Delhi District Court
Urmila Bajaj vs M/S Ankur Enterprises And Ors on 28 April, 2026
DLST010043922016
IN THE COURT OF SH. ARUL VARMA,
DISTRICT JUDGE-02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
CS DJ 8962/2016
Filing No. 28795/2016
CNR No. DLST010043922016
In the matter of
Urmila Bajaj (since deceased)
W/o. Sh R.K Bajaj
R/o. DD-9A, Kalkaji
New Delhi-110019
1 (a) Sh. R.K Bajaj (since deceased)
R/o. DD-9A, Kalkaji
New Delhi-110019
1 (b) Mrs Anupam Pasricha
W/o Mr Pradeep Pasricha
R/o C-199, Prem Nagar
Near Gangotri Water supply
Barelilly-243001
1(c) Smt Poonam Katyal
W/o Mr Girish Katyal
R/o L-188, Model Town,
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Urmila Bajaj Vs M/s Ankur Enterprises & Ors
Arul Digitally signed
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Rohtak -124001
1(d) Sh K.M Deepa Bajaj
D/o Shri R.K Bajaj
R/o DD-9A, Kalka Ji
New Delhi-110019
1(e) Sh Gaurav Bajaj
S/o Sh RK Bajaj
R/o DD-9A, Kalkaji
New Delhi-110019
......Plaintiffs
VERSUS
M/s Ankur Enterprises
through Its Partner
Sh Davender Bansal
Having its Office At
1321, Hemkunt Chamber, 89,
Nehru Place, New Delhi-110019
2. Sh Davender Bansal
S/o Late Sh Baij Nath Bansal
R/o K-25-B, Saket
New Delhi
3. Sh Manohar Singh
S/o Late Sh Itwari Lal,
R/o 14, Neb Sarai, New Delhi .......Defendant
Date of Institution : 08.06.2016
Date of reserving the judgment : 18.04.2016
Date of Pronouncement : 28.04.2026
Decision Dismissed
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Urmila Bajaj Vs M/s Ankur Enterprises & Ors
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JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PLAINTIFF..................................................4
II. WRITTEN STATEMENT OF DEFENDANT...............................................7
III. ISSUES FRAMED......................................................................................11
IV. EVIDENCE LED BY PLAINTIFF.............................................................11
V. EVIDENCE LED BY DEFENDANTS........................................................23
VI. ISSUE WISE ANALYSIS & FINDINGS THERETO................................31
i. Issue no 1: Is the suit barred by limitation ?.........................................31
ii. Issue no 2: Is the suit bad for non joinder of parties?..........................32
iii. Issue no 3: Is the plaintiff entitled to decree of possession with respect
to the suit property shown in red in the site plan?....................................34
iv. Issue no 4: If the answer to issue no (iii) is in affirmative, is the
plaintiff entitled to recover mesne profit and if so to extend?...................34
VII. RELIEF......................................................................................................52
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Urmila Bajaj Vs M/s Ankur Enterprises & Ors
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I. BRIEF FACTS/CASE OF THE PLAINTIFF
1. The facts as asseverated by the Plaintiff are hereby succinctly
recapitulated:
2. It was asserted by the plaintiff that he purchased a plot of land
ad-measuring 205 sq yards, bearing no 10, situated in Khasra
no 38, Sl No in Khata Khautani as 158 in Neb Sarai,(suit
property) from defendant no 3 i.e. Manohar Singh on
19.06.1989.
3. It was alleged that the defendant no 3 executed on Agreement
to Sell in favour of plaintiff against full consideration of Rs
40,000/- on 19.06.1989. The amount of Rs 40,000/- was
acknowledged by defendant no 3 vide receipt dated
19.06.1989. It was alleged that Sh Manohar Singh, defendant
no 3 also executed a WILL on the same date bequeathing the
suit property to plaintiff and that the possession of the suit
property was also handed over to the plaintiff by defendant no
3 on19.06.1989. The Will was got registered by the defendant
no 3 before the Sub-Registrar, Noida (currently in district
Gautam Budh Nagar, U.P)
4. It was alleged that apart from the above three documents, the
defendant no 3 executed a General Power of Attorney in
favour of the brother of the plaintiff namely Sh Vinod Ahuja
s/o Late Sh Satpal Ahuja, R/o 172-D, Kamla Nagar Delhi,
empowering him to do acts, things and deed mentioned
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therein. It was further alleged that the said GPA was
registered as document no 1166, Book no IV, Volume no
1232, paged 505/514, dated 20.07.1989 in the office of Sub-
Registrar, at Noida. The defendant no 3 executed Special
Power of Attorney in the name of plaintiff's brother Sh Vinod
Ahuja.
5. It was alleged that the defendant no 3 had put the plaintiff in
possession at the time of execution of documents as
mentioned above. It was stated that since the suit property
was situated in an unauthorized colony, the registration of the
sale deed was not allowed by the Government and for that
reason the defendant no 3 was unable to execute the Sale
Deed in plaintiff's favour and for that reason the documents
viz., Agreement to Sell, Power of Attorney, Will and Receipt
were considered as sufficient documents for transfer of
ownership.
6. It was also brought to the fore that on the same date Sh
Manohar Singh had executed and had got registered General
Power of Attorney in favour of different persons in respect of
the plot no 2, plot no 4, plot no 6, plot no 7, plot no 11, plot
no 12 and plot no 16. It was contended that the plaintiff got to
know that the defendant no 3 had executed the following
General Power of Attorneys on the same date, on which the
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defendant no 3 had executed the documents in favour of the
plaintiff:
(a) Plot no 2 in favour of Sh Shyam Goel, s/o Sh DD Goyal,
R/o BP 41, Shalimar Bagh, Delhi
(b) Plot no 4 in favour of Sh Rajiv Singhal, s/o Sh JP Singhal,
R/o 64, Janpath, New Delhi
(c) Plot no 6 & 7 in favour of Ms Kalpana Jain, d/o Late Sh
Padam Kumar Jain, R/o 18, Pritam Road, Dehradun
(d) Plot no 11 in favour of Sh Anil Kumar Mehensaria, s/o Sh
Gopi Ram Mehensaria, R/o 2-A, Girish Avenue, Kolkata
(e) Plot no 12 in favour of Sh Divakar Gupta, s/o Sh Lalit
Kumar Gupta, R/o D-10/10, Model Town, Delhi
(f) Plot no 16 in favour of Sh M.C Arora, s/o Late Sh
Banwari Lal, R/o C-3/119-A, Janakpuri, New Delhi and
Sh OP Arora s/o Late Sh Jeevan Dass, R/o 60/13, Roop
Nagar, Delhi.
7. It was alleged that besides above-mentioned registered GPAs,
other documents viz., Agreement to Sell, WILL and Receipts
were also executed by the defendant no 3 in favour of
different persons qua the above-mentioned plots. It was
averred that the plaintiff, after taking possession of the plot
from the defendant no 3, raised a boundary wall on the plot to
a height of 7 ft and fixed a door in front of wall and put a lock
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and that plaintiff had also put her name plate on the front wall
of the said plot. It was further submitted that the plaintiff was
in continuous possession of the suit property and a new
number i.e. D-144-C was given by Municipal Corporation of
Delhi and the colony came be to known as Freedom Fighters
Enclave, Neb Sarai, New Delhi.
8. It was averred that on 11.11.2008, the plaintiff and her
husband visited the plot in question and they were shocked to
find out that some construction activity was going on and that
upon asking from the labourers, the plaintiff got to know that
the construction was being done at the instance of defendant
no 2. It was alleged that the plaintiff's husband namely Sh RK
Bajaj contacted to defendant no 2 and it was brought to the
fore that the defendant no 3 had sold the plot in question
again to defendant no 2 and that as per defendant no 2, its
physical possession was given to defendant no 2 by defendant
no 3. Hence, the plaintiff filed the present suit seeking
recovery of possession and for mesne profits.
II. WRITTEN STATEMENT OF DEFENDANT
9. Written Statement was filed on behalf of the Defendant no 1
and 2 wherein all allegations leveled in the plaint were
categorically denied by them. It was also contended that the
defendant no 1 and 2 herein are the lawful and absolute
owners and in possession of the suit property bearing plot no
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D-144 C, Khasra no 38, measuring 209 sq yards, situated at D
blocl, Freedom Fighters Enclave, Neb Sarai, Tehsil Hauz
Khas, New Delhi as the same was purchased by them from its
erstwhile owner i.e. defendant no 3, for a total consideration
of Rs 30,00,000/- (Rupees Thirty Lakhs).
10.It was also submitted that defendant no 3 herein entered into
an agreement to sell on 01.08.2008 along with affidavit/NOC
receipt confirming the payment of consideration amount and
executed a irrevocable General Power of Attorney (with
consideration) as prescribed under Article 48(f) in favour of
defendant no 1/Firm and further executed a WILL in its
favour, both duly registered on 01.08.2008 with Sub-Registrar
V and delivered peaceful physical and vacant possession of
the same to defendant no 1 and 2 on 01.08.2008 against the
possession letter.
11.It was also submitted that the present suit is not maintainable
on account of the fact that the plaintiff is claiming title on the
basis of forged and fabricated documents. It was also
contended that the plaintiff has no locus to file the present suit
as the plaintiff is claiming that an alleged GPA is executed in
favour of one Vinod Ahuja who is not a party to the present
suit and who in fact is a fictitious person. It was also
submitted that the present suit is liable to be rejected under
Order VII Rule 11 (a) & (b)CPC as no cause of action has
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ever arisen in favour of plaintiff as even the forged customary
documents do not grant any title to the plaintiff.
12. Written statement was also filed by the defendant no 3
wherein he also denied all the allegations levelled against him
in the plaint. It was submitted that the defendant no 3 is the
owner of the Khasra no 38 admeasuring 4 bigha 16 biswa in
village Neb Sarai, which has been developed and carved into
24 plots and is presently known as D-Block in Freedom
Fighter Colony. It was also submitted that defendant no 3 is
an illiterate person and a carpenter by profession. It was
contended that local property dealers and land mafia of the
area have illegaly and forcibly taken over the the possession
of his plots worth crores of rupees on the basis of forged,
fabricated and manufactured documents in the name of
fictitious persons using fictitious addresses except for plots no
13,18 and 24.
13.It was submitted that the defendant no 3 has filed various
compliants with police for the said offences. However, the
inaction on the part of local police led him to file criminal
complaint u/s 156 (3) Cr.PC against the property dealers and
police officials including SHO of PS Mehrauli and pursuant
thereto directions were passed for registeration of FIR in two
matters. It was contended that the plaintiff is claiming to be
the owner of the suit property on the basis of forged and
fabricated documents which are not in her name despite the
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fact that the defendant no 3 has never sold his plot to her. It
was stated that hte defendant no 3 has sold his plot to
defendant no 1 through defendant no 2 for consideration.
14.It was submitted that the GPA, SPA and affidavits which are
filed with the present suit, are in the name of Sh Vinod Ahuja
and yet the plaintiff is claiming ownership on their basis. It
was contended that the forged GPA dated 13.06.1989 signed
on 19.06.1989, executed on 11.07.2989, SPA and affidavits
dated 19.06.1989 are in the name of one Vinod Ahuja ,
whereas the forged agreement to Sell, Will Receipt,
Indemnity Bond dated 13.06.1989, signed on 19.06.1989 are
all in the name of plaintiff but it has not been mentioned
anywhere as to why the forged GPA is in the name of one
person and the forged agreement to Sell is in the name of
another i.e. the plaintiff.
15.It was also submitted that present suit is not maintainable as
the plaintiff is claiming right, title and interest on the basis of
forged Agreement to Sell, forged WILL, forged indemnity
bond and receipts in which there is no signature of the
plaintiff and that the same cannot confer any right. It was
contended that the suit is barred for non-joinder of parties as
the plaintiff has filed the suit on behalf of allged GPA holder
without any basis who has not been made a party to the
present suit. Thus, the suit is not maintainable and is liable to
be dismissed.
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III. ISSUES FRAMED
16.Vide order dated 22.07.2009 following issues were framed:-
"1. Is the suit barred by limitation ? OPD
2. Is the suit bad for non joinder of parties? OPD
3. Is the plaintiff entitled to decree of possession with
respect to the suit property shown in red in the site
plan? OPP
4. If the answer to issue no (iii) is in affirmative, is the
plaintiff entitled to recover mesne profit and if so to
extend? OPD
IV. EVIDENCE LED BY PLAINTIFF
17.In the proceeding nine witnesses were examined by plaintiff,
succinct testimonies whereof are as follows:
18.PW-1 Smt Urmila Bajaj: She tendered her evidence by way of
affidavit as PW1/A. She relied upon following documents:
(a) Site plan of the suit property as Ex PW1/1
(b) Amount acknowledged by the defendant no 3 vide written
receipt dated 19.06.1989. The said receipt exhibited as Ex
PW1/2
(c) Agreement to Sell as Ex PW1/3
(d) General Power of Attorney as Ex PW1/4
(e) The Special Power of Attorney as Ex PW1/5
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(f) Two affidavits bearing signatures of Shri Manohar Singh
at points A and B on each page as Ex PW1/6 and Ex
PW1/7
(g) Indemnity Bond as Ex PW1/8
(h) The Registered WILL as Ex PW1/9
(i) Photocopy of Bank draft handed over to defendant no 3
as Ex PW1/10
(j) Original pass book issued to plaintiff by her bank for her
account no 16018 and containing entry of Rs 40,020/-
inclusive of commission of bank for making the draft o n
10.06.1989 as Ex PW1/11
(k) Certified copy of P-5 Form obtained by the plaintiff from
revenue authorities as Ex PW1/12
(l) Hindi Translation of certified copy of P-5 form as Ex
PW1/13 (later it was de-exhibited) and english translation
as Ex PW1/14
(m) Adoption document as Ex PW1/15
(n) Copy of complaint dated 11.11.2008 as Ex PW1/16
(o) Copy of complaint dated 12.11.2008 as Ex PW1/17
(p) Copy of plaint which was received by plaintiff from the
Court of Ld ADJ as Ex PW1/18
(q) Written statement in that suit and a certified copy of the
written statement filed by plaintiff and her husband as Ex
PW1/19
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(r) Copy of reply to the application u/O XXXIX Rule1 and 2
as Ex PW1/20.
19.She deposed in her evidence by way of affidavit that she
purchased a plot of land admeasuring 205 sq yards falling in
Khasra no 38, Khata/Khatoni no 158 in Neb Sarai from the
defendant no 3 Shri Manohar Singh in June 1989. She further
deposed that the defendant no 3 had received full
consideration of Rs 40,000/- from plaintiff through cash order
bearing no 281463 dated 10.06.1989 issued from her savings
bank A/c no 16018 maintained with Punjab National Bank,
Janpath, New Delhi. It was further deposed that this amount
was acknowledged by defendant no 3 vide written receipt
dated 19.06.1989. Plaintiff further stated that the defendant
no 3 executed an Agreement to Sell dated 13.06.1989 in her
favour in respect to the plot bearing no 10, Khasra no 38,
Khatoni No 158, area 205 sq yards, situated in Neb Sarai,
New Delhi and that this Agreement to Sell was signed by the
defendant no 3 on each page at point A in her presence.
20. PW-1 further submitted that defendant no 3 executed a GPA
in respect of the suit property as per the site plan annexed
thereto, in favour of brother Sh Vinod Ahuja, of plaintiff. It
was deposed that the GPA in favour of Sh Vinod Ahuja was
signed by defendant no 3 in her presence and that the
document along with site plan was registered with the office
of Sub-Registrar, Noida, bearing document no 18103 in Book
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no 4, Volume No 1166/1232, at page 334/505/514 on
20.07.1989 by Shri Ram Phal and one Pradhan of Gram
Sabha, Neb Sarai, who were the persons known to the
defendant no 3.
21.It was also submitted that along with agreement to sell, GPA,
the defendant no 3 executed a Special Power of Attorney in
favour of brother of plaintiff on 19.06.1989 and the defendant
no 3 signed the SPA at point A. It was also deposed that the
defendant no 3 also executed affidavits reaffirming therein
that he had sold his rights, interests in the said plot and had
appointed Shri Vinod Ahuja as caretaker of this property. It
was also deposed that the defendant no 3 also executed an
indemnity bond dated 13.06.1989 in favour of plaintiff. She
also deposed that defendant no 3 also executed a WILL dated
13.06.1989 in her favour and that the WILL was registered as
document no 2051, in Book no III, Volume no 85 at pages
131-132 on 07.08.1989 before Sub-Registrar, Noida. It was
also stated that at the time of executing the Agreement to Sell
in her favour, the defendant no. 3 handed over the physical
possession of the suit plot to her on the spot. It was also stated
that at the time the defendant no. 3 Sh. Manohar Singh sold
the plot to her and executed the documents mentioned above,
Sh. Manohar Singh also sold plots bearing Plot no. 2, Plot no.
4, Plot no. 6 & 7, Plot no. 11, Plot No. 12 and Plot no. 16 and
executed similar documents in favour of their respective
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purchasers and registered the General Power of Attorneys on
the same date on which the defendant no. 3 had executed the
documents in her favour in respect of suit property. It was
also stated that she paid the sale consideration in respect of
the suit property to defendant no. 3 through bank draft/ pay
order drawn on Punjab National Bank, Janpath, New Delhi in
which she was maintaining a saving Bank A/c no. 16018 at
that time. It was stated that names of all the power of
attorneys holders who purchased the plots from the defendant
no. 3 and got their General Power of Attorneys registered in
the Noida office of the Sub-Registrar were entered into P-5
Form on the basis of their registered Power of Attorneys.
However, she was in actual physical possession of the plot in
question. It was further stated that since the property was
situated in unauthorized colony, registration of the sale deed
was not allowed by the government and for that reason,
defendant no. 3 was unable to execute the sale deed in her
favour and for that documents viz. Agreement to Sell, General
Power of Attorney, Special Power of Attorney, Will, Receipt
were considered to be sufficient documents for transfer of the
ownership. The Power of Attorney in favour of her brother
Sh. Vinod Ahuja and Will in her favour were got registered in
Registrar's office at Noida since at that time Sub-Registrar at
Delhi were not entertaining the documents pertaining to the
unauthorized colonies in Delhi. It was further stated that
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physical possession of the plot as delineated in the red colour
in the site plan, which forms part of the General Power of
Attorney was given to her on spot by the defendant no. 3. it
was stated that after taking physical possession of the plot
from defendant no. 3, she raised a boundary wall on the plot
to a height of 7 ft. and had fixed a door in the front wall and
had put her lock. It was further stated that he had also put her
name plate on the front gate of the plot. It was stated that on
11.11.2008, she and her husband visited the plot i.e. suit
property and both of them were shocked to find out that some
construction actively was going on. It was further stated that
she came to know from the labourers working there that
construction was in progress at the instance of defendant no.
2. It was stated that on 12.11.2008, she made another
complaint against defendants to SHO, PS Mehrauli. It was
further stated that defendants no. 1 and 2 filed a suit for
permanent injunction against her, her husband and impleaded
Sh. Manohar Singh as defendant no. 3 before Ld. ADJ, Patiala
House Court, New Delhi.
22.She was cross examined by Ld Counsel for defendants at
length.
23. PW-2 Sh. R.K. Bajaj - He tendered his evidence by way of
affidavit as PW1/A. He relied upon documents Ex. PW-1/1 to
Ex. PW-1/20. He deposed in the evidence by way of affidavit
as deposed by PW-1.
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He was cross examined by Ld Counsel for defendants at
length.
24. PW ASI Ved Prkash (erroneously numbered as PW-2) - He
was the summoned witness and brought the summoned record
i.e. original complaints dated 11.11.2008 and 12.11.2008
received in the police station. The carbon copy of complaint
dated 11.11.2008 was exhibited as EX. PW-2/1. Complaint
dated 11.11.2008 also bears date of 12.11.2008 which was
exhibited as Ex. PW-2/1A. Typed copy of complaint dated
12.11.2008 was also exhibited as Ex. PW-2/2. Photocopy of
back side of complaint dated 12.11.2008 containing various
office noting was exhibited as Ex. PW-2/2A. He was cross
examined by Ld Counsel for defendants.
25.PW-3 Vinod Ahuja: He tendered his evidence by way of
affidavit as Ex. PW3/A. He relied upon documents already
relied by PW-2. He deposed in his evidence by way of
affidavit that the defendant no 3 had received full
consideration of Rs 40,000/- from the plaintiff through cash
order bearing no 281463 dated 10.06.1989 issued from her
savings Bank A/c no 16018 maintained with Punjab National
Bank, Janpath, New Delhi. It was deposed that the amount
was acknowledged by defendant no 3 vide written receipt
dated 19.06.1989, which bore signature of defendant no 3 in
his presence as he had accompanied her sister at the time of
execution of the said document.
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26.It was also deposed by PW-3 that defendant no 3 executed an
Agreement to Sell dated 13.06.1989 in favour of plaintiff in
respect to the plot bearing no 10 Khasra, no 38, Khatoni no
158, area 205 sq yards, situated at Neb Sarai, New Delhi. This
Agreement to Sell was signed by the defendant no 3 on each
page at point A in his presence as her sister was accompanied
by him at the time of execution of the said document. PW-3
averred that Sh Manmohan Singh /defendant no 3 executed a
General Power of Attorney in respect of the suit property as
per the site plan, in favour of PW-3 at the instance of his
sister/ plaintiff and that the said General Power of Attorney in
his favour was signed by defendant no 3 at point A on each
page as the same were put by defendant no 3 in his presence.
He also deposed that this document along with the site plan
was registered with the office of Sub-Registrar, Noida,
bearing document no 18103 in Book no 4, volume no
1166/1232 at page 334/505/514 on 20.07.1989. The General
Power of Attorney was witnessed by Shr Ram Phal and one
Pradhan of Gram Sabha, Neb Sarai, who were the known
person to defendant no 3.
27.PW-3 also averred that defendant no 3 also executed
affidavits reaffirming therein that he had sold his rights,
interest in the said plot and had appointed him as a caretaker
of this property. It was also stated that Shri Manohar Singh
also executed an Indemnity Bond dated 13.06.1989 in favour
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of plaintiff by signing on the same at point A on each page.
He deposed that the witnesses signed on the Indemnity Bond
were known to Shri Manohar Singh. PW-3 deposed that
defendant no 3 also executed WILL dated 13.06.1989 in
favour of plaintiff, which was registered as document no 2051
in Book no III, Vol no 85 at pages 131-132 on 07.08.1989
before Sub-Registrar, Noida. It was averred that at the time of
executing the Agreement to Sell in favour of plaintiff, the
defendant no 3 handed over the physical possession of the suit
plot to the plaintiff on the spot. This witness contended that
the plaintiff is her real sister and their parents' names are Shr
Sat Pal Ahuja and Smt Kailash Ahuja. The elder brother of his
father Shr Dharam Pal Ahuja had adopted the plaintiff. He
was cross-examined by the Ld. Counsel for defendants at
length.
28.PW-4 HC Sumer Singh: He was the summoned witness from
PS Mehrauli. He had brought the summoned record
pertaining to FIR no. 516/5, PS Mehrauli, Ex. PW-4/1. He
had also brought the summoned record pertaining to FIR no.
603/2, PS Mehrauli, Ex. PW-4/2. He had also brought the
summoned record pertaining to FIR no. 624/8, PS Mehrauli,
Ex. PW-4/3. He had also brought the summoned record
pertaining to FIR no. 6283/99, PS Mehrauli, Ex. PW-4/4. He
was cross-examined by the Ld Counsel for defendant no. 3.
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29.PW-5 Sh. Jai Shankar Kaushik: He was the summoned
witness from Sub-Registrar-II, Noida. He had brought the
summoned record pertaining to GPA No. 18102, dated
18.09.1989 registered in Additional Book No. IV, volume no.
1166/1232 from pages 334/495-504 dated 20.07.1989.
Certified copy of the same was exhibited as Ex. PW5/1. He
had also brought the summoned record pertaining to GPA No.
18104, dated 18.09.1989 registered in Additional Book No.
IV, volume no. 1166/1232 from pages 334/515-524 dated
20.07.1989. Certified copy of the same was exhibited as Ex.
PW5/2. He had also brought the summoned record pertaining
to GPA No. 18105, dated 18.09.1989 registered in Additional
Book No. IV, volume no. 1166/1232 from pages 334/525-536
dated 20.07.1989. Certified copy of the same was exhibited as
Ex. PW5/3. He had also brought the summoned record
pertaining to GPA No. 18106, dated 18.09.1989 registered in
Additional Book No. IV, volume no. 1166/1232 from pages
334/537-544 dated 20.07.1989. Certified copy of the same is
exhibited as Ex. PW5/4. He had also brought the summoned
record pertaining to GPA No. 18107, dated 18.09.1989
registered in Additional Book No. IV, volume no. 1166/1232
from pages 334/545-554 dated 20.07.1989. Certified copy of
the same exhibited as Ex. PW5/5. He had also brought the
summoned record pertaining to GPA No. 18108, dated
18.09.1989 registered in Additional Book No. IV, volume no.
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1166/1232 from pages 334/555-566 dated 20.07.1989.
Certified copy of the same was exhibited as Ex. PW5/6. He
had also brought the summoned record pertaining to WILL,
dated 13.06.1989 by Manohar Singh bearing document no.
2051/89 registered at Book No. III, volume no. 85 from pages
131-132, registered on 07.08.1989. Copy of the same is
exhibited as Ex. PW1/9. He had also brought the summoned
record pertaining to GPA No. 18103, dated 18.09.1989
registered in Additional Book No. IV, volume no. 1166/1232
from pages 334/505-514 dated 20.07.1989. Original of the
same is already on record, which is Ex. PW1/4. He was cross-
examined by the Ld Counsel for defendant no. 3.
30.PW Sh. Chatar Pal Singh (erroneously numbered as PW-5):
He was the summoned witness from Record Room, Tehsil
Hauz Khas, Mehrauli Tehsil. He had brought the summoned
record i.e. original Form P-5 of Khasra no. 38, Village Neb
Sarai. He deposed that the certified copy Ex. PW-1/12 has
been issued by his office.
31.He was cross-examined by the Ld Counsel for defendant no.
3.
32.PW-6 Sh. Vinod Sharma, Ahlmad: He was the summoned
witness from the Court of Sh. Vaibhav Mehta, Ld. MM-05,
South District, Saket. He had brought the summoned record
i.e. CR Case no. 2034477/2016 titled State vs. Manohar Singh
in FIR no. 624/2008, PS Mehrauli. He deposed that he has
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seen the FSL report no. 2010/D-0396/1565 dated 07.02.2012.
He further deposed that he has compared with the original
FSL report that is filed in above mentioned criminal case. He
deposed that the same is the certified copy of the original.
The certified copy of the FSL report was exhibited as Ex.
PW-6/1.
33.Opportunity was granted to Ld Counsel for defendant no. 3
for cross-examination, however, he has not availed the
opportunity.
34.PW7-Sh. Devak Ram, Retired Assistant Director
(Documents): He was the summoned witness from the FSL,
Rohini. He deposed that he had conducted the examination of
the signature in dispute i.e. signatures of Sh. Manohar Singh
and submitted by report dated 06.02.2012 with covering letter
dated 07.02.2012. He further deposed that his original report
dated 06.02.2012 is placed on the judicial records of the
criminal complaint bearing CR Case No.18/1/2013 (old
number) & CNR No.2034477/2016 (new number) titled as
State vs. Manohar Singh, FIR No.624/2008, pending in the
Court of Sh. Vaibhav Mehta, Learned MM. He deposed that
the report was prepared on the basis of the xeroxed (colour
copies of the documents sent for examination), which original
documents Mark Q1 to Q26 were examined in the Hon'ble
High Court of Sh. V. K. Gupta, Joint Registrar, High Court of
Delhi in the presence of DIO and got photographed by
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Government Photographer on 29.04.2011. He deposed that
the further examination of the signatures were done in the lab
with the help of photographic prints. He deposed that he had
examined the documents on the judicial file as mentioned
above in Hon'ble High Court itself and asked the
photographer accompanying to take the colour photographs of
the original document Q1 to Q26. The photographer was from
the FSL department itself. He further deposed that he has
seen the report prepared by him which is running into 2 pages
and bears his signatures at points A & B. The certified copy of
the FSL report dated 07.02.2012 is already exhibited as
Ex.PW6/1 (page 1 to 4). He deposed that after examination
the case report and the documents, including the documents
bearing the admitted signatures and the document in question,
as mentioned in the report, were collected by authorized
messenger of PS Mehrauli. He was cross-examined by the Ld.
Counsel for defendants at length.
V. EVIDENCE LED BY DEFENDANTS
35.In the proceeding 06 witnesses were examined by defendant
no. 1, 2 and 3 succinct testimony whereof is as follows:
36.DW1- Devinder Bansal: He tendered his evidence by way of
affidavit as Ex. DW-1/A. He relied on the following
documents:
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(a) Original Agreement to Sell dated 01.08.2008 as Ex
DW1/1
(b) Original Affidavit dated 01.08.2008 as Ex DW1/2
(c) Original receipt dated 01.08.2008 as Ex DW1/3
(d) Possession letter dated 01.08.2008 as Ex Dw1/4
(e) Original GPA dated 01.08.2008 as Ex DW1/5
(f) Original WiLL dated 04.08.2008 as Ex DW1/6
37. He deposed in his evidence filed by way of affidavit that
defendants no 1 and 2 are the owners and in possession of the
property bearing plot no D 144C, Khasra no 38 measuring
209 sq yards, situated at D Block, Freedom Fighters Enclave,
Neb Sarai, Tehsil Hauz Khas, New Delhi, having purchased
the same from defendant no 3 herein for a total consideration
amount of Rs 30 Lakhs on the basis of Agreement to Sell
executed on 01.08.2008 along with affidavit/NOC receipt
confirming the payment of consideration amount and
executed a irrevocable General Power of Attorney in favour
of defendant no 1 firm and further executed a WILL in its
favour, both duly registered on 01.08.2009 with Sub-Registrar
V, and delivered peaceful physical and vacant possession of
the same to defendants no 1 and 2 on 01.08.2008.
38.He further deposed that on 11.11.2008, plaintiff no 1 and 2
along with some unknown persons came to the suit property
and started threatening the contractor Shri Purushotttam
Gupta to whom the plaintiff firm assigned the construction
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work at site and the persons present at site. Both the plaintiff
no 1 and 2 and other persons accompanied with them and
interrupted the construction work being carried out by the
defendant no 1 firm on the pretext that the property in
question belonged to them. It was also deposed that Shri
Devender Bansal reported the matter to PS Mehrauli in
writing along with documents executed by the erstwhile
owner in favour of defendant no 1 firm. This witness also
deposed that the plaintiff has no locus or competent to file the
present suit as the plaintiff is claiming that an alleged GPA is
executed in favour of one Mr Vinod Ahuja, who is not a party
to the present suit and who, in fact, is a fictitious person. It
was also deposed by DW-1 that the plaintiff is claiming title
on the basis of forged and fabricated documents. He also
deposed that the defendant no 3 never executed any document
in favour of anybody except defendant no 1 and 2 with
respect to the suit property or any of the properties
mentioned. He also deposed that defendant no 3 never sold
the suit property to plaintiff or supplied any site plan
19.06.1989 and that all the documents filed along with the
plaint are forged, fabricated and manufactured. It was averred
that the defendant no 3 had not handed over the possession of
the suit property to plaintiff and that the site plan of the suit
property as filed by the plaintiff is also forged and fabricated
one as the same is a laser print out and in 1989 there was no
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laser printer available. DW-1 deposed that the defendant no 3
was in continuous possession of the plot till 05.08.2008 when
he sold the plot to defendant no 1. He was cross examined by
Ld Counsel for plaintiff at length.
39. D1W2-Ms Meenakshi: She deposed that she was the
summoned witnesses. She had brought the details of account
holder in Saving Bank account no. 1546000100044247. Same
is now exhibited as Ex. D1W2/A. Further she had also
brought the statement of account of aforesaid account from
01.04.2008 to 30.09.2008 supported with certificate u/s 65B
of Indian Evidence Act and certificate u/s 2A of the Banker
Books Evidence Act. Statement of account which was
exhibited as Ex. D1W2/B. Certificate u/s 65B of Indian
Evidence Act was exhibited as Ex. D1W2/C. Certificate u/s
2A of the Banker Books Evidence Act was exhibited as Ex.
D1W2/D. She further deposed that as far account statement of
the aforesaid account from 10.06.89 to 10.06.89 was not
traceable and for the same a certificate was filed and same
was proved as Ex. D1W2/E.
40.During examination in chief this witness was asked whether it
was correct that the entries in Ex. D1W2/B at point A to K are
the entries which had credited in the account of Manohar
Singh maintained in the Branch? (objected by Ld. counsel for
plaintiff being content of document), to which she averred
that the entries in Ex. D1W2/B at point A to K were the
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entries which had credited in the account of Manohar Singh
maintained in the Branch. She was cross-examined by the Ld.
Counsel for defendant no. 3 and Ld. counsel for plaintiff.
41. D3W3- Sh. Omkar Verma, Registration Clerk, ID Code- 216,
Sub-Registrar-II, Noida, U.P. He was the summoned witness.
He had brought the office record of documents registered at
our Sub-Registrar Office but he had not brought any Peshi
Register (Attendance Register of the person executing any
document). However, he had brought the document which
were registered with respect to the suit property. The said
documents were GPA dated 20.07.1989 which was marked as
Ex.PW1/4. The document i.e. certified copy of GPA, which
he had already produced before the court from the office
record was proved as Ex.D3W3/1.
42. It was deposed that in the said certified copy of their office,
the seal of notary existed at Point A, B, C and D and further
Ex.PW1/4 on the court record did not exist in their record.
However, the site plan which was exhibited as Ex.PW1/1 did
not exist in their record. The other documents of other
persons registered on the same date did not bear any notary
seal in any document. The Will which was registered at the
office of Sub-Registrar did not bear the signature and date of
the executor or testator but was registered on 07.08.1989. The
document i.e. certified copy of the Will dated 07.08.1989 was
proved as Ex.D3W3/2.
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43. This witness deposed that he did not have any personal
knowledge of the abovesaid documents and of the present
case. He was cross-examined by the Ld. Counsel for plaintiff.
44. DW-2- Sh Manohar Singh: He tendered his evidence by way
of affidavit as Ex DW2/A. He relied upon following
documents:
(a) Copy of order dated 16.12.2008 for registration of FIR
against the plaintiff, land mafia and SHO and other police
personals of PS Mehrauli as Mark DW2/1
(b) Certified copy of GPA registered with Sub-Registrar
Office Noida dated 13.06.1989 Ex DW2/2
(c) Certified copy of WILL registered with Sub-Registrar
Office Noida dated 11.07.1989 as Ex DW2/3
(d) A chart of certain forged documents filed by the plaintiff
in the present suit as Ex DW2/4.
(e) Certified copy of cover page of chargesheet in FIR no
603/02, PS Mehrauli as Ex DW2/5.
(f) Certified copy of statement Kanungo Sh Gyan Chand in
FIR no 603/2002, PS Mehrauli, as Ex DW2/6.
(g) Certified copy of statement Kanungo Jai Kishan in FIR
No 603/02, PS Mehrauli, as Ex DW2/7.
(h) Certified copy of statement Halka Patwari Sh Bhanwar
Singh in FIR no 603/02, PS Mehrauli as Ex DW2/8
(i) Certified copy of statement of IO Arun Kumar in FIR no
603/02, PS Mehrauli as Ex DW2/9
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(j) Certified copy of statement of Sh Rakesh Gupta, Reader
SDR/RA, Hauz Khas in FIR no 603/02, PS Mehrauli as
Ex DW2/10.
(k) Certified copy of statement of Sh Vimar Kumar, Head
Clerk, Office of Sub-Registrar V, Mehrauli, New Delhi, in
FIR no 603/02, PS Mehrauli, Ex DW2/11.
(l) Certified copy of order and Judgment dated 14.03.2012 of
the then Ld ACMM, South, in FIR no 603/02, PS
Mehrauli as Ex DW2/12.
45. It was deposed by this witness that he had sole the property
bearing plot no 10, D144C admeasuring 209 sq yards to
defendant no 1 through defendant no 2 for a total sale
consideration of Rs 30 Lakhs. He further deposed that he
entered into an agreement to sell on 01.08.2008 and executed
an affidavit /NOC and receipt confirming payment of
consideration amount and executed an irrevocable GPA in
favour of M/s Ankur Enterprises and also executed a WILL
dated 01.08.2008 which has been registered with Sub-
Registrar V and delivered peaceful physical and vacant
possession of my plot to defendant no 1 through defendant no
2 namely Sh Davender Bansal. DW-3 was cross-examined by
the Ld Counsel for plaintiff.
46. D3W1- Sh Vishal Arora, Judicial Assistant: He was the
summoned witness. He had brought the summoned record i.e.
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file record of the Old CC No 350/1/08 and new no 465081/16
titled Manohar Singh & Anr Vs KP Kukreti (SH) & Ors. He
deposed that he had compared the certified copies with the
file record of Old CC No 350/1/08 and new no 465081/16
titled Manohar Singh & Anr Vs KP Kukreti (SH) & Ors
which was already proved as Mark DW2/1 and was exhibited
as Ex D3W1/1.
47. D3W3- Sh Anil Popli, Senior Judicial Assistant: He deposed
that he was the summoned witness in the present matter. He
had brought the summoned record i.e. file record of FIR No.
603/02, P.S. Mehrauli (CB) in Criminal Appeal No.
1222/2013 titled S.P. Sharma Vs. State & Ors. He further
deposed that he had compared the certified copies with the
file record of file record of FIR No. 603/02, P.S. Mehrauli
(CB) in Criminal Appeal No. 1222/2013 titled S.P. Sharma
Vs. State & Ors. which was already Ex. DW2/5 (the cover
page of charge sheet), Ex. DW2/6 (statement of PW3 Sh.
Gyan Chand, Kanoongo), Ex. DW2/7 (statement of PW4 Sh.
Jai Kishan, Kanoongo), Ex. DW2/8 (statement of PW7 Sh.
Bhanwar Singh), Ex. DW2/9 (statement of PW6 SI Arun
Kumar),Ex. DW2/10 (statement of PW8 Sh. Rakesh Gupta),
Ex. DW2/11 (statement of DW1 Sh. Vimal Kumar) and Ex.
DW2/12 (Judgment and order dated 14.03.2012 passed by Sh.
Mukesh Kumar, Ld. ACMM, South, Saket, Delhi).
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48. Both the Ld Counsels argued extensively and filed their
respective written submissions in this regard, and the same
are not being reproduced herein for the sake of brevity
VI. ISSUE WISE ANALYSIS & FINDINGS THERETO
i. Issue no 1: Is the suit barred by limitation ?
49. As would be apparent from a perusal of the discussion in
succeeding paragraphs under the heading 'Issue no 3 and
Issue no 4', it is clear that the present suit was not filed under
Section 6 of the Specific Relief Act, 1963 and it was merely
a suit seeking inter alia recovery of possession. Ld Counsel
for plaintiff had contended that the plaintiff was in
possession of suit property prior to 01.08.2008 and thereafter
the defendant no 1 and 2 had taken over the possession of the
suit property illegally, and by tresspassing thereinto.
50. At this juncture, it would be apt to refer to Article 64 and 65
of the Limitation Act. The same are reproduced hereunder:
64. For possession of Twelve years. The date of
immovable property dispossession.
based on previous
possession and not on
title, when the
plaintiff while in
possession of the
property has been
dispossessed.
65. For possession of Twelve years When the
immovable property possession of the
or any interest therein defendant becomes
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adverse to the
plaintiff.
51. The period of limitation for filing a suit is therefore 12 years
from the date of dispossesion. The date of alleged
dispossession is 01.08.2008 and the present suit was filed in
December, 2008. Therefore, the suit has been filed within the
stipulated period of limitation. Accordingly, this issue is
decided in favour of plaintiff and against the defendants.
ii. Issue no 2: Is the suit bad for non joinder of parties?
52. Ld Counsel for defendant had contended that the suit is bad
for non joinder of necessary party namely Sh Vinod Ahuja.
This Court finds force in the contention of Ld Counsel for
defendant inasmuch the alleged title documents such as
General Power of Attorney, Special Power of Attorney and
affidavit were executed in favour of Sh Vinod Ahuja and he
has not been made a party to the proceedings.
53. Adverting to the law with respect to necessary and property
party, it would be apt to reproduce Vikrant Educational and
Social Welfare Society through its Chairman verus State of
Madhya Pradesh and Ors Writ petition no 23981 of 2019
wherein it was held as thus:
"10. "Necessary party" has been considered by the Supreme Court in
the case of Swapna Mohanty Vs. State of Odisha and others reported in
(2018) 17 SCC 621 and it has been held as under:-
"12. .............A person whose presence before a
forum may be necessary in order to enable it
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effectually and completely to adjudicate upon
and settle all the questions involved in the
dispute is a necessary party. A necessary party is
one without whom no order can be made
effectively. A proper party is one in whose
absence an effective order can be made, but
whose presence is necessary for complete and
final decision on the question involved in the
proceedings. [See: Udit Narain Singh
Malpaharia v. Board of Revenue [Udit Narain
Singh Malpaharia v. Board of Revenue, AIR
1963 SC 786]."
The Supreme Court in the case of State of Assam Vs. Union of India
and others reported in (2010) 10 SCC 408 has held as under:-
"16. We respectfully agree with the
observations made by this Court in Udit
Narain case [AIR 1963 SC 786] and adopt the
same. We may add that the law is now well
settled that a necessary party is one without
whom, no order can be made effectively and a
proper party is one in whose absence an
effective order can be made but whose
presence is necessary for a complete and final
decision of the question involved in the
proceeding."
54. A perusal of Ex PW1/5 i.e. Special Power of Attorney
executed by defendant no 3 had granted Vinod Ahuja, the
rights inter alia to get the property mutated. Further, a perusal
of Ex PW1/4, General Power of Attorney, reveals that
defendant no 3 Manohar Singh had appointed Sh Vinod Ahuja
as his lawful legal attorney to have inter alia physical
possession of the property and to sell / transfer the property.
Further, vide affidavit Ex PW1/6, defendant no 3 Manohar
Singh had deposed that he had sold his right interest, and title
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in the suit property to Vinod Ahuja and had delivered vacant
physical possession thereof to him. Further, vide affidavit Ex
PW1/7, Defendant no 3 Manohar Singh had deposed that he
had appointed Vinod Ahuja as a care taker of the suit
property. In view of the above, it is apparent that to establish
the case of the plaintiff, especially qua his possessory rights,
Vinod Ahuja would have been a necessary party, and
therefore by not impleading him, the suit is bad for non
joinder of necessary party. Accordingly, issue no 2 is decided
in favour of the defendants and against the plaintiff.
iii. Issue no 3: Is the plaintiff entitled to decree of possession
with respect to the suit property shown in red in the site plan?
iv. Issue no 4: If the answer to issue no (iii) is in affirmative, is
the plaintiff entitled to recover mesne profit and if so to extend?
55. The above two issues are being dealt with collectively.
MAINTAINABILITY OF THE SUIT ON ACCOUNT OF
ABSENCE OF PLEA QUA RELIEF OF DECLARATION.
56. It was vociferously contended by Ld Counsel for plaintiff
that the present suit was filed only for possession and
recovery of mesne profit, without seeking a prayer for
declaration. Ld Counsel for plaintiff had contended that the
suit ought to be dismissed on this score inasmuch as a cloud
had been raised on the title of the plaintiff qua the property in
question and therefore it was imperative for the plaintiff to
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incorporate a prayer for declaration of his title to the suit
property.
57. In this context, it would be apt to refer to law in this regard. In
Anathula Sudhakar Vs P Buchi Reddy (2008) 4 SCC 594, the
Hon'ble Court had observed as thus:
"13.The general principles as to when a mere suit for permanent
injunction will lie, and when it is necessary to file a suit for
declaration and/or possession with injunction as a consequential
relief, are well settled.
We may refer to them briefly.
13.1 Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to
protect his possession against any person who does
not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not
entitled to an injunction against the rightful owner.
13.2 Where the title of the plaintiff is not disputed, but
he is not in possession, his remedy is to file a suit for
possession and seek in addition, if necessary, an
injunction. A person out of possession, cannot seek
the relief of injunction simpliciter, without claiming
the relief of possession.
13.3 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.
14. We may however clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge
to plaintiff's title raises a cloud on the title of plaintiff to the
property. A cloud is said to raise over a person's title, when some
apparent defect in his title to a property, or when some prima
facie right of a third party over it, is made out or shown. An
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action for declaration, is the remedy to remove the cloud on the
title to the property. On the other hand, where the plaintiff has
clear title supported by documents, if a trespasser without any
claim to title or an interloper without any apparent title, merely
denies the plaintiff's title, it does not amount to raising a cloud
over the title of the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for injunction may be
sufficient. 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 need for the plaintiff, to amend the plaint and convert the suit
into one for declaration. Alternatively, he may withdraw the suit
for bare injunction, with permission of the court to file a
comprehensive suit for declaration and injunction. He may file
the suit for declaration with consequential relief, even after the
suit for injunction is dismissed, where the suit raised only the
issue of possession and not any issue of title."
58. Further, in Jharkhand State of Housing Board Vs Didar Singh
& Anr 2019 (17) SCC 692, the Hon'ble Court held as thus:
10. The issue that fall for our consideration is: "Whether the
suit for permanent injunction is maintainable when the
defendant disputes the title of the plaintiff?"
11. It is well settled by catena of judgments of this Court that
in each and every case where the defendant disputes the title of
the plaintiff it is not necessary that in all those cases plaintiff
has to seek the relief of declaration. A suit for mere injunction
does not lie only when the defendant raises a genuine dispute
with regard to title and when he raises a cloud over the title of
the plaintiff, then necessarily in those circumstances, plaintiff
cannot maintain a suit for bare injunction.
12. In the facts of the case the defendant Board by relying
upon the land acquisition proceedings and the possession
certificate could successfully raise cloud over the title of the
plaintiff and in those circumstances plaintiff ought to have
sought for the relief of declaration. The courts below erred in
entertaining the suit for injunction."
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59. The above judgments make it clear that wherever a dispute
qua the title with respect to the suit property is raised, or
where a cloud on the title of the plaintiff qua the suit property
is raised, the plaintiff will have to sue for a declaration of title
and a consequential relief of injunction along with a prayer
for possession.
60. A cloud on the title of the plaintiff can be said to have been
raised where the defendant asserts his title to the suit
property. In the present case, the defendant no 1 and 2
contended that they are the owners and were in possession of
the suit property, having purchased the same from Defendant
no 3 Sh Manohar Singh for a total consideration of Rs
30,00,000/- vide Agreement to Sell dated 01.08.2008 along
with affidavit/NOC, receipt affirming the payment of
consideration amount, execution of irrevocable General
Power of Attorney with consideration and a duly executed
and registered WILL, registered on 01.08.2008 before Sub-
Registrar-V. It was also contended that the defendant no 3 is
the recorded Bhumidar/owner of the suit property and he had
never sold or parted with possession of the suit property to the
plaintiff at any point of time. In light of the above demur
raised by defendant, it is clear that a cloud has been raised
over the plaintiff's title.
61. Under these circumstances, the plaintiff could have
withdrawn the suit with leave to file a comprehensive suit for
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declaration, possession and injunction. However, the plaintiff
did not do so. Therefore, in view of the above referred
verdicts, the suit ought to be dismissed.
WHETHER THE PLAINTIFF DISCHARGED HIS
BURDEN OF PROOF OF OWNERSHIP QUA SUIT
PROPERTY
62. The plaintiff had contended that he was the owner of the suit
property as defendant no 3 had executed the Agreement to
Sell dated 19.06.1989 i.e. Ex PW1/3 in favour of the plaintiff
against the full consideration of Rs 40,000/-. It was contended
that the amount of Rs 40,000/- was acknowledged by the
defendant no 3 vide receipt dated 19.06.1989 i.e. Ex PW1/2 It
was also contended that the defendant no 3 had executed a
WILL also bequeathing the property to the plaintiff and WILL
was duly registered before the Sub-Registrar i.e. Ex PW1/9.
Thus, the plaintiff asserted the ownership qua the suit
property on the basis of customary documents viz., WILL,
Agreement to Sell, General Power of Attorney, receipt and
possession letter.
63. It is trite law that title does not confer on the basis of these
documents. Though the Ld Counsel for plaintiff had placed
reliance on several judgments, it would be suffice to refer to
Amit Jain & Ors Vs Anila Jain & Ors CS(OS) 82/2025 & I.A
3481/2025, which has exposited the law in detail, relevant
extracts whereof are reproduced hereunder:
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"12. Notwithstanding the aforesaid observations qua the doubtful
existence of the 1982 ATS and the finding on the illegality of the
transaction reflected in the 1982 ATS, in the opinion of this Court, the
customary sale documents relied upon by the Plaintiffs do not entitle the
Plaintiffs to seek a declaratory title in law, as such customary
documents do not create any title in favour of the proposed Vendees in
law. This is well settled and, in this regard, it would be pertinent to refer
to judgment of the Supreme Court in Shakil Ahmed v. Syed Akhlaq
Hussain , wherein the Supreme Court has reiterated that no
right/title/interest in an immovable property can be created or
transferred in favour of a proposed buyer without a registered document
as contemplated in Section 54 of the Transfer of Property Act, 1882
('TP Act'). In this judgment the Court negated the claim of
proprietorship in the immovable property made by the plaintiff therein
based on similar customary documents. The Supreme Court referred to
its earlier judgments starting from Suraj Lamps & Industries Pvt. Ltd. v.
State of Haryana , Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar
and Paul Rubber Industries Private Limited v. Amit Chand Mitra to hold
that no ownership rights were created in favour of a plaintiff on the
basis of such customary documents. The relevant portion of the
judgment reads as under:
"5. The learned counsel for the appellant made the
following submissions: 5.1. The Court below erred
in decreeing the suit for possession and mesne
profits on the basis of unregistered documents
namely Agreement to Sell, Power of Attorney,
Affidavit and a Will.
.....
8. On the other hand, learned counsel for the respondent submitted that all the documents relied upon by the respondent as basis for the suit were the customary documents and they conferred full title on the respondent to be the owner of the property in question and, therefore, he can maintain the suit.
9. It was also submitted that there was a prohibition of registration of documents of transfer/conveyance with respect to the area where the property in question is situate and, therefore, the transfers affected under the customary documents was sufficient to confer title on the respondent. It was also submitted that the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana, which was of the year 2011, had CS DJ 8962/2016 Page. 39 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Arul Digitally signed by Arul Varma Varma Date: 2026.04.28 17:51:31 +0530 prospective application and would not have any bearing on the title of the respondents which came to him under the customary documents executed in the year 2008 much prior to the judgment in the case of Suraj Lamps & Industries (supra).
10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court: (i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar (ii). Balram Singh v. Kelo Devi (iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra. 12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, CS DJ 8962/2016 Page. 40 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Digitally signed by Arul Varma Arul Date:
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who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on nonregistration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
(Emphasis supplied) 12.1. Pertinently, in the aforesaid judgment, the Supreme Court at paragraph '9' also noted the submission of the plaintiff therein that the customary documents were executed in Delhi as per prevalent practice due to restriction on transfers by registration of conveyance in the said area. The Supreme Court expressly rejected the said contention of the plaintiff therein and unequivocally held that even restrictions on registration of documents cannot be overcome by a party and no transfer of title would be effective in the absence of registered documents as contemplated under Section 54 of the TP Act. 12.3 Another Co-ordinate Bench of this Court in the case of Wg. Cdr. (Retd.) Sh. Yeshvir Singh Tomar v. Dr. O.P. Kohli8 , held that even if one of the customary documents is registered, the same would not confer rights in the nature of ownership in the property and the plaintiff cannot maintain a suit for declaration of title. The Court held that the plaintiff has to seek specific performance on the basis of the customary documents. The relevant portion of the said judgment reads as under:
" 2. This is a suit for declaration and possession filed by the plaintiff in which ownership rights are claimed in the suit property admeasuring 4 Bighas and 3 Biswas in Khasra Nos. 1800/4 (0-14), 1802/1 (1-11), 1802/2 (1-18) along with all super structures/house situated at DLF Farms in revenue estate of Chattarpur, Tehsil Hauz Khas, New Delhi.
3. Plaintiff claims ownership rights on the basis of an Agreement to Sell, Power of Attorney, Will etc. dated 06.11.2006. Admittedly, the document being the Agreement to Sell is an unregistered document and does not bear the requisite stamp duty under Article 23A of the Indian Stamp Act, 1899 as applicable to Delhi.
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5. .....In view of the above, since the Agreement to Sell in question is an unregistered and unstamped Agreement to Sell, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of ownership in the property....
6. In view of the aforesaid position, I put it to the counsel for the plaintiff that why this Court should unnecessarily dismiss the present suit and it would be preferable if a correct suit for specific performance be filed, however, counsel for the plaintiff states that the case be decided on merits. 7. In view of the aforesaid settled position of law, this suit is not maintainable by virtue of Section 53A of the Transfer of Property Act read with the amended Article 23A of the Indian Stamp Act as applicable to Delhi as the Agreement to Sell is unregistered and unstamped and the Power of Attorney besides not entitling the plaintiff to indirectly achieve what cannot be directly achieved is also not stamped on the value of the conveyance deed as required by Article 48 (f) of the Indian Stamp Act as applicable to Delhi."
12.4. In the case of Hemant Verma v. Mithilesh Rani , a learned Single Judge of this Court held that relief of declaration of title qua customary sale document i.e., ATS is not maintainable in absence of relief of specific performance being sought. The relevant paragraph of the said judgment is as under:
"28. Plaintiff claims right which were in favour of B.R. Luthra in the suit property by virtue of the agreement to sell dated 2nd July, 2007, registered memorandum of understanding dated 9th October, 2007, general power of attorney dated 9th October, 2007, registered special power of attorney dated 22nd April, 2008 and the receipts in relation to the payments made. Even according to the plaintiff, the suit property was agreed to be purchased for a total sale consideration of Rs. 1.25 crores out of which only Rs. 13 lakhs odd payment has been made. Thus, the plaintiff even as per his own case has paid only 1/10th of total sale consideration and not the complete sale consideration. Though plaintiff CS DJ 8962/2016 Page. 42 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Arul Digitally signed by Arul Varma Date: 2026.04.28 Varma 17:51:49 +0530 claims to have paid further amount, however, there is no material in regard to the fact that B.R. Luthra had received full consideration. Further, without seeking the relief of specific performance of the agreement to sell dated 2nd July, 2007, the relief of declaration of ownership of the suit property as sought by the plaintiff is not maintainable."
(Emphasis supplied) 12.5. Similarly, in Rajan Singh v. Roshan this Court held that agreement purchaser acquires no right/title/interest in the concerned property and the said purchaser merely gets a right to seek specific performance thereof. It was further held that a suit seeking declaration of title based on customary sale documents, instead of seeking specific performance of such documents, is not maintainable in law, and such a suit for declaration is not liable to be entertained by the Court. The relevant paragraphs read as under:
"15. I also do not find any ground to review or re- consider my decision in Bishan Chand supra, that Suraj Lamps and Industries Pvt. Ltd. supra is retrospective in operation. Rather, Suraj Lamps and Industries Pvt. Ltd. supra itself in paragraph 26 records that it merely declares the law as existing and has not declared any new law. The counsel for the plaintiff has also been unable to show any law under which the plaintiff, merely by having an agreement to purchase of an immovable property in his favour, can become the owner of the said immovable property.
16. Agreement purchasers do not have any right in the property/land agreed to be purchased. The Court, as far back as in Jiwan Das v. Narain Das, AIR 1981 Del 291 held that an Agreement to Sell does not create any right in the property to which it pertains and merely gives a right to the agreement purchaser to seek specific performance thereof. It was further held that no rights in immovable property are created, even on passing of decree for specific performance and till in execution thereof a Sale Deed is executed.
17. Thus, the suit, insofar as for the relief sought of declaration of ownership on the basis of General Power of Attorney, Will, Agreement to Sell and Affidavit of Possession, even post amendment CS DJ 8962/2016 Page. 43 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Arul Digitally signed by Arul Varma Varma Date: 2026.04.28 17:51:52 +0530 sought, including by way of the aforesaid two applications, does not lie and no suit therefor can be entertained and/or set in motion."
(Emphasis supplied)
13. The aforenoted consistent position of law since 1981 leaves no doubt that a plaintiff who relies upon an ATS as well as other customary documents to justify its possession of the immovable property, does not acquire ownership rights in the said property on the basis of the said ATS and, therefore, has no title to the said property. To acquire title, the plaintiff, who holds the ATS has to seek specific performance against the defendant seeking execution of a sale deed as contemplated under Section 54 of the TP Act, in accordance with law. The plaintiff cannot overcome this requirement of law by seeking a relief of declaration.
16. In view of the settled position of law qua Section 54 of TP Act, the relief of declaration of title at prayer clause (a) of the plaint based on customary documents including 1982 ATS is without any cause of action and barred by law, hence the plaint is liable to be rejected.
64. The above verdict makes it abundantly explicit that the plaintiff is not entitled to sue for declaration of title on the basis of customary sale documents such as Agreement to Sell, Power of Attorney, WILL etc., This position of law existed since 1981 i.e. even piror to the passing of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana SCC 656, (2011) 4,. The Agreement to Sell Ex PW1/3 is also not a registered document, and if it was so registered, the plaintiff would have had the option of filing a suit for specific performance, but not a suit for declaration of title.
65. No credence can also be given to all these customary documents viz., SPA Ex PW1/5, GPA Ex PW1/4, Affidavits Ex PW1/6 and Ex PW1/7, receipt Ex PW1/2, WILL Ex PW1/9 and Agreement to Sell Ex PW1/3, inasmuch as CS DJ 8962/2016 Page. 44 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Arul Digitally signed by Arul Varma Varma Date: 2026.04.28 17:51:55 +0530 defendant no 3 Manohar Singh, whose previous ownership has not been disputed by either parties, had categorically denied the execution of the above documents, in favour of the plaintiff or in favour of Vinod Ahuja. Defendant no 3 Manohar Singh had entered in the witness box and stated that the above documents are forged and fabricated and that he had sold the property in question to defendant no 1 through defendant no 2 Davender Bansal.
66. De hors the above, it is trite that no rights flow through a WILL unless the WILL is proved in terms of Section 68 of Indian Evidence Act, and in the present case, the WILL has not so been proved. Further, as far as the Agreement to Sell is concerned, there seems to be flip flop on the part of the plaintiff qua the date of execution of the Agreement to Sell Ex PW1/3 and her signatures thereon, as is apparent from the following extracts of her cross-examination dated 26.05.2012 wherein she averred as thus:
"Ex PW1/2 bears the date of 19.06.1989 Ex PW1/3 and Ex PW1/2 were executed on the same day. Ex PW1/3 was notarized at Tehsil, Mehrauli. It is correct that Ex PW1/3 bears the date of 13.06.1989. It is correct that agreement to sell was prepared on 13.06.1989 and Ex PW1/2 was prepared on 19.06.1989. I had signed the agreement Ex PW1/3. (Witness is asked to peruse Ex PW1/3 which is agreement to sell). It is correct that Ex PW1/3 does not bear my signature. It is correct that the site plan which is mentioned para 2 of Ex PW1/3 is not annexed with Ex PW1/3."
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67. Therefore, the plaintiff failed to prove that she was the owner of the suit property.
WHETHER THE PRESENT SUIT IS TO BE CONSIDERED AS ONE SEEKING RELIEF OF POSSESSION UNDER SECTION 6 OF SPECIFIC RELIEF ACT.
68. A perusal of plaint reveals that it has been titled simplicitor as suit for possession and recovery of mesne profit. Even in the prayer clause, the plaintiff has sought for a prayer qua decree of possession in favour of the plaintiff and for a decree of recovery of mesne profit. The plaint is conspicuously silent qua the provision 'Section 6 of Specific Relief Act, 1963.'
69. Even in the written submissions iled by the plaintiff, there is no specific plea taken that the suit has been filed u/s 6 of Specific Relief Act. In this context, it was argued by the defendants that it was only after receiving of written synopsis from the defendants that the plaintiff, during final arguments, tried to change the nature of the suit so as to bring it within the ambit of Article 64 of the Limitation Act notwithstanding the fact that the suit has been filed on the strength of assumed title, limitation whereof is covered under Article 65 of the Limitation Act. This Court concurs with the submissions of Ld Counsel for defendant inasmuch as a perusal of plaint would reveal that the suit for possession was filed by the plaintiff predicated on the basis of purported title viz., CS DJ 8962/2016 Page. 46 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Digitally signed Arul by Arul Varma Date: Varma 2026.04.28 17:52:02 +0530 Agreement to Sell, Power of Attorney, WILL. The plaintiff had sought to lead evidence to contend that the plaintiff was the owner of the suit property.
70. De hors the above afterthought by the plaintiff, the plaintiff has also not been able to establish that the case falls under Section 6 of the Specific Relief Act. At this juncture, it would be apt to refer to Section 6 of Specific Relief Act:
" 6. Suit by person dispossessed of immovable property.--
(1)If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2)No suit under this section shall be brought--
(a)after the expiry of six months from the date of dispossession; or
(b)against the Government.
(3)No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4)Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
71. The plaintiff had placed reliance on certain judgments which would reflect that the plaintiff could not establish 'previous possession' in order to entitle him to claim the relief u/s 6 of Specifi Relief Act.
72. At this juncture, it would be apposite to reproduce the relevant extract of Tajul Islam and Anr Vs Shariyatullah CS DJ 8962/2016 Page. 47 of 52 Digitally Urmila Bajaj Vs M/s Ankur Enterprises & Ors signed by Arul Arul Varma Date:
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Mansoorali Sheikh 1994 SCC OnLine Bom 99 wherein the Hon'ble Court held as thus:
"8. It is clear from a plain reading of the above section that the object of this section is to discourage forcible dispossession and to enable the person dispossessed to recover possession by merely proving his previous possession and wrongful dispossession without proving title. This remedy is in addition to the normal remedy of filing a suit for possession on the basis of title under the Civil Procedure Code. But to avail of relief in such summary proceeding, the person concerned must prove his "previous possession"
and "wrongful dispossession". The question of proving wrongful dispossession will naturally arise if and only if the "previous possession" is proved. It is only persons who were in "possession" who can sue under this section. If the previous possession of the person claiming relief under this section is itself in dispute, the court should attribute possession to the person with better title. No relief can be given in such a case under this section to the person who alleges dispossession but fails to prove his "previous possession" itself. Section 6 is not intended to be invoked in such cases."
73. Significantly, in Ram Richpal Sharma (since Deceased) Thr his Lr Vs Vijay Kumar Bansal (since Deceased) Thr his Lrs & Ors 2025 SCC OnLine Del 8132 the Hon'ble Court observed as thus:
"19. Thus, to claim possession under Section 6 of the SRA, the plaintiff is required to establish that he has been dispossessed from the suit property without his consent, otherwise than in due course of law. The limitation for preferring such a claim is six months from the date of dispossession and the question of title or better right to possession is immaterial in such proceedings.
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23. The onus to prove previous physical possession of the suit property and consequent dispossession by Respondent Nos. 1 to 5 was on the petitioner/plaintiff.
33. Even otherwise, to succeed in the suit, the petitioner had to establish his own case on merits by proving prior possession and dispossession. The documents relied upon by the defence pertaining to the year 1996 does not assist the petitioner in proving his own prior possession. It was rightly noted that the failure of the contesting defendants to prove their settled possession over the suit property does not assist the petitioner's case."
74. The above judgments make it explicit that in order to claim relief u/s 6 of Specific Relief Act, the onus is on the plaintiff to prove his previous possession of the suit property, which the plaintiff has failed to do so. No evidence has been placed on record to establish the fact that the plaintiff was in possession of the suit property prior to 01.08.2008 except a bald averment tha the defendants trespassed in suit property on 01.08.2008.
75. To establish prior possession, Ld Counsel for plaintiff had vehemently contended that the factum of possession by the plaintiff is apparent from a perusal of Agreement to Sell Ex PW1/3. However, a perusal of Ex PW1/3 would reveal that, strangely, signatures of the plaintiff are not inscribed thereon. Further, the Agreement to Sell Ex PW1/3 is dated 13.06.1989, and on the very same day, a Special Power of Attorney Ex PW1/5 and General Power of Attorney Ex PW1/4 were CS DJ 8962/2016 Page. 49 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Digitally signed by Arul Arul Varma Date:
Varma 2026.04.28 executed by defendant no 3 in favour of Vinod Ahuja thereby granting Vinod Ahuja the authority inter alia to sell/transfer the said suit property. A doubt certainly arises as to why such a GPA and SPA were executed on the same day, that too in favour of Vinod Ahuja. Furthermore, defendant no 3 Manohar Singh who had entered the witness box as Defendant no 2, categorically denied his signatures on the documents viz., SPA Ex PW1/5, GPA Ex PW1/4, Affidavits Ex PW1/6 and Ex PW1/7, receipt Ex PW1/2, WILL Ex PW1/9 and most importantly on the Agreement to Sell Ex PW1/3. The entire cross-examination of defendant no 3 Manohar Singh would reveal that he had maintained a stance that all the documents purportedly executed in favour of plaintiff Urmila Bajaj or Vinod Ahuja are forged and fabricated. On the contrary, he had even got an FIR lodged against the plaintiff and her husband PW-2 RK Bajaj. DW-2 had in fact categorically affirmed the fact that he had sold the suit property to defendant no 1 through defendant no 2.
76. The plaintiff had asserted that the plaintiff had taken possession of the plot, raised 7 ft high boundary wall, and put her name plate thereon to demonstrate that she was in continuous physical possession of the suit property. However, again, barring the above bland assertion, no other evidence was adduced on record. In fact, during cross-examination of PW-1 Urmila Bajaj on 13.09.2012, she did not know when CS DJ 8962/2016 Page. 50 ofDigitally 52 signed Urmila Bajaj Vs M/s Ankur Enterprises & Ors Arul by Arul Varma Date:
Varma 2026.04.28 17:52:16 +0530 the new number D 144C was given to suit property. She further did not know whether they were the members of the RWA or not, of the said colony. Further, on 05.11.2012, it was elicited as thus:
"Q. Have you filed any document to show that you were in possession of the suit property prior to 01.08.2008? Ans. Whatever documents I had, I have already filed in this case.
I do not have any water bill or electricity bill in relation to the suit property. It is wrong to suggest that my deposition in my affidavit of evidence is incorrect and contrary to the facts."
77. Further, it would be useful to refer to cross-examination of the witness made on 22.11.2013, who deposed as thus:
"We had constructed boundary wall on the suit property in July-August, 1989. We do not have any photograph to show that boundary wall constructed on the suit property. We did not obtain any water connection on the suit property. Except the possession letter issued by the defendant no. 3, I do not have any other document to show my possession in respect of the suit property. I do not remember since when my wife is the member of the Residents Welfare Association of that area. I do not have any document relating to the same."
78. No proof viz., property tax, membership of RWA, photographs of boundary wall, etc. evincing the factum of physical possession was placed on record by the plaintiff. Thus, the plea of plaintiff that she was in possession is mere ipse dixit. The plaintiff could not establish prior possession and therefore the suit would fail even if filed u/s 6 of the Specific Relief Act. Therefore, the issue no 3 is decided CS DJ 8962/2016 Page. 51 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors Digitally signed by Arul Varma Arul Date:
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against the plaintiff, and resultantly, the need for adjudicating issue no 4 is hereby dispensed with.
VII. RELIEF.
79. Ergo, in view of the above in extenso discussion, the suit of the plaintiff stands dismissed.
80. File be consigned to record room after necessary compliance. Pronounced in the open Court Digitally signed on this 28h April, 2026 Arul by Arul Varma Date:
Varma 17:52:23 2026.04.28 +0530 (ARUL VARMA) DISTRICT JUDGE-02/SOUTH, SAKET COURTS/NEW DELHI CS DJ 8962/2016 Page. 52 of 52 Urmila Bajaj Vs M/s Ankur Enterprises & Ors