Delhi District Court
Sh. Harish Gaur vs Smt. Ram Lubhai on 17 November, 2018
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ DJ No.1113/18
Sh. Tika Ram Gaur
through LRs :
1.Sh. Harish Gaur S/o Late Sh. Tika Ram Gaur R/o D1692, Dabua Colony NIT Faridbad.
2. Ms. Shagun Parashar W/o Sh. Sushil Parashar R/o H.No. 10/44, Ward Mohalla, Old Faridabad. ........Plaintiffs Versus Smt. Ram Lubhai Through LRs :
1. Sh. Onkar Nath Bhaskar
2. Ms. Prem Lata Both resident of H.No. 1789, Joshipura, Opp. Gurunanak Wada Near Khalsa College, Amritsar (Punjab)
3. Delhi Development Authority Vikas Sadan, New Delhi Through its Chairman. .........Defendants Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 1 of 21 Date of Filing Suit : 09.09.1994 Date of Transfer to this Court : 24.04.2017 Date of Reserving Judgment : 22.10.2018 Date of Judgment : 17.11.2018 J U D G M E N T
1. This is suit for specific performance of contract and possession filed by the plaintiff against the defendants.
2. Brief facts of the case as per the plaint are that late Sh. Hans Raj Bhaskar was the lessee and allottee of a residential plot bearing no. E18, Greater Kailash, Part1, New Delhi measuring 266.67 sq. yds (hereinafter referred to as the 'suit property') vide registered lease deed dated 12.10.1971. The plaintiff further averred that the lessee raised construction on the suit property and died on 26.07.1988 leaving behind the defendant no.1 as his wife, Ms. Prem Lata as his daughter and Sh. Onkarnath as his son. According to the plaintiff, Ms. Prem Lata and Sh. Onkarnath had relinquished their rights in the suit property in favour of the defendant no.1 vide registered Relinquishment Deed dated 01.06.1990. The original plaintiff claimed that he was residing at Faridabad whereas, the defendant no.1 is residing at Amritsar and therefore, it was not convenient for the defendant no.1 to manage the affairs of the suit property at New Delhi. The original plaintiff also claimed that the defendant no. 1 had also agreed to transfer Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 2 of 21 the suit property in favour of the plaintiff but firstly endorsed the work to the plaintiff to get her name entered in the register of DDA. Accordingly, the original plaintiff claimed that the defendant had executed SPA in his favour on 25.04.1989. He further claimed that the said SPA was given with intent to transfer the title of the suit property in her name. He further claimed that there were few disputes regarding the possession, house tax etc. He further averred that on 26.12.1992, the defendant no.1 entered into an agreement to sell for alienation of the suit property for total sale consideration of Rs.5,00,000/ against which he had made advance payment of Rs.1,50,000/ to the defendant no.1. The plaintiff claimed that the defendant no.1 agreed to alienate the suit property in the name of the plaintiff with all rights appurtenant thereto as soon as property is registered in her name in DDA. The plaintiff further claimed that on 27.11.1993, he visited the house of the defendant no.1 and asked her to visit Delhi on any working day as she was required to submit some documents so as to get the suit property mutated in her name.
3. The plaintiff further claimed that on coming to know that the defendant had entered into an agreement for transfer of the suit property with other person, he filed the suit for permanent injunction. Thereafter, the plaintiff filed the present suit for specific performance of the agreement or in the alternate for relief of recovery of advance money alongwith interest @ 18% per Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 3 of 21 annum from the defendant no.1.
4. Written statement was filed on behalf of the LRs of the deceased defendant no.1. The LRs of the deceased defendant no.1 raised preliminary objection under Order 2 Rule 2 CPC on the pretext that the plaintiff had admittedly instituted suit for permanent injunction concerning the same subject matter on the same cause of action which was dismissed on 24.08.1994. The Lrs of the deceased defendant no. 1 specifically denied that the deceased Ram Lubhai, defendant no.1 entered into any agreement in respect of the suit property with the plaintiff. The LRs of the deceased defendant no.1 averred that the alleged agreement and receipt are forged and fabricated with a view to grab the suit property. The LRs of the deceased defendant no.1 also denied the receipt of Rs.1,50,000/ from the original plaintiff at any point of time. The LRs of the deceased defendant no.1 thus prayed for dismissal of the present suit.
5. The plaintiff filed replication to the written statement of LRs of the deceased defendant no.1 wherein he reiterated the contents of the plaint as true and correct and denied the contrary averments made in the written statement.
6. Written statement was also filed on behalf of the defendant no.2/ DDA wherein the defendant no.2 took preliminary objection that Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 4 of 21 notice under Section 53 (B) of DDA Act was not served upon the answering defendant. The defendant no.2 has also averred that the suit is bad for nonjoinder of necessary and proper party in as much as S. S Bakshi S/o late Sh. S. Teja Singh, other claimant/owner on the basis of registered Will, agreement to sell, GPA had applied for mutation of the suit property in his name in DDA, has not been made party to the present suit. The defendant no. 2 further averred that the suit property was subleased in the name of Sh. Hans Raj on 12.10.1971, who died on 27.07.1988 as per the death certificate furnished by Ram Lubhai, widow of the deceased, who had applied for mutation of the suit property in her name but before the mutation could be effected, Sh. S.S. Bakshi had also applied for mutation in his name on the basis of registered Will, agreement to sell, GPA and other documents.
7. The defendant no.2 further pleaded that Smt. Ram Lubhai, defendant no.1 had represented that Will dated 11.10.1974 in favour of Sh. S.S. Bakshi is totally fictitious and suit property be transferred in the name of LRs of the deceased including herself. The defendant no.2 further pleaded that since there were two claimants for mutation of the suit property, the Commissioner vide order dated 17.01.1992 kept the mutation in abeyance and directed the parties to seek redressal from the Court. The defendant no.2 thus prayed for dismissal of the present suit.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 5 of 218. The original plaintiff filed replication to the written statement of the defendant no. 2 wherein, he reiterated and reaffirmed the contents of the plaint as true and correct and denied the contrary averments made in the written statement.
9. Vide order dated 19.10.2001, following issued were framed as :
1. Whether the defendant no.1 is the full owner of the property and has right to alienate the property in the manner she likes? If so its effect?
2. Whether the plaintiff is the special power of attorney on behalf of defendant no.1? If so, its effect.
3. Whether the defendant agreed to alienate the property in the name of the plaintiff alongwith the rights appurtenant to the said property.
4. Whether the suit is bad for want of notice under Section 53B of D.D. Act ?
5. Whether the plaintiff has locus standi to file the present suit?
6. Whether the suit is bad for nonjoinder of necessary and proper parties, if so, its effect?
7. Whether the property can be transferred in the name of LRs of deceased S.S. Bakshi according to will dated: 10.10.74, if so, its effect?
8. Whether the plaintiff is entitled for the decree of specific performance of Contract on the basis of agreement?
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 6 of 219. Relief.
10.Perusal of record shows that the defendant no.1, Smt. Ram Lubhai had died on 01.09.1996 and application under Order 22 Rule 4 read with Section 151 CPC for bringing on record the LRs of the deceased defendant no.1, was allowed vide order dated 25.04.2003. On 03.07.2003, additional issued was framed by the ld. Predecessor of this court as : 1A. Whether the suit is barred under Order 2 Rule 2 CPC? OPD1
11.The original plaintiff in order to prove the case has examined himself as PW1; Sh. Mukesh Jain as PW2 and Sh. Hukum Chand as PW3.
12. The LRs of the deceased defendant no.1 in order to prove their case have examined Sh. Madan Lal, Assistant Director, Co operative Societies, DDA, Vikas Sadan, New Delhi as DW1 and Sh. Omkar Nath, S/o late Sh. Hans Raj as DW2.
13. After the conclusion of defendant's evidence, Predecessor of this Court vide order dated 01.08.2007 observed that the plaintiff has preferred an application for cancellation of probate proceedings which were pending before the learned Court of Sh. V.K. Gupta, ADJ, Delhi and the plaintiff intended to see the outcome of the Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 7 of 21 said proceedings. Considering the submission of the plaintiff, the learned Predecessor of this Court adjourned the present suit sine die till the decision of the probate proceedings with an option to the parties to get the present suit revived either after decision on such application of cancellation of probate proceedings or otherwise, if the circumstances so warrants.
14.An application under Section 151 CPC for reviving the present suit was moved on 12.12.2011 on the ground that the appeal filed against grant of probate petition was dismissed and relief of specific performance is independent of the probate case. The defendant no.2 filed reply to the aforesaid application and stated that Sh. Hans Raj Bhaskar had already executed Will dated 11.10.1974 in favour of Sh. S. S. Bakshi and Sh. S.S. Bakshi had got aforesaid Will probated vide order dated 15.09.2001 from the learned Court of Sh. H.R. Malhotra, the then learned District & Sessions Judge, Delhi. The defendant no. 2 further stated that the plaintiff had challenged the said order dated 15.09.2001 before the Hon'ble High Court of Delhi in FAO No.524/2011 and the same was dismissed vide order dated 07.12.2011. The defendant no. 2 thus stated that the plaintiff has no locus standi as the original allottee, Sh. Hans Raj had already executed agreement to sell, Will in favour of Sh. S. S. Bakshi and suit property has already been converted into free hold.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 8 of 2115. During the pendency of the said application, another application under Order 22 Rule 2 and 4 CPC was filed for bringing on record the LRs of the original plaintiff as he had died on 06.03.2012.
16. Vide order dated 10.10.2017, the plaintiff was allowed to serve the LRs of the deceased defendant no.1 on the aforesaid applications through publication in the newspaper. The LRs of the deceased defendant no.1 were served through publication as observed vide order dated 26.04.2018. Thereafter, on 12.09.2018, this Court allowed the aforesaid applications i.e. application under Section 151 CPC as well as application under Order 22 Rule 4 CPC.
17. Ld. Counsel for the plaintiff submitted on 12.09.2018 that LRs of the original plaintiff are willing to pursue the present suit only with respect to the relief of recovery of money paid in advance as prayed for in the plaint and accordingly, suit was revived to its original number. On 22.10.2018, LRs of the deceased plaintiff moved application under Order 22 Rule 4 CPC stating that Sh. Virish Gaur, LR of the deceased plaintiff had died on 22.01.2017 without any class 1 legal heir and his name be deleted from the array of the parties. Accordingly, order for deletion of name of the defendant no. 2 was passed.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 9 of 2118.It is relevant to mention herein that the Lrs of the deceased plaintiff are restricting their claim to the relief of recovery of advance money/ part payment which was allegedly paid by the original plaintiff to the deceased defendant no. 1. However, no specific issue has been framed in this regard. Be that as it may, the plaintiff has made specific prayer in the plaint. The Court in exercise of power under order 7 rule 7 CPC can consider the same, if so tenable.
19. The issue wise finding is given in the succeeding paragraphs.
Issue No.2 : Whether the plaintiff is the special power of attorney on behalf of defendant no.1? If so, its effect.
20.According to the original plaintiff, the defendant no. 1 since based in Amritsar, had executed SPA in favour of the original plaintiff at Amritsar on 24.09.1989 to get the suit property mutated in her favour in DDA. During crossexamination dated 15.01.2004, PW 1, Sh. Teeka Ram deposed that he did not meet Ram Lubhai in the year 1989. He denied the suggestion that she met him in the year 1989 and handed over the Power of Attorney. He volunteered that her son had come and handed over the Power of Attorney to him. He denied the suggestion that Power of Attorney was given to him to facilitate the mutation of the suit property in her name in DDA. He admitted the suggestion that he had approached the DDA to get the property transferred in the name of Smt. Ram Lubhai.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 10 of 2121. The aforesaid deposition of PW1 is contrary to the averments made in the plaint. In the plaint, the plaintiff specifically averred that the said Power of Attorney was given to him to get the suit property mutated in the name of the defendant no. 1, whereas, he denied the same in his cross examination dated 15.01.2004. The very fact that the plaintiff has admitted in his deposition that he had approached DDA for getting the suit property transferred in the name of Ram Lubhai makes it evident that the Power of Attorney was given to him for the purpose of mutation of the suit property in the name of Smt. Ram Lubhai.
22.Pertinently, the plaintiff had put the Power of Attorney, Ex.PW1/D to Sh. Omkar Nath, who entered into the witness box as DW2. During crossexamination dated 17.01.2005, DW2 admitted the suggestion that Power of Attorney, Ex.PW1/D was executed by his mother in favour of the plaintiff, Sh. Tika Ram. He further admitted that the Power of Attorney was executed at Amritsar. He denied the suggestion that the plaintiff was not present at Amritsar on 25.04.1989 when Power of Attorney was executed. He deposed that the Power of Attorney was handed over to Sh. Tika Ram Gaur either on the same day or on the next day.
23. The conjoint reading of testimony of DW2 and the testimony of PW1 coupled with the specific averments made in the plaint, it is Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 11 of 21 established that the defendant no. 1 had executed Power of Attorney, Ex.PW1/D in favour of Sh. Tika Ram Gaur on 25.04.1989 to get the suit property mutated in her name in the records of DDA. This issue is decided accordingly.
Issue No. 4. Whether the suit is bad for want of notice under Section 53 B of D.D.A Act ?
AND Issue No. 5. Whether the plaintiff has locus standi to file the present suit?
AND Issue No. 6. Whether the suit is bad for nonjoinder of necessary and proper parties, if so, its effect?
24. The aforesaid issues appear to have been framed at the instance of the defendant no.2/ DDA as the defendant no. 2 has raised the aforesaid preliminary objections in the written statement. According to the defendant no.2, Sh. S.S. Bakshi had also applied for mutation of the suit property in his name in DDA on the basis of registered Will, Agreement to Sell and GPA, but not made party in the present suit. The defendant no. 2 has also raised specific plea that the suit is bad for nonissuance of notice as required under Section 53(B) of the DDA Act before filing of the present suit and the plaintiff has no locus standi to file the present suit.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 12 of 2125. In so far as the aforesaid preliminary objections are concerned, the said preliminary objections have become infructuous as the plaintiff is not pressing the relief of specific performance of the agreement to sell dated 26.12.1992, Ex.PW1/B with respect to suit property. Accordingly, no finding is returned on the aforesaid issue.
Issue No. 1A: Whether the suit is barred under Order 2 Rule 2 CPC? OPD1
26. Onus to prove this issue was on the defendant no. 1. The LRs of the deceased defendant no.1 raised preliminary objection under Order 2 Rule 2 CPC on the pretext that the plaintiff had instituted suit for permanent injunction concerning the same subject matter on the same cause of action which was dismissed on 24.08.1994.
27. The Hon'ble Apex Court in the judgment reported as Civil Appeal No. 30563057 of 2017, Jayantilal Chimanlal Patel vs. Vadilal Purshottamdas Patel decided on 21.02.2017 has observed that filing of the plaint of earlier suit and proving it as per law is imperative to sustain the relief of Order 2 Rule 2 CPC.
28. Adverting to the fact of the present case, the defendant no. 1 has not filed the plaint of the aforesaid suit for permanent injunction. In the absence of any plaint of the aforesaid suit, it is not established that the suit is not maintainable under Order 2 Rule 2 Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 13 of 21 CPC. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue No. 7: Whether the property can be transferred in the name of LRs of deceased S.S. Bakshi according to will dated:
10.10.74, if so, its effect?
29. Admittedly, the Will dated 11.10.1974 executed by Sh. Hans Raj Bhaskar in favour of Sh. S. S. Bakshi has been probated in the probate case no. 42/2001 vide judgment dated 15.09.2001 by the Court of Sh. H.R. Malhotra, learned District & Sessions Judge, Delhi.
30. During the course of arguments, ld. Counsel for the plaintiff submitted that on account of probate of Will dated 11.10.1974, the property can be transferred in the name of LRs of the deceased, Sh. S.S. Bakshi. This issue is decided accordingly.
Issue No.1 : Whether the defendant no.1 is the full owner of the property and has right to alienate the property in the manner she likes? If so its effect?
31. Ld. Counsel for the plaintiff submitted that on account of probate of Will dated 11.10.1974 in favour of Sh. S.S. Bakshi, he is not pressing the relief of specific performance. Admittedly, Will dated 11.10.1974 has been probated in favour of Sh. S.S. Bakshi and therefore, the defendant no.1 was not the owner of the suit Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 14 of 21 property and had no right to alienate the suit property in favour of the original plaintiff or any other person. This issue is decided accordingly.
Issue No.3. Whether the defendant agreed to alienate the property in the name of the plaintiff alongwith the rights appurtenant to the said property.
AND Issue No.8: Whether the plaintiff is entitled for the decree of specific performance of Contract on the basis of agreement?
32. Ld. Counsel for the plaintiff submitted that late Sh. Hans Raj Bhaskar was the owner of the suit property vide lease deed registered on 12.10.1971. He urged that Sh. Hans Raj Bhaskar died on 26.07.1988 leaving behind the defendant no.1 as his wife, Ms. Prem Lata as his daughter and Sh. Omkar Nath as his son. It is his submission that Sh. Omkar Nath and Ms. Prem Lata had relinquished their rights in the suit property in favour of the defendant no.1 vide registered relinquishment deed dated 01.06.1990 and thus, the defendant no.1 became owner of the suit property. It is his contention that the defendant no.1 agreed to alienate the suit property in favour of the original plaintiff and also executed Power of Attorney dated 25.04.1989 in favour of the original plaintiff to get the suit property mutated in her name in Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 15 of 21 DDA. It is his contention that the defendant no.1 had also agreed to sell the suit property in favour of the original plaintiff vide agreement to sell dated 26.12.1992, Ex.PW1/B for an amount of Rs.5,00,000/. It is contention that the plaintiff had paid an amount of Rs.1,50,000/ to the original defendant no.1 as an earnest money and the original defendant no.1 agreed to alienate the suit property in favour of the plaintiff as soon as the name of the defendant no.1 is entered in the property register of DDA.
33. On the other side, case of the LRs of the deceased defendant no.1 is that the defendant no.1 never entered into any agreement with the plaintiff in respect of the suit property. It is also their case that the alleged agreement to sell, Ex.PW1/B and receipt, Ex.PW1/C are forged and fabricated documents which have been prepared with a view to grab the suit property. The LRs of the deceased defendant no.1 also denied that the defendant no.1 had ever received an amount of Rs.1,50,000/ from the plaintiff at any point of time.
34. In nutshell, LRs of the deceased defendant no.1 denied the execution of the agreement to sell dated 26.12.1992, Ex.PW1/B and receipt dated 26.12.1992, Ex.PW1/C. Therefore, burden was on the original plaintiff to prove that the aforesaid documents i.e. agreement to sell, Ex.PW1/B and receipt, Ex.PW1/C were executed between the parties.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 16 of 2135.During crossexamination dated 24.03.2005, DW2 admitted the signature of his mother on Ex.PW1/D i.e. Power of Attorney dated 25.04.1989 and Ex.PW1/D, i.e. application dated 14.06.1990 for mutation of the suit property written by the original defendant no. 1 to the DDA. Further, DW2 denied the signature of his mother at point 'M' on agreement to sell dated 26.12.1992, Ex.PW1/B and also denied the signature of his mother on receipt dated 26.12.1992, Ex.PW1/C at point 'P'.
36. Ld. Counsel for the plaintiff contended that the witness to Ex.PW1/B and Ex.PW1/C were examined by him as PW2 and PW3, who have proved the agreement to sell, Ex.PW1/B and receipt, Ex.PW1/C.
37. PW2, Sh. Mukesh Kumar Jain deposed that in his presence, the plaintiff had paid an amount of Rs.1,50,000/ to Smt. Ram Lubhai and thereafter, Sh. Tika Ram and Smt. Ram Lubhai signed on the agreement at point X and M. He deposed that his signature appears at point 'N' and signature of the witness, Sh. Hukum Chand appears at point 'O' on Ex.PW1/B. He further deposed that after receiving the amount of Rs.1,50,000/, the plaintiff had agreed to pay balance payment of Rs.3,50,000/ at the time of registration of sale deed. He further deposed that he signed as witness on receipt dated 26.12.1992, Ex.PW1/C at point 'Q'. It is Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 17 of 21 also his deposition that the said receipt bears signature of Smt. Ram Lubahi at point 'P' and Sh. Hukum Chand at point 'R'. During his crossexamination dated 15.01.2004, he denied the suggestion that sum of Rs.1,50,000/ was not paid in his presence. He deposed that no other documents were signed in his presence except agreement.
38. PW3, Sh. Hukum Chand deposed in his evidence that the plaintiff had paid a sum of Rs. 1,50,000/ to Smt. Ram Lubhai and thereafter, Sh. Tika Ram and Smt. Ram Lubhai signed on the agreement, Ex.PW1/B at point 'X' and 'M' in his presence. He further deposed that his signature appear at point 'O' and signature of Sh. Mukesh Jain,witness appears at point 'N' on Ex.PW1/B. He further deposed that Smt. Ram Lubhai had signed the receipt at point 'R' and Mukesh Jain had signed the receipt at point 'Q'. He further deposed that the entire transaction had taken place in his presence. He also deposed that he signed as witness on Ex.PW1/C.
39. During crossexamination dated 15.01.2004, PW3 deposed that Smt. Ram Lubhai was not known to him. He further deposed that he met her for the first time on 26.12.1992. It is also his deposition that the agreement was already there and he signed the same as witness. He further deposed that when he reached there, Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 18 of 21 he was told that money had already been exchanged and the agreement had already been signed and he should sign as a witness.
40. There is discrepancy in the testimony of PW3 as he deposed about his presence at the time of payment of Rs.1,50,000/ and signing of the agreement, Ex.PW1/B by Sh. Tika Ram Gaur; Smt. Ram Lubhai and Sh. Mukesh Jain, whereas, during his cross examination dated 15.01.2004, he deposed that the agreement was already signed and money had already been exchanged when he reached there. He deposed that he was asked to sign as witness after execution of documents, Ex.PW1/B and Ex.PW1/C and exchange of money.
41. The aforesaid testimony of PW3 is of no help to the plaintiff as neither money has been exchanged in his presence nor agreement to sell, Ex.PW1/B was executed in his presence.
42. In so far as testimony of PW2 is concerned, PW2 has also deposed during his crossexamination dated 15.01.2004 that no other document was signed in his presence except agreement. Meaning thereby, the receipt, Ex.PW1/C was not signed in his presence. Be that as it may, the plaintiff has also not stated about the source of arrangement of amount of Rs.1,50,000/ on 26.12.1992. He has also not stated as to whether the amount was Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 19 of 21 available with him or arranged the from other sources. The simple averment that he had paid an amount of Rs.1,50,000/ to the original defendant no.1 is not sufficient in the eyes of law. Further, PW3, witness to the agreement to sell, Ex.PW1/B and receipt, Ex.PW1/C has demolished the case of the plaintiff by deposing that the amount was not given in his presence and the agreement was already signed before he reached at the house of the original plaintiff. The plaintiff has also not examined any hand writing expert to show that Ex.PW1/B and Ex.PW1/C bear the signature of original defendant no. 1. Once the DW2 admitted he signature of the original defendant no. 1 on Ex.PW1/D and Ex.PW1/D1, the plaintiff could examine hand writing expert for the purpose of comparison of admitted signature of the defendant no.1 on Ex.PW1/D and Ex.PW1/D1 with the disputed signature on Ex.PW1/B and Ex.PW1/C.
43.In the absence of any cogent evidence available on record, the plaintiff has not been able to prove on preponderance of probability that the agreement to sell dated 26.12.1992, Ex.PW1/B was executed by Smt. Ram Lubhai in his favour and he had paid an amount of Rs.1,50,000/ to Smt. Ram Lubhai on 26.12.1992 vide receipt, Ex.PW1/C.
44. In view of foregoing discussion, the aforesaid issue no.3 & 8 are decided against the plaintiff and in favour of the defendant no.1.
Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 20 of 21Since the original plaintiff has failed to prove that he had advanced an amount of Rs.1,50,000/ to the original defendant no.1, he is not entitled to the relief prayed for.
Relief
45. In view of foregoing discussion, suit filed by the plaintiff is dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court on (Manjusha Wadhwa) this 17th November, 2018. Addl. District Judge04 (West) Tis Hazari Courts, Delhi Digitally signed by MANJUSHA MANJUSHA WADHWA WADHWA Date:
2018.11.22 16:47:54 +0530 Civ DJ No.1113/18 Sh. Tika Ram Gaur Through LRs. vs. Smt. Ram Lubhai Through LRs & ors. Page 21 of 21