is close relative of the plaintiff had hatched a conspiracy to grab the property in suit by playing fraud upon Late Sh. Bhule who was recorded owner of the land in suit. That the GPA dated 09.03.1998 purported to be executed by Sh. Bhule in favour of Sh. Subhash Chander, the sale deed dated 25.02.1999 executed in favour of Sh. Brijender Kumar Sharma the sale deed dated 11.11.1999 executed by Sh. Brijender Kumar Sharma in favour of Sh. Om Prakash, plaintiff No.1 are totally null and void transfer document and the GPA because the above said documents have been prepared and executed by playing fraud and misrepresentation of facts on the original owner Sh. Bhule and thereafter, the above said sale even also got executed only to change the said null and void sale deed while in fact, the main beneficiary of the said documents always remained only the plaintiffs who are property dealers and are also relatives and cases of land grabbing and cheating have been registered against the plaintiffs. That the proceedings under Section 145 Cr.P.C are pending in the court of SDM, PS Najafgarh, Delhi, and the Ld. SDM, Najafgarh Sub Division has granted stay against the plaintiffs and possession of the defendant No.1 has ben thus protected by passing the order of Ld. SDM, Najafgarh Sub HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Date: 2022.01.15 Pg 4 of 27 KAUR 17:12:18 +0530 Chander Prakash v. Om Parkash Division, South West District, Delhi. The defendant No.1 had also filed an appeal against the mutation order which has been got obtained by the plaintiffs from the Tehsildar, Najafgarh and the said appeal is pending in the court of Collector, South West District, Kapashera, Delhi. That all the documents such as GPA dated 09.03.1998, sale deed dated 25.02.1999, sale deed dated 06.10.1999, and sale deed dated 11.11.1999 are null and void documents which have been obtained by playing fraud and by misrepresentation of facts, the plaintiffs have obtained the above said GPA and sale deed executed which are null and void documents and the same have been obtained without consideration and the said sale deed without consideration are thus, null and void sale deed and the same confer no title on the plaintiffs. The cause of action for filing the present counter-claim arose when the Hon'ble High Court of Delhi has allowed/set aside the ex- parte order by the Hon'ble High Court of Delhi and has allowed the defendants to file the written statement vide order dated 02.03.2012 and thus, the cause of action still subsists. Hence, the present counter-claim with following prayer:
(i) That a decree of declaration declaring the GPA dated 09.03.1998 executed by Sh. Bhule in favour of Sh. Subhash Chander, Sale deed dated 25.02.1999 executed in favour of Sh. Brijender Kumar Sharma in regard to the land comprising in Khasra No.45/1 (217) and Khasra No.50/1 (27) situated in the revenue estate of Village Dindarpur, Delhi, as null and void be passed in favour of defendant No.1 and against the plaintiff.
(ii) That a decree of permanent injunction may be passed in favour of the Digitally signed HELLY by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 5 of 27 2022.01.15 KAUR 17:12:27 +0530 Chander Prakash v. Om Parkash defendant No.1 and against the plaintiff restraining the plaintiffs from transferring the suit land to any other person or to dispossess the defendant No.1 from the suit land may be passed.
3. That the suit of the plaintiffs may please be dismissed with costs. WRITTEN STATEMENT TO COUNTER-CLAIM UNDER ORDER VIII RULE 6(A) OF CPC:
4. The respondents filed written statement to the counter-claim and have controverted the claim of the counter-claimant and has taken preliminary objections such as counter-claim is not within time, it is not properly valued for the purpose of court fee and jurisdiction and that counter-claim has not been filed properly.
5. In reply on merits, the contents of para No.1 have been stated to be incorrect as framed. It is incorrect that Sh. Raj Kumar got executed a GPA dated 08.12.1998 in his favour from Sh. Bhule. Sh. Bhule had no right in property in dispute as he had already sold the suit property to Sh. Subhash Chander and Sh. Subhash Chander has further sold the property to plaintiff No.2 and plaintiff No.2 sold the property to plaintiff No.1. Those documents have not been challenged in time. Execution, existence, validity and admissibility of said GPA dated 08.12.1998 is denied and that this document is liable for impoundment and is inadmissible in evidence and did not confer any right on Sh. Raj Kumar. Para No.2 is stated to be incorrect. It is submitted that it is incorrect that Sh. Raj Kumar sold the property to Sh. Mohan Singh Negi on 26.05.1999. Execution, existence and validity of sale deed is denied. Sh. Raj Kumar had no right to sell the property in favour of HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Pg 6 of 27 Date: 2022.01.15 KAUR 17:12:40 +0530 Chander Prakash v. Om Parkash any person. Para No.3 is also stated to be incorrect and it is submitted that it is incorrect that Sh. Mohan Lal sold the land measuring 2 bighas 7 biswas comprising Khasra No.50/1 to Sh. Vijay Kumar and land comprising Khasra No.45/1 to Sh. Devi Dayal by executing transfer documents or they got the possession of the suit property. Existence, execution, validity and admissibility of those documents are denied. Those documents are null and void, without consideration and without authority. Para 4 is also stated to be incorrect. It is incorrect that Sh. Vijay Kumar and Sh. Devi Dayal sold the land in suit to defendant No.1 or defendant No.1 became owner as alleged. Defendant No.1 is neither owner nor in possession of the suit property. Similarly, Sh. Vijay Kumar, Sh. Din Dayal, Sh. Mohan Singh Negi or Sh. Raj Kumar were not owner in possession of the suit property. Suit is in ownership of plaintiffs. Para No.5 is also stated to be incorrect. It is incorrect that defendant No.1 purchased the property and got possession as alleged. It is further incorrect that plaintiffs are land grabbers as alleged. Rest of the contents are denied being incorrect. Para 6 is admitted to be correct to the effect that Sh. Bhule executed GPA and other documents in favor of Sh. Subhash Chander who sold the same on 25.02.1999 to Sh. Bijender Kumar and Sh. Bijender Kumar further sold it in favour of Sh. Om Parkash vide sale deed dated 16.10.1999 and the left out area. Sh. Subhash Chander was in great need of money and he had to execute sale deed in favour of Sh. Bijender Kumar. The contents of para 7 and 8 are stated to be matter of record. Para 9 is stated to be incorrect as framed.
HELLY Digitally signed
by HELLY FUR
COUNTERCLAIM NO : 31/19 FUR KAUR
Date: 2022.01.15
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Chander Prakash v. Om Parkash
However, Sh. Subhash Chander is relative of plaintiff No.1 from distant relations and he is not in blood relation. It is incorrect that plaintiffs have hatched any conspiracy as alleged. Sh. Bhule has never challenged those sale deed/sale documents. No particulars of fraud have been mentioned. Para 10 is also stated to be incorrect. It is incorrect that GPA executed by Sh. Bhule in favour of Sh. Subhash Chander, sale deed dated 25.02.1999 executed by Sh. Subhash Chander in favour of Sh. Bijender Kumar and sale deed dated 11.11.1999 executed by Sh. Bijender Kumar in favour of Sh. Om Parkash are null and void. Rest of the contents have been denied by incorrect. Para 11 is stated to be matter of record. However, all those proceedings are null and void because during the pendency of the civil suit proceedings under Section 145 Cr.P.C. can not be initiated. There is no stay from the court of SDM. However, there is status quo but not this day. Plaintiffs are in possession of the suit property. Proceedings under section 145 CRPC are abuse of process of the court. Para 12 is stated to be matter of record. Revenue authorities have no right to cancel the mutation which is based on registered documents. Para 13 is stated to be incorrect. All the documents mentioned in this para are correct and legal. Those documents have not been challenged by Sh. Bhule during his lifetime. Those documents are valid and enforceable. Rest of the contents are denied being incorrect. Paragraph 14 is again stated to be incorrect. It is submitted that the contents of this paragraph show that the defendants have intentionally not shown the date of cause of action for filing the counterclaim. Digitally signed
COUNTERCLAIM NO : 31/19 HELLY by HELLY FUR
KAUR Pg 8 of 27
FUR Date:
2022.01.15
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Chander Prakash v. Om Parkash
Counterclaim is not maintainable and it is also not within time. It is incorrect that cause of action arose own 2 nd March 2012. Contents of paragraph 15 as stated to be legal. However this court has no jurisdiction to entertain the counter claim. Defendants have not paid court fee as per the market value of the suit property and the sale consideration as shown in sale deed. Para 16 of the counter claim is also stated to be incorrect and it is submitted that counterclaim is not properly valued for the purpose of court fees and jurisdiction.
REPLICATION:
6. The counter-claimant filed replication to the written statement of respondents while reiterating and reaffirming all the contents of the counter-
claim and denying all the contents of the written statement. ISSUES:
7. From the pleadings of the parties, following issues were framed for trial by Ld. Predecessor of this court vide order dated 11.01.2018:
1. Whether defendant No.1 is entitled to a decree of declaration, as prayed for in prayer of counter claim? OPD.
2. Whether defendant No.1 is entitled to a decree of permanent injunction, as prayed for in prayer of the counter claim? OPD.
3. Relief.
8. Before proceeding further, it may be mentioned that evidence was led in common in suit No.96188/16 and present counter-claim. Present counter HELLY Digitally signed by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 9 of 27 2022.01.15 KAUR 17:13:09 +0530 Chander Prakash v. Om Parkash claimant is defendant No.2 and DW-1 therein. Defendant No.1 in the present counter claim is plaintiff No.1 therein and defendant No.2 in the present counter claim is plaintiff No.2 therein. For the sake of convenience, evidence is reproduced verbatim as recorded in common.
9. PLAINTIFF'S EVIDENCE:
10. To prove their case, plaintiffs (respondents herein) examined Sh. Subhash Chander as PW-1, whose examination in chief is by way of affidavit Ex.PW-
1/A. PW-1 relied upon following documents:
i. Ex.PW-1/1 GPA dated 06.01.2007.
ii. Ex.PW-1/2 copy of jamabandi (objected to mode of proof).
iii. Ex.PW-1/3 copy of khasra girdawari (objected to mode of proof).
iv. Ex.PW-1/4 is de-exhibited and now is marked as Mark-A copy of mutation.
v. Ex.PW-1/5 (OSR) copy of ak-sizra.
vi. Ex.PW-1/6 registered GPA dated 09.03.1998.
vii. Ex.PW-1/7 notarized GPA dated 09.03.1998.
viii. Ex.PW-1/8 agreement to sell dated 09.03.1998.
ix. Ex.PW-1/9 affidavit of Sh. Bhule.
x. Ex.PW-1/10 receipt dated 09.03.1998 of Rs.4,50,000/-.
xi. Ex.PW-1/11 sale deed dated 25.02.1999.
xii. Ex.PW-1/12 sale deed dated 06.10.1999.
xiii. Ex.PW-1/13 GPA dated 11.11.1999.
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xiv. Ex.PW-1/14 agreement to sell dated 11.11.1999.
xv. Ex.PW-1/15 affidavit of Sh. Bijender Sharma.
xvi. Ex.PW-1/16 receipt dated 11.11.1999 of Rs.1,20,000/-.
xvii. Ex.PW-1/17 site plan (objected to mode of proof).
xviii. Ex.PW-1/18 was de-exhibited and marked as Mark-B copy of complaint
dated 16.06.2006.
xix. Ex.PW-1/19 was de-exhibited and marked as Mark-C copy of complaint
dated 26.06.2006 received on 28.06.2006.
xx. Ex.PW-1/20 was de-exhibited and marked as Mark-D copy of complaint
dated 10.07.2006.
xxi. Ex.PW-1/21 was de-exhibited and marked as Mark-E copy of complaint
dated 21.07.2006.
xxii. Ex.PW-1/22 was de-exhibited and marked as Mark-F copy of demarcation
report dated 03.06.2006.
xxiii. Ex.PW-1/23 de-exhibited and marked as Mark-G copy of receipt of Rs.50/-.
xxiv. Ex.PW-1/24 was de-exhibited and marked as Mark-H copy of application.
xxv. Ex.PW-1/25 copy of latest khasra girdawari (objected to mode of proof).
DEFENDANT'S EVIDENCE:
11. In order to prove their case, defendants (counter claimant) examined following witnesses:
DW-1 is defendant No.2 whose examination in chief is by way of affidavit HELLY Digitally signed by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 11 of 27 2022.01.15 KAUR 17:13:31 +0530 Chander Prakash v. Om Parkash Ex.DW-1/A. DW-1 relied upon following documents:
i. Ex.PW-1/D2 original General Power of Attorney dated 08.12.1998 (already exhibited).
ii. Ex.DW-1/1 original sale deed dated 26.05.1999 of Khasra No.45/1 (2-17) executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi.
iii. Ex.DW-1/2 was de-exhibited and marked as Mark-DH sale deed dated 26.05.1999 of Khasra No.50/1 (2-7) executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi.
iv. Ex.DW-1/3 General Power of Attorney dated 29.08.2000 executed by Sh.
Mohan Lal Negi in favour of Sh. Devi Dayal.
v. Ex.DW-1/4 affidavit dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
vi. Ex.DW-1/5 agreement to sell dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
vii. Ex.DW-1/6 receipt dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
viii. Ex.DW-1/7 possession letter dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
ix. Ex.DW-1/8 General Power of Attorney dated 23.07.2001 executed by Sh.
Devi Dayal in favour of Sh. Chander Parkash.
x. Ex.DW-1/9 Deed of Will dated 23.07.2001 executed by Sh. Devi Dayal in
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favour of Sh. Chander Parkash.
xi. Ex.DW-1/10 agreement to sell dated 23.07.2001 executed by Sh. Devi
Dayal in favour of Sh. Chander Parkash.
xii. Ex.DW-1/11 affidavit dated 23.07.2001 executed by Sh. Devi Dayal in
favour of Sh. Chander Parkash.
xiii. Ex.DW-1/12 receipt dated 23.07.2001 executed by Sh. Devi Dayal in favour
of Sh. Chander Parkash.
xiv. Ex.DW-1/13 possession letter dated 23.07.2001 executed by Sh. Devi
Dayal in favour of Sh. Chander Parkash.
xv. Ex.DW-1/14 General Power of Attorney dated 23.07.2001 executed by Sh.
Vijay Kumar in favour of Sh. Chander Parkash.
xvi. Ex.DW-1/15 Deed of Will dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
xvii. Ex.DW-1/16 agreement to sell dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
xviii. Ex.DW-1/17 affidavit dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
xix. Ex.DW-1/18 receipt dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
xx. Ex.DW-1/19 possession letter dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
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xxi. Ex.DW-1/20 certified copy of order dated 30.01.2018 passed by the court of
Add. Collector, District, South West in appeal No.97/07. xxii. Mark-DA copy of Will dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
xxiii. Mark-DB copy of General Power of Attorney dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxiv. Mark-DC copy of affidavit dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxv. Mark-DD copy of agreement to sell dated 29.08.2000 executed by Sh.
Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxvi. Mark-DE copy of receipt dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxvii. Mark-DF copy of possession letter dated dated 29.08.2000 executed by Sh.
Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxviii. Mark-DG copy of Will dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
xxix. Ex.DW-1/2 certified copy of sale deed dated 26.05.1999 of Khasra No.50/1 (2-7) executed by Raj Kumar in favour of Sh. Mohan Lal Negi. DW-2 is defendant No.1 whose tendered his examination in chief by way of affidavit Ex.D-2/A. DW-3 is Sh. Suresh Kumar, whose tendered his examination in chief by HELLY Digitally signed by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 14 of 27 2022.01.15 KAUR 17:13:58 +0530 Chander Prakash v. Om Parkash way of affidavit Ex.D-3/A.
12. I have heard the arguments and perused the record. Issue-wise findings as follows:
ISSUE NO.1 Whether defendant No.1 is entitled to a decree of declaration, as prayed for in prayer of counter claim? OPD.
13. By way of this counter claim (amended), counter claimant Chandar Prakash has sought declaration of GPA dated 09.03.98 executed by Sh. Bhule in favour of Sh. Subhash Chander and sale deed dated 25.02.99 executed in favour of Sh. Brijender Kumar Sharma with regard to the land comprising in Khasra no. 45/1 (2-17) and Khasra no. 50/1 (2-7) situated in revenue estate of Village Dindarpur, Delhi as null and void.
14. Before delving into the merits of the case, it is pertinent to note the dichotomy between declaration and cancellation of documents. By now, it is a settled law that cancellation of an instrument is covered under Section 31 of Specific Relief Act, 1963 whereas declaration of a document is covered under Section 34 of Specific Relief Act, 1963. While the former remedy can be availed only by a person who is the executant of the document/ instrument or if the instrument has been executed by a person who can bind such party or from whom the party derives the title, the latter can be availed even if the document has been executed by a stranger to title of the plaintiff. (Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties 2020 SCC HELLY Digitally signed by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 15 of 27 2022.01.15 KAUR 17:14:07 +0530 Chander Prakash v. Om Parkash OnLine SC 655).
15. In the present factual matrix, counter claimant claims that Sh. Bhule authorized Sh. Raj Kumar to sell the property and he in turn sold it to Sh. Mohan Lal Negi who sold it to Sh. Vijay Kumar and Sh. Devi Dayal who ultimately transferred to the counter claimant. Notably, the documents sought to be declared void have been executed by Sh. Bhule, himself and through his attorney Sh. Subhash Chander. Meaning thereby that the counter claimant falls in the category of Section 31 of the Act. At this point, I may note that in Deccan Paper Mills Co. Ltd. (supra), Hon'ble Court used the word 'can' for remedy under Section 31 meaning thereby such person can choose a remedy for himself from amongst declaration or cancellation. Here, the word used for the GPA dated 09.03.98 is 'declaration' whereas, for sale deed, 'cancellation' has been used and even court fees has been paid accordingly. A reading of the above judgment also indicates that the purpose of non-executant being had to approach under Section 34 of Specific Relief Act is the need to show his legal right or entitlement whereas in case of Section 31, it is observed that the principle behind the section is to protect a party or a person having a derivative title to property from such party from a prospective misuse of an instrument against him and that the document is delivered up and cancelled in the same way as a suit for rescission of a contract under section 29 of the Act. Meaning thereby that the parameters of both the provisions are different. Though the counter-
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claimant is ostensibly entitled to invoke Section 31 of SRA, nonetheless it cannot be ignored that the difference qua both the documents in terminology seems conscious. At the same time, on second thought, it transpires that such distinct use of words could have been due to nature of documents and the factum of registration.
16. Having noted the ambiguity, I shall still try to adjudicate the matter from all possible dimensions and on the basis of rights available to the parties.
17. The only ground of the counter-claimant for declaration and cancellation as expressly claimed in the counter-claim is fraud and misrepresentation committed against Sh. Bhule. I must state here that since the evidence of the suit bearing No.98168/16 as well as present counter-claim was led in common, it has come pass that in the written statement to the suit, the defendants have taken following pleas as well:
i. Document of the plaintiff have been got obtained from Sh. Bhule without consideration of money.
ii. Documents are forged, false and fabricated.
iii. Documents have been obtained by fraud and by misrepresentation of facts upon late Sh. Bhule who was an old, uneducated and illiterate person.
iv. Denied that Sh. Bhule executed the documents in favour of Sh. Subhash Chandar on 09.08.98.
18. To the contrary, in the counter-claim, only plea of fraud and HELLY Digitally signed COUNTERCLAIM NO : 31/19 FUR by HELLY FUR KAUR Pg 17 of 27 Date: 2022.01.15 KAUR 17:14:27 +0530 Chander Prakash v. Om Parkash misrepresentation has been taken. It is pertinent to say that counter claim should be in itself complete in all respects being pari-materia to a plaint and fresh suit in itself. Therefore, the court cannot per se give benefit of something which has been consciously omitted by a counter-claimant. Rather, it is worth noting that the in the counter-claim, execution of documents along with consideration has been averred explicitly in contradiction to the pleas in the written statement. In this regard and taking into account the pleas taken above, Order VI Rule 7 cannot be ignored which bars wholly inconsistent pleas of a party as compared to its previous pleadings. Here, clearly, mutually contradictory stands have been taken not only in two pleadings, rather in the same pleading as well which cautions the court to believe the counter-claimant.
19. As regards pleas raised in the counter claim which the court is seized of right now, it is pertinent to note Order VI Rule 4 of CPC which mandates particulars and details in the pleadings in case misrepresentation, fraud, breach of trust, willful default, or undue influence, and like circumstances are relied upon. I shall also take aid of ruling of Hon'ble Supreme Court of India in Bishundeo Narain & Another vs Seogeni Rai And Jagernath 1951 AIR 280 wherein, while referring to Order VI rule 4 of CPC it was held:
It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Date: 2022.01.15 Pg 18 of 27 KAUR 17:14:36 +0530 Chander Prakash v. Om Parkash forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.
20. It has been plainly averred by the counter-claimant that the documents were got executed by Sh. Bhule by playing fraud and misrepresentation and Sh. Bhule was not told about it. No further details or particulars have been mentioned as to how and in what manner Sh. Bhule got defrauded or misrepresented. Therefore, the very pleadings are incomplete in the eyes of law and it is trite law that evidence cannot be led beyond pleadings.
21. Nevertheless, what may be still noted is the meaning of fraud and misrepresentation and whether defendant has brought anything on record falling within the ambit of the same. As per Section 17 and Section 18 of Indian Contract Act 1872, fraud and misrepresentation carry following meaning;
"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:-- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;Digitally signed
HELLY by HELLY FUR
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FUR Date:
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Chander Prakash v. Om Parkash
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
"Misrepresentation" means and includes--
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.
22. It bears repetition to say that nothing of such sort as mentioned in the above provisions have been pleaded in the pleadings. On scrutiny of evidence, it emerges that counter-claimant has not examined any witness who could have personal knowledge of the factum or circumstances of fraud committed by respondents with Sh. Bhule. In fact, in its notable that between Sh. Bhule and the counter-claimant, there are interveners forming a chain of transfer and it has come on record during the testimony of DW- 1/counter-claimant that he was not present at the time of first transfer by Sh. Bhule to Sh. Raj Kumar though it is deposed that counter claimant that Sh. Bhule told him that he never executed any sale document in favour of anyone with respect to the suit property. Besides, it is stand of counter- claimant that the documents were actually executed by Sh. Bhule but by way of fraud and misrepresentation and not that there was any forgery (as against averment in the written statement), whereas to the contrary, it has Digitally signed HELLY by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Pg 20 of 27 Date: 2022.01.15 KAUR 17:14:53 +0530 Chander Prakash v. Om Parkash been deposed during cross examination that thumb impression on Ex.PW1/6 (GPA dated 09.03.98) are not of Sh. Bhule. Apart from this, counter claimant has not even bothered to summon attesting witnesses to the GPA as witness in the suit who could be the best persons to illicit the truth.
23. I shall also note that during cross examination of PW-1 (Sh. Subhash Chandar- witness of plaintiff in the main suit), it was deposed that Sh. Bhule was unable to read English language. Indeed, this very statement creates doubt over execution of Ex.PW1/6 which bears signatures of Bhule in English. Further, it was surprisingly admitted that Ex.PW1/6 does not bear signatures of Bhule. It was stated voluntarily that it bears his thumb impression and it was suggested by Ld. Counsel for defendant/counter- claimant that the thumb impression is not of Bhule. Interestingly, during the cross examination on the very next date of hearing, PW-1 stated that he cannot identify the thumb impression of Sh. Bhule. However, it is one thing to say that an execution of document is doubtful and other to say that its executant was in some way was unduly induced or defrauded to execute it, especially when execution is not denied in the counter-claim.
24. In addendum, it cannot be lost sight of that besides proving fraud, counter- claimant was also required to prove that he is actually a person claiming through Sh. Bhule and only then he could be held entitled to such relief of cancellation on the basis of fraud committed with Sh. Bhule. This aspect is HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Date: 2022.01.15 Pg 21 of 27 KAUR 17:15:03 +0530 Chander Prakash v. Om Parkash being adjudicated in the forthcoming paragraphs being inter-connected with relief of declaration based upon the right of the counter-claimant in the property.
25. For examining this, documents relied upon by the counter-claim have to be seen. For the sake of convenience, I shall discuss them one by one:
• The first document relied upon by the counter-claimant i.e., Ex.PW-1/D2 GPA executed by Sh. Bhule in favour of Sh. Raj Kumar is a registered doc-
ument and has to be presumed as genuine unless rebutted. Though Sh.
Raj Kumar or any attesting witness was not examined by the counter-
claimant, however, there was not sufficient rebuttal on this document.
• Second set of documents from the chain is Ex.DW-1/1 original sale deed dated 26.05.1999 and Ex.DW-1/2 certified copy of sale deed dated
26.05.1999 executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi. The same being registered can be presumed to be genuine as far as execution is concerned.
• The third set of documents are General Power of Attorney Ex.DW1/3 al- legedly executed by 1 Bigha and 2 Biswa out of Khasra no.45/1 in the name of Sh. Devi Dayal and appending affidavit, agreement to sell, receipt and possession letter (Ex.DW1/4 to Ex.DW1/7). It is indispensable to note that none of the documents bears any date. Further, the documents are not registered. Therefore, only a competent witness could have proved these Digitally signed HELLY by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 22 of 27 2022.01.15 KAUR 17:15:14 +0530 Chander Prakash v. Om Parkash documents. Evidently, DW-1 was neither the attesting witness or party to the documents nor it has come on record that he was present when docu- ments were executed. Though Sh. Suresh Kumar, who seems to be one of the attesting witness, was called as defendant's (counter claimant's) wit- ness, however the documents were not relied by him in his affidavit nor they were shown to him during evidence. Therefore, documents do not stand proved. It is also interesting to note that documents do not mention previous chain or how Sh. Mohan lal is the owner of the property. • Fourth set of documents is Mark DB to DF i.e., the GPA and appending documents executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar qua 3 Bigha and 2 Biswa of Khasra no.50/1. These documents have same status as of Ex DW1/3 to 1/7 being undated, unregistered and also un- proved. Besides, these are mere photocopies and no explanation has come on record for not filing or producing the original. • Fifth set of documents is the GPA dated 23.07.2001 Ex.DW1/8 executed by Sh. Devi Dayal in favour of counter-claimant for 1 Bigha 2 Biswa out of Khasra no. 45/1 along with will, agreement to sell, affidavit, receipt and pos- session letter (Ex.DW1/9 to Ex.DW1/13). Firstly, these documents are of no value as the document on the basis of which Devi Dayal derived interest has not been proved. Secondly, it may be noted that to the contrary there is reference of a registered GPA dated 29.08.2000 executed by Sh. Mohan lal in favour of Sh. Devi Dayal in the first paragraph itself, however, it is incom -
HELLY Digitally signed
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Chander Prakash v. Om Parkash
plete with respect to registration number etc whereas complete details of documents in favour of Mohan Negi have been given. This fact cannot be taken without a pinch of salt, more so because the Ex.DW1/3 has not been proved and the registered GPA mentioned in this document has not been brought on record.
• Coming to the last set of documents i.e., Ex.DW1/14 to Ex.DW1/19 which are GPA and appending documents executed by Sh. Vijay Kumar in favour of counter-claimant, they have exactly same status as that of Ex.DW1/8 to Ex.DW1/13 and therefore observations are hereby reiterated. Moreover, even otherwise, the total area alleged to be sold by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal and Sh. Vijay Kumar is cumulatively 4 Bigha 4 Biswa which is not in consonance with the pleadings and the rest of the record, as the total area has been claimed as 5 Bigha and 4 Biswa. • Besides these documents, two Wills Mark DA and D6, executed by Sh. Mo- han Lal Negi in favour of Sh. Devi Dayal and Sh. Vijay Kumar respectively have been brought on record. The wills despite being registered have been filed merely in a photocopy form rather than in Original or certified form. Even otherwise, a property gets transferred on the basis of a Will once the testator dies, which has not been pleaded by the counter-claimant.
26. On the basis of above analysis, it can be safely concluded that the chain of transfer of title at best can be deemed to be proved till Sh. Mohan Lal Negi HELLY Digitally signed by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date:
Pg 24 of 27 2022.01.15 KAUR 17:15:35 +0530 Chander Prakash v. Om Parkash and not thereafter.
27. Accordingly, the counter-claimant being not proved as person claiming through Sh. Bhule and in absence of any proof of fraud committed with Sh. Bhule, is not entitled to any relief for cancellation of documents.
28. Similarly, since the counter-claimant could not prove any right in the property, therefore even essentials of declaration have not been proved and therefore, counter-claimant cannot be held entitled to such relief.
29. Before concluding, it is also deemed fit to state that as per the very provision of Section 34 of Specific Relief Act, 1963, it is the discretion of the court to grant declaration or not. At this juncture, I deem it prudent to note the bare wording of Section 34 of Specific Relief Act which states:
Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a HELLY Digitally signed by HELLY FUR COUNTERCLAIM NO : 31/19 FUR KAUR Date: 2022.01.15 Pg 25 of 27 KAUR 17:15:46 +0530 Chander Prakash v. Om Parkash trustee.
30. A plain reading of the provision fortifies that relief of declaration is discretionary, though needless to say that the exercise of discretion should be judicial and based on sound principles. Having said that, in view of the above observations on merits of the case, it is not deemed prudent to exercise discretion in favour of the plaintiff who failed to show his right on the basis of which he has sought relief under this issue. ISSUE NO.2 Whether defendant No.1 is entitled to a decree of permanent injunction, as prayed for? OPD.
31. In the relevant part of the prayer clause; counter-claimant has sought permanent injunction restraining the plaintiffs (defendants herein) from transferring the suit property to any other person or to dispossess defendant No.1 (counter-claimant) from the suit land. It is trite to say that as per section 38 of Specific Relief Act, 1963, such an injunction can be granted when plaintiff proves that defendant had an obligation in favour of the plaintiff and the same has been either breached or there is apprehension of breach. In view of the findings under issue No.1, counter- claimant cannot be held entitled to injunction for restraining the plaintiffs/ respondents from transferring the suit property. As far as injunction against dispossession is concerned, it may be mentioned that from the pleadings it transpires that suit property is a vacant land and in case of vacant land, it is Digitally signed HELLY by HELLY FUR KAUR COUNTERCLAIM NO : 31/19 FUR Date: Pg 26 of 27 2022.01.15 KAUR 17:15:55 +0530 Chander Prakash v. Om Parkash a settled law that possession follows the title (Anathula Sudharkar v. P. Buchi Reddy (Dead) by Lrs AIR 2008 SC 2033). Since the counter-claimant could not prove title, he cannot be held to be in possession of the suit property. More specifically because no other specific evidence for possession has been led. In fact counter-claimant has not even filed the site plan of the suit property. Therefore, counter-claimant has failed to discharge the onus of the facts required to be proved for this issue and accordingly, the onus did not shift upon the defendants of the counter-claim.
32. Hence, this issue is decided against the counter-claimant and in favour of defendants.
RELIEF
33. In view of the discussion herein above, it is held that counter-claimant has failed to prove his claim. Therefore, counter-claim of the counter-claimant is dismissed. No order as to costs.
34. Decree sheet be prepared accordingly.
Digitally signed
HELLY by HELLY FUR
35. File be consigned to Record Room. FUR KAUR
Date: 2022.01.15
KAUR 17:16:11 +0530
Announced in the open court (virtually) (HELLY FUR KAUR)
on 15.01.2022 Civil Judge - 08 (Central)/Delhi
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