Delhi District Court
Sh. Kapil Munni vs Sh. Bhal Singh on 18 April, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 255/08
Unique Case I.D. No. 02401C0101422002
Smt. Prem Lata
W/o Sh. Kapil Munni
R/o V. P. O. Harevli, Delhi110039.
(Through her Special Attorney)
Sh. Kapil Munni
S/o Sh. Richpal
R/o V. P. O. Harveli, Delhi110039. ...........Plaintiff
Versus
1. Sh. Bhal Singh
S/o Sh. Dariao Singh
R/o V. P. O. Harevli, Delhi110039.
2. Sh. Ramesh Chander
3. Sh. Balwant Singh
4. Sh. Suresh Chander
All S/o Sh. Jai Narain
R/o V. P. O. Gogha, Delhi.
5. Smt. Savitri
W/o Sh. Ram Chander
S/o Late Sh. Shish Ram
R/o V. P. O. Harevli, Delhi110039. .........Defendants
Date of filing of the suit : 03.08.1999
Date of reserving judgment : 09.04.2012
Date of pronouncement of judgment : 18.04.2012
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 1/45
J U D G M E N T
1. The plaintiff was stated to have entered into an agreement to sell dated 15.11.1996 with the defendant no. 1 in respect of purchasing the land measuring 1 Bigha out of total land measuring 4 Bigha and 16 Biswas situated in Khasra no. 30/25 within the Revenue Estate of Village Harevli, Delhi. The defendant no. 1 had agreed to sell and transfer the aforesaid land for total consideration amount of Rs. 1,00,000/ which was paid by the plaintiff to the defendant no. 1 at the time of execution of agreement to sell itself for which the defendant no. 1 was also stated to have executed separate receipt on the said date. The defendant no. 1 had also put the plaintiff into actual physical possession of the land measuring 1 Bigha out of Khasra no. 30/25 on 15.11.1996 itself in the south west portion of the land as had been shown more particularly in the site plan attached with the plaint.
2. Besides the execution of agreement to sell, the defendant no. 1 was also stated to have executed an undertakingcumpossession letter, General Power of Attorney as well as Will. In his undertakingcum possession letter, a stipulation was made by the defendant no. 1 regarding handing over the vacant and peaceful possession of the land to the plaintiff, who had thereafter become the sole and exclusive owner thereof and no one else had any right, title, interest, claim, lien or concern whatsoever in respect of the said land. The defendant no. 1 was stated to have further assured the plaintiff that neither he had entered into an agreement to sell with respect to said land with any one else nor he shall do so in future Suit no. 255/08 Prem Late vs Bhal Singh Page No. 2/45 as well and as per clause 6 of the said agreement, the defendant no. 1 was stated to have left with no lien, interest or concern whatsoever in respect of the suit property and in conformity with clause 8 of the said agreement, the defendant no. 1 had further agreed to execute and sign all the papers, documents etc. regarding transfer of ownership of the property on the request of the plaintiff. In case of his failure to do so, the defendant no. 1 had also assured the plaintiff to indemnify her to the tune of Rs. 1,00,000/ besides refunding her the consideration amount of Rs. 1,00,000/ with interest and damages.
3. The plaintiff was stated to have duly performed her part of agreement by paying the entire sale consideration amount in respect of the suit property to the defendant no. 1 on the date of execution of agreement to sell itself. Further, the defendant no. 1 was stated to have not bothered to execute any sale deed in favour of the plaintiff in respect of the suit property. Since, the plaintiff as well as the defendant no. 1 were belonging to the same village hence, despite several repeated requests and reminders made by husband of the plaintiff to the defendant no. 1, latter had always avoided his liability to execute the documents of sale in her favour on one pretext or the other and was stated to have further kept on saying that since the plaintiff was already enjoying the possession of the suit property hence, there was no need for her to bother about the execution of documents. The plaintiff was stated to have approached the defendant no. 1 through her husband/attorney on 30.06.1999 and further, similar requests made by him to the defendant no. 1 was again declined by later which compelled the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 3/45 plaintiff to have got issued the legal notice dated 01.07.1999 to the defendant which was sent to him through registered AD post and UPC. The legal notice sent by way of registered AD post was received back unserved with the report of refusal. Till the date of institution of the suit, the defendant no. 1 was stated to have not executed any other document except an agreement to sell in her favour. Later on, the plaintiff had came to know about the fact of disposal of the aforesaid suit property by the defendant no. 1 in favour of the defendant no. 2 to 4 vide registered sale deed dated 25.06.1999 and thereafter, they had also got mutated the same in their favour on 15.07.1999 and as such, the defendant no. 1 was stated to have left with no other right, title or interest in the aforesaid land measuring 1 Bigha out of Khasra no. 30/25 falling within the Revenue Estate of Village Harevli, Delhi after entering into an agreement dated 15.11.1996 in respect thereof with the plaintiff for which he had also received the full and final payment of consideration amount from the plaintiff. Hence, he was not competent and authorized to transfer or create any third party interest in the said property in favour of any third person. However, later on the plaintiff had also come to know about the fact of disposal of the suit property by the defendants no. 2 to 4 in favour of the defendant no. 5 by virtue of registered sale deed dated 20.01.2005 executed between the parties in the suit. This fact had come to the notice of the plaintiff upon her husband's visit to the office of Tehsildar.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 4/45
4. Cause of action to file the present suit was stated to have initially arisen on 15.11.1996 when the plaintiff had entered into an agreement to sell with the defendant no. 1. It had arisen further on 01.07.1999 when the legal notice was sent to the defendant no. 1 and was stated to be continuing in nature as the defendant no. 1 had not only refused to take the notice but also had declined to executed the sale deed in favour of the plaintiff.
5. The suit was valued and assessed at Rs. 1,00,000/ for the purpose of Court fees and jurisdiction and since both the parties to the suit were residing and working for gain at Delhi and suit premises was also situated at Delhi as well as cause of action had also arisen at Delhi, hence it was submitted that this Court had territorial jurisdiction as well as pecuniary jurisdiction to try and entertain the present suit. In the light of aforesaid facts, it was prayed that the decree of specific performance/part performance of the agreement to sell dated 15.11.1996 be passed in favour of the plaintiff and against the defendants, thereby directing the defendants to execute the sale deed in favour of the plaintiff in respect of the suit property falling in Khasra no. 30/25 measuring 1 Bigha situated within the Revenue Estate of Village Harevli, Delhi. Further, it was prayed that in case, the specific performance of the said agreement to sell was not permissible under the law, then a decree to the tune of Rs. 1,00,000/ be also passed in favour of the plaintiff and against the defendant no. 1 and further it was prayed that the defendants be directed to pay an amount of Rs. 1,00,000/ to the plaintiff herein with interest thereon @ 18 % per annum and besides this, the plaintiff was also entitled to recover Suit no. 255/08 Prem Late vs Bhal Singh Page No. 5/45 damages/compensation from the defendant no. 1 to the extent to which the same could have been assessed and determined by this Court.
6. After service of the summons of the suit along with notice of the application, the defendant no. 1 had duly appeared to contest the suit of the plaintiff on its merits and had also placed on record his written statement. However, later on the suit was amended twice to bring on record the defendants no. 2 to 4 and the defendant no. 5.
7. In his written statement filed on record, the defendant no. 1 was stated to have taken the following preliminary objections ; the jurisdiction of the Civil Court was stated to be specifically barred to entertain a suit of such kind of nature of relief in view of provisions of Delhi Land Reforms Act 1954 as admittedly the land in question was falling under the rural area and the suit land was an agricultural land ; The plaintiff was also stated to be guilty of not approaching the Court with clean hands and also guilty of suppression and concealment of material facts made by her from the Court ; It was stated further, that no such alleged agreement to sell, Will, Affidavit, General Power of Attorney, etc was ever executed by the defendant no.1 in respect of the suit premises and in fact it was the husband of the plaintiff after putting the defendant no. 1 in a state of drunkenness and intoxication had obtained his signatures on some blank stamp papers which were later on converted by him into valuable securities to file the present litigation as the defendant no. 1 had taken various personal loans from time to time from the husband of the defendant no. 1 and in Suit no. 255/08 Prem Late vs Bhal Singh Page No. 6/45 all, a sum of Rs. 60,000/ and as such all of his allegations were fraudulent, malafide and false in connection with either of alleged Will or execution of any other document of sale in respect of the suit property. Even the possession of the plaintiff in respect of suit property was also denied by him. On merits also all the factual assertions of the plaint made by the plaintiff were denied by him as wrong and incorrect.
8. The defendants no. 2 to 4 had also duly appeared to contest the case of the plaintiff on its merits and filed on record their written statements wherein they had stated that they had purchased the suit property from the defendant no. 1 vide duly registered sale deed dated 25.06.1999 which was also mutated in their name on 15.07.1999, vide order dated 15.07.1999 passed by Ld. ACO, Alipur, Delhi. Land in question was stated to be forming portion of Khasra no. 30/25 measuring 4 Bigha and 16 Biswas which was entirely within their cultivatory possession since the day of its purchase and hence, the plaintiff had neither any locusstandi or cause of action existing in her favour to file the present suit against them. The plea of the present suit also being not maintainable by virtue of provisions of Delhi Land Reforms Act was also raised by these defendants in their written statement filed on record. On merits all the factual contents of plaint were denied by them as wrong and incorrect.
9. The plaintiff had also filed replication to the written statement filed by the defendants no. 1 to 4 wherein she had denied all the preliminary objections as wrong and incorrect as were taken by the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 7/45 defendants in their written statement. On merits, all factual contentions of the plaint were reiterated and reaffirmed as correct except those which were either admitted by the defendants specifically or were purely a matter of record or were legal in nature.
10.On the pleadings of the parties, vide order dated 27.04.2004, Ld. Predecessor of this Court had framed the following issues :
1. Whether the plaintiff is entitled for a decree for specific performance of the agreement dated 15.11.1996 as prayed? OPP
2. Whether the plaintiff is entitled for a decree for recovery of Rs. 1,00,000/ in alternate along with interest as prayed? OPP
3. Whether the plaintiff is entitled for any damages and compensation in case of nonperformance of agreement by the defendant? OPP
4. Whether the suit is not maintainable? OPD 2, 3 and 4.
5. Whether the suit is barred under the DLR Act ? OPD1
6. Whether the suit is not maintainable as there is no previty of contract between the plaintiff and defendant no. 1?
OPD1 Suit no. 255/08 Prem Late vs Bhal Singh Page No. 8/45
7. Whether the suit is not maintainable for not proper valuation of the suit property? OPD1
8. Relief.
11.Since both the Ld. Counsels appearing for their respective parties had requested to dispose off the suit on the basis of written arguments filed by them on record, hence after going through the same, my issue wise findings are as under :
ISSUE NO : 1, 2 AND 3.
ISSUE NO : 1 : "Whether the plaintiff is entitled for a decree for specific performance of the agreement dated 15.11.1996 as prayed?" OPP ISSUE NO : 2 : "Whether the plaintiff is entitled for a decree for recovery of Rs. 1,00,000/ in alternate along with interest as prayed?" OPP ISSUE NO : 3 : "Whether the plaintiff is entitled for any damages and compensation in case of nonperformance of agreement by the defendant?" OPP
12.Since all these issues are interconnected and have bearing on the findings of each other hence, they are all taken up together for the purpose of adjudication.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 9/45
13. Onus to prove these issues was upon the plaintiff and to discharge the said onus, one Sh. Kapil Muni, husband of the plaintiff/SPA had appeared in the witness box as PW1 and had filed in evidence, his examinationinchief by way of affidavit Ex. P1 wherein he had claimed the plaintiff to be a Pardanashi Lady therefore, she was not in position to appear in public office and thus, had placed on record SPA dated 22.07.1999 executed by the plaintiff in his favour as Ex. PW1/1.
14.However, it is pertinent to mention here itself that in his plaint no such averment has been made by the plaintiff that she being a Pardanashi Lady was unable to appear in public and hence, she was filing the present suit through her SPA Sh. Kapil Muni.
15.Besides reiterating the other factual contents of the plaint on solemn affirmation the said PW1 had also placed on record the agreement to sell allegedly entered between the plaintiff and the defendant no. 1 as Ex. PW1/2 bearing signatures of the plaintiff at point B and of the defendant at point A and witnessed by two witnesses at points C and D. He was also stated to be present at the time of execution of the agreement to sell as well as making payment to the defendant at home. The receipt for consideration amount dated 15.11.1996 was placed on record as Ex. PW1/3 and affidavit in support of execution of documents as Ex. PW1/4 along with Will and GPA which were placed on record as Ex. PW1/5 and PW1/6 respectively. Undertakingcumpossession letter allegedly executed by the defendant no. 1 was placed on record as Ex. Suit no. 255/08 Prem Late vs Bhal Singh Page No. 10/45 PW1/7 and site plan as Ex. PW1/8 which was got prepared by witness himself in respect of the suit property. The documents Ex. PW1/3 to Ex. PW1/7 were stated to be bearing the signatures of the defendant at point A and the plaintiff at point B.
16.Further, it was stated by PW1 in para no. 4 of his affidavit that since, the land in question was an agricultural land hence, before execution of sale deed by vendor, the necessary no objection certificate on the part of Bhumidar/vendor was required to be obtained and only then, the sale deed could have been executed.
17.However, it also pertinent to mention herein that this fact was also not pleaded by the plaintiff in her plaint and as such was beyond the pleadings along with fact of her being a Pardanashi Lady hence, was inadmissible in evidence.
18.In rest of the contents, the story of the plaint had been repeated by PW1, who had further placed on record the copy of legal notice as Ex. PW1/9, original postal receipt as Ex. PW1/10 and UPC receipt as Ex. PW1/11. However, at the time of tendering of evidence, only documents Ex. PW1/1 to PW1/8 were tendered by him in his examinationinchief.
19.During his crossexamination by Ld. Counsel for the defendant no. 1, PW1 had stated that the plaintiff had executed the aforesaid SPA in his favour at Tis Hazari Courts, Delhi. Despite admitting earlier that the plaintiff had not come to the Court for execution of the SPA, later on the witness had taken the U turn and submitted that Suit no. 255/08 Prem Late vs Bhal Singh Page No. 11/45 the plaintiff had come to the Court for execution of the SPA in the year 1999. The SPA was stated to have prepared by one Advocate Sh. Ved Kumar Rana. However, he was not able to cite the name of the witness who had attested the same. He had denied the suggestion that the plaintiff had not appeared before the Notary public and SPA was signed by her at her home. The consideration amount was stated to have been paid to the defendant no. 1 by PW1 at his (plaintiff's) home.
20.It is further pertinent to mention and point out here itself that deposition of the PW1 in this regard was quite contrary to the factual assertions made by the plaintiff in para no. 2 of the plaint, wherein the plaintiff had claimed herself to have made the payment of the sale consideration amount whereas in his crossexamination, SPA of the plaintiff himself was claiming to have made the aforesaid payment.
21.Further, amount of consideration was stated to have been paid by PW1 to the defendant no. 1 at the house of the plaintiff and Sh. Om Prakash, Sh. Duli Chand and the plaintiff herself as well as her children were stated to be present at the home at the time.
22.However, witness had not been able to remember the denomination of currency notes by way of which the aforesaid payment was made. The aforesaid amount was stated to have not been withdrawn from the bank but was collected by him and was kept at his home. All the documents in respect of the transaction were stated to have been prepared at Tis Hazari Courts, Delhi and Suit no. 255/08 Prem Late vs Bhal Singh Page No. 12/45 were attested by one Sh. S. N. Mehra, Advocate on the date of their execution itself. No payment was made before the said Advocate Sh. S. N. Mehra by PW1 to the defendant no. 1. Rather, the same was stated to have been made even prior to the execution of the documents. He had also admitted the fact that Notary Sh. S. N. Mehra was not even present at his home when the payment was made nor even Sh. D. K. Sharma, Advocate was present at the time of payment. PW1 had denied the suggestion that the defendant used to purchase liquor and other articles from him. It was also denied by him that the defendant had to repay any debt to him or that he had got the documents signed as the defendant no.1 had failed to pay certain debts to him after serving liquor to the defendant no. 1 and under its influence. It had also been denied by him that there was no dealing and transaction between the plaintiff and the defendant no. 1. PW1 had no Khasra Girdawari in respect of the suit land as it was stated to be not mutated in his name. He had also denied the suggestion that the plaintiff was not in possession of the suit property which was in possession of the defendants no. 2 to 4. However, it was stated by him that he had no document issued by Revenue Department to show his possession in respect of the suit property. The plaintiff herself was stated to be present at the time of execution of the documents for sale of suit property and was also stated to have appeared before Sh. D. K. Sharma, Advocate as well as Sh. S. N. Mehra, Notary Public at the time of execution and attestation of documents of sale in respect of the suit property.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 13/45
23.Quite contrary to his version as taken by him in his examination inchief, during his crossexamination, PW1 had admitted it to be correct that his wife was not a Pardanashi Lady. The witness Duli Chand was stated to have expired and Sh. Om Prakash was stated to be alive on the date of his crossexamination and quite contrary to his earlier version, the payment was stated to have been made by him only in the presence of his wife.
24.The defendant no. 1 was stated to be known to him since his childhood and was stated to have been in good terms with him. The plaintiff had studied up to 7th Class but did not know English language. PW1 himself was stated to have studied up to 10th Class. He had denied the further suggestion put to him that signatures of the defendant no. 1 were forged by him. However, it was admitted by him that the defendant no. 1 used to consume liquor but he had never seen him in a drunken condition. Further it was deposed by him that the factum of the defendant no.1 consuming liquor had come to his knowledge as the children of the defendant no. 1 used to beat him for this reason. However, he had only heard about the beating of the defendant no.1 by his children but had never seen so from his own eyes. Distance between the house of the plaintiff and the defendant no. 1 was stated to be around 250 Meters and both of them used to pass through each other's house through the same Gali. No demarcation of the suit property was got done by the Revenue Department.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 14/45
25.In his further crossexamination dated 14.08.2006, PW1 had claimed himself to be in possession of the suit property. However, he was not in possession of any Revenue Record to show the same as their was no mutation of property in his own name.
26.Quite contrary to his version as taken in his examinationinchief, regarding preparation of site plan, during his crossexamination, it was deposed by him that the site plan Ex. PW1/8 was prepared by the draftsman upon instructions of his Counsel Sh. D. K. Sharma, without visiting the suit property. In view of this version, even the site plan cannot be regarded as duly proved in accordance with the provisions of law.
27.All documents in respect of the sale transaction were stated to have been firstly signed by the defendant no. 1 and thereafter, by other persons but he had not been able to furnish the exact sequence thereof. The sale amount was stated to have been agreed at Rs. 1,00,000/ which was paid by PW1 on 15.11.1996 itself at about 910 A.M. and the said amount was stated to have been saved by him from his own earnings which fact is again contrary to his previous crossexamination wherein he had stated that the money was collected by him and was thereafter, kept at his home. Now, he had been claiming the aforesaid amount as personal savings from his earnings and not his collections as was deposed earlier. Disposal of the property by the defendant no. 1 to the defendants no. 2 to 4 was stated to have come to his notice only after the service of the defendant no. 1 and it was stated further by him that it was not within his knowledge that agricultural land Suit no. 255/08 Prem Late vs Bhal Singh Page No. 15/45 could not be sold in parts. One case under Excise Act was also stated to be pending against him. However, he had denied the suggestion that he had obtained the signatures of the defendant no. 1 at blank papers under influence of liquor after serving the same to him. It was also denied by him that there was no agreement between the defendant no. 1 and himself regarding selling of the land in question. This fact is again contrary to plaintiff's own pleadings wherein she had claimed that agreement to sell was entered between her and defendant no. 1.
28.PW2 is one Sh. Duli Chand son of Sh. Kalia who had filed in evidence, his examinationinchief by way of affidavit Ex. P2 wherein he had identified his signatures on documents Ex. PW1/2 to Ex. PW1/7 at point C thereof. Besides this, he had also claimed himself to be an eye witness of handing over the physical possession of the suit property by the defendant no. 1 to the plaintiff in his presence. He had also claimed further to be an eye witness to the payment of money by plaintiff and her husband to the defendant no.1.
29.However, during his crossexamination by Ld. Counsel for the defendant no. 1, it has been deposed by him that the plaintiff was known to him for last 2022 years and she was not a Pardanashi Lady and belonged to his own village. Some documents were also stated to have been executed through which the defendant no.1 was stated to have sold the suit property to the plaintiff. However, the witness was not aware about the contents of those documents though the same were also read over to him. Those documents were stated to have been executed at Tis Hazari Courts Delhi in the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 16/45 presence of the plaintiff, her husband, the defendant no. 1, Sh. Om Prakash as well as PW2 himself and the same were stated to have signed firstly by the defendant no. 1 and thereafter, by the plaintiff followed by signatures of Sh. Om Prakash and PW1 himself. The consideration involved in the transaction was Rs. 1,00,000/. However, the same amount was not paid by the plaintiff to the defendant no. 1 in his presence. This deposition of PW2 itself is contrary and destructive of his own version as taken by him in his examinationinchief that he had witnessed the payment.
30.Quite contrary to the case of the plaintiffs, this witness had stated during his crossexamination that only an amount of Rs. 1800/ was paid in his presence by the plaintiff to the defendant no. 1 and that too much prior to the date of the execution of the documents by the defendant no. 1 who had also put his signatures on some papers. The witness was not aware about the Khasra number of the suit property nor even about the person who was in possession of the same as he had never visited the suit land. Again this statement was contrary to his earlier version of being an eye witness to the handing over of the possession by the defendant no.1 to the plaintiff. The defendant no. 1 was stated to have signed in English. However, PW2 himself had never seen any document from which he could have ascertained the possession of the plaintiff on the disputed land. He had identified the signatures of the plaintiff as well as the defendant no. 1 on documents Ex. PW1/D1 as well as PW1/D2 which were nothing but the statements of the parties recorded by officials of the P.S. Bawana on 14.05.2012. PW2 had further denied the suggestion put to him during his cross Suit no. 255/08 Prem Late vs Bhal Singh Page No. 17/45 examination that the defendant no.1 had signed the blank papers or that he had never sold the suit property to the plaintiff. The possession of the land was stated to have been delivered by the defendant no. 1 to the plaintiff and the total land out of which the suit land was transfered was stated to be measuring 4 Bighas and 16 Biswas and the plaintiff was stated to be possession of land towards western side which fact was again contrary to the version of the plaintiff, who had claimed herself to be in possession of the portion falling in southwest direction and not in western side as mentioned in para no. 3 of her plaint. PW2 had denied the suggestion that the documents were got executed from the defendant no. 1 after administering liquor to him and at the end of his crossexamination, he himself had destroyed his entire claim by deposing that the affidavit filed by him in his evidence was signed by him at his home and he was not aware about the person, who had prepared the same and he was not even aware about its contents which were though read over to him by his Counsel which fact shows that the affidavit filed by the witness in his evidence did not contain his own averments but the averments made by the Counsel on his behalf which were later on put in his mouth. It was denied by him that he was deposing falsely being a relative of the plaintiff.
31.PW3 who has been wrongly numbered as PW1, Sh. Om Prakash S/o Sh. Bhim Singh, had also placed on record his examinationin chief by way of affidavit Ex. P1, wherein he had also claimed himself to be an eye witness of execution of agreement to sell and documents Ex. PW1/2 to Ex. PW1/7 were stated to be bearing his Suit no. 255/08 Prem Late vs Bhal Singh Page No. 18/45 signatures at point 'D'. Besies this, he had also claimed himself to be an eyewitness to the payment of consideration amount by plaintiff and her husband to the defendant no. 1 and latter's transfer of physical possession in their favour.
32.During his crossexamination, he had deposed that the plaintiff was known to him being belonging to the same village but she was not in his relation.
33.Quite contrary to the version of PW1 and PW2, it was deposed by PW3 that the plaintiff was a Pardanashi Lady. The documents between the plaintiff and the defendant no. 1 were stated to have been executed at Tis Hazari Courts Delhi in the presence of PW3 himself as well as PW1 and PW2. However, he could not tell about the time of his departure from his house for the purpose of witnessing the said execution. The witness had also expressed his inability to tell the exact date when the plaintiff had made the payment of Rs. 1,00,000/ to the defendant no. 1. However, the possession of the property was stated to have been handed over to the plaintiff by the defendant no. 1 on the next date of receiving the payment which was paid in the presence of this witness to the defendant no. 1. However, he had no knowledge regarding the sources of arrangement of money made by the plaintiff. Further, it was deposed by him that he had not seen any document of ownership of the plaintiff in respect of the suit property nor he was aware about the Khasra number of the suit property. However, the land in possession of the plaintiff was stated to be measuring 5 Suit no. 255/08 Prem Late vs Bhal Singh Page No. 19/45 Bighas as contrary to the claim of the plaintiff herself and again he had stated that the share of the plaintiff in the suit property was situated at western side instead of southwest direction which is contrary to the case of the plaintiff herself. Relationship between the parties before execution of the documents was stated to quite good and PW3 was not aware about the person, who was in possession of the suit land. This statement is again contrary to his earlier version relating to transfer of possession by the defendant no. 1 in favour of the plaintiff. He had denied the suggestion that the defendant no. 1 had never visited the Tis Hazari Courts Delhi or that his signatures were obtained under the influence of liquor or that same were forged and fabricated. It was also denied by him that he was deposing in favour of the plaintiff (wrongly typed as defendant) being his relative. Lastly, it had been deposed by him that affidavit filed by him in evidence was prepared by his Counsel and he had only singed the same and the contents of the affidavit were read over to him by his Counsel, which fact shows that witness had not uttered his own version on record rather the version of his counsel had come out from his mouth.
34.Last witness examined by the plaintiff, who has been wrongly numbered as PW2 was Sh. D. K. Sharma, Advocate who had identified his signatures at point A on documents Ex. PW1/2 to Ex. PW1/7 and their attestation was also stated to have been done by Notary in his presence as well as presence of the parties and witnesses.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 20/45
35.During his crossexamination by Ld. Counsel for the defendant no. 2 to 5, it was deposed by him that he was not in a position to remember the names of the attesting witnesses, who were two persons aged about 35 - 40 years and with normal appearance having wheatish complexion. One of those attesting witness was stated to have signed in Hindi whereas he could not remember the script in which the other witness had signed those documents. The Notary Public was stated to be having his seat in front of the Central Hall of Tis Hazari Courts, Delhi but he could not remember his name. The documents were stated to have been executed and attested on 15.11.1996 at about 11.00 A.M. within a period of 30 minutes which were consumed in the entire process. The plaintiff herself was stated to be present along with witness Sh. Om Prakash and had also signed those documents in the presence of PW. PW was also paid Rs. 3300/ towards his professional fee and the plaintiff was stated to be known to him for even six months prior to the said date i.e. 15.11.1996 and he had also claimed to have identified the plaintiff if he had seen her. Plaintiff was also stated to have visited him earlier as well in connection with some other personal work and her husband also used to accompany her. No consideration was stated to have exchanged between the parties on 15.11.1996. However, he was informed about the fact that consideration had already been exchanged by the husband of the plaintiff. Hence, this fact itself is inadmissible in evidence as deposed by this witness being based on hearsay and the same had also been the fate of his further deposition about information received by him from the defendant no.1 regarding his receipt of consideration. Although, the receipt Ex. PW1/3 was stated to have Suit no. 255/08 Prem Late vs Bhal Singh Page No. 21/45 been executed in his presence but no cash amount was paid in lieu of its execution. This witness had not put his signatures in the register of Notary Public and he had only read over and explained the contents of the documents Ex. PW1/2 to Ex. PW1/7 to both the parties before their signatures on the same. Even the stamp papers for execution of all the documents were also not purchased in his presence. He had denied the suggestion that none of the parties had requested him to draft all the documents or that none of them more particularly plaintiff was known to him prior to 15.11.1996. It was also denied by him that the plaintiff was a Pardanashi Lady as she had never behaved like Pardanashi Lady in his presence. It was also denied by him that he was not present at the time of attestation of documents hence he had not signed the register of Notary Public.
36.In his crossexamination by Ld. Counsel for the defendant no. 1, it was deposed by him that the defendant no. 1 was not known to him even prior to 15.11.1996 as he had not seen him prior to the said date nor he had seen him writing or signing before the said date. He had denied the suggestion that the defendant no. 1 was not present in the Court on 15.11.1996 nor he had signed the documents in his presence. However, it was deposed further by him that he had not asked for any proof of identification from the defendant no. 1 on 15.11.1996 and he had also not kept any record regarding the drafting of the said documents. However, it was admitted by him that the possession of the suit property was not handed over in his presence and he had never visited the suit property at any point of time. He had denied the suggestion that documents Ex. PW1/2 to Suit no. 255/08 Prem Late vs Bhal Singh Page No. 22/45 Ex. PW1/7 were prepared by him only at the instance of the plaintiff. However, it was further admitted by him that the date appearing at the portion encircled in red colour in Ex. PW1/6, Ex.PW1/2 and Ex. PW1/5 were not initiated by any of the parties or PW himself or by the Notary Public.
37.It is pertinent to mention here itself that perusal of these encircled portions on the exhibited documents revealed that the date of 15.11.1996 had been filled therein by blue ink and it is not typed whereas at the other places of the documents, the same had been duly typed as 15.11.1996 by the typewriter which shows that the document were not prepared on 15.11.1996 itself as was claimed by PWs. Rather the dates were left blank at the aforesaid portions to be filled later on by the plaintiff so as to give them the colour of having been executed on the said date. This act cannot, by any stretch of imagination, be even regarded or considered as a typographical error rather it clearly appears to be an intentional and deliberate act on the part of the plaintiff.
38.All the documents were stated to have been signed by the parties as well as by attesting witnesses at the seat of Notary Public itself and he had denied the suggestion that all the documents Ex. PW1/2 to Ex. PW1/7 had already been prepared prior to 15.11.1996 and the dates were later on inserted in the documents subsequently in order to show that they were executed on 15.11.1996. The witness had expressed his inability to remember the name of the person who had written the dates in those documents with pen and lastly it had been denied by him that Suit no. 255/08 Prem Late vs Bhal Singh Page No. 23/45 neither the defendant no. 1 had appeared nor signed any such document in his presence on 15.11.1996. Thereafter, PE was closed.
39.In rebuttal, the defendant no. 1 appeared as his own witness in defence and had filed in evidence, his examinationinchief, by way of affidavit Ex. DW1/A which is nothing but a replica and repetition of the contents of his written statement on solemn affirmation.
40.During his crossexamination by Ld. Counsel for the plaintiff, it was stated by him that her husband and plaintiff were known to him since his childhood as they belonged to the same village. He was not owning any agricultural land as on the date of his deposition which though was owned earlier by him but he could not remember as to whether he was the owner of the land falling in Khasra no. 30/25 of the Revenue Estate of Village Harevli. He was stated to be the owner of 1 Acre land which was later on sold by him to Sh. Suresh and his brothers, who were the residents of village Ghogha and further, it was confirmed by him that the suit property falling in Khasra no. 30/25 was the same land which he had sold to Sh. Suresh and his brothers. Sh. Duli Chand and Sh. Om Prakash were also stated to be known to him. However, he had failed to understand the contents of his affidavit filed in evidence nor he was aware about any of provision of Delhi Land Reforms Act or about the jurisdiction of Civil Court. However, he had sticked to his version that his signatures were obtained by Sh. Kapil Muni by playing a fround upon him after getting him drunk when he was in a state of unconsciousness. However, he could not remember any Suit no. 255/08 Prem Late vs Bhal Singh Page No. 24/45 date, month and year of the said incident. He had further disowned the factum of getting drunk by the hands of the husband of the plaintiff in the public function as was deposed by him in his affidavit. The knowledge of this fraud being played upon him was stated to have been acquired by him only after service of summons sent to him by the Court in the present case. However, still no complaint was ever lodged by him either with the police or with other any authority in respect of this cheating/fraud. He was not aware about registration of any FIR against him by the plaintiff and further, he could not say as to whether the documents Ex. PW1/2 to Ex. PW1/7 were the same documents which were got signed from him by the husband of the plaintiff under influence of liquor. No inquiries were stated to have been made by him either from the attesting witnesses of the documents or the stamp vendor or the Notary Public. No documents were executed in respect of the friendly loan of Rs. 60,000/ allegedly taken by him from the husband of the plaintiff. Once the defendant no.1 himself had discarded his affidavit, hence his testimony had failed before the Court as was also observed by Ld. Predecessor on 04.09.2009.
41.DW2 is one Sh. Ashwani Kumar and DW3 is one Sh. Subhash, who had also placed on record their testimonies by way of affidavits Ex. DW2/A and Ex. DW3/A respectively wherein they had stated that the defendant no. 1 had friendly terms with the husband of the plaintiff and had taken some money from him in the form of friendly loan from him from time to time and in all a sum of Rs. 60,000/ was taken by him and it had appeared that by taking an undue advantage of the said friendly relations, the husband of the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 25/45 plaintiff had obtained his signatures on some blank papers during his being under the state of drunkenness and it was also stated that the sale transaction was nonest and the same was illegal and nonexistent in violation of provisions of Delhi Land Reforms Act. The plaintiff was also stated to be not in possession of the suit property.
42.During his crossexamination, it was deposed by DW2 Sh. Ashwani Kumar that he was son of the uncle of the defendant no. 1 but the plaintiff was also known to him. He was not aware about any agreement to sell entered between the plaintiff and defendant no. 1. Even the loan of Rs. 60,000/ as mentioned by him in his affidavit was not taken by the defendant no. 1 in his presence. However, the said fact was told to him later on by the defendant no. 1 and the same was his reply with respect to procurement of signatures of the defendant no. 1 on blank papers by husband of the plaintiff and therefore, his testimony to this effect was inadmissible in evidence being based on hearsay. Further, he had expressed his ignorance regarding the applicability of provisions of Delhi Land Reform Act in the present case. However, he had claimed his presence at the time of execution of sale deed by the defendant no. 1 in favour of the defendants no. 2 to 4 and had denied the suggestion that he was deposing falsely at the instance of the defendant no. 1.
43.During his crossexamination by Ld. Counsel for the plaintiff, it was deposed by DW3 that Sh. Bhal Singh/defendant no. 1 was his brother in village relations. However, he had denied the suggestion Suit no. 255/08 Prem Late vs Bhal Singh Page No. 26/45 that they were having the common grandfather namely Sh. Bharat Singh. He had also shown his ignorance regarding the concealment of facts made by the plaintiff in the present suit. Relationship between the husband of the plaintiff and the defendant no. 1 was stated to be cordial by DW3 and it was also deposed by him further that the defendant no.1 was habitual of taking liquor and therefore, it was possible that some signatures of the defendant no. 1 might have been taken on some blank papers by the husband of the plaintiff.
44.However, it is pertinent to mention here itself and that witness had not precisely and accurately deposed about this fact and had merely expressed his apprehension about the documents having so procured by the husband of the plaintiff in the said manner.
45.He had also not been able to cite any source of his acquiring knowledge regarding the fact of obtaining signatures of the defendant no. 1 on blank papers by the husband of the plaintiff. He also could not say as to whether the signatures appearing on Ex. PW1/2 to Ex. PW1/7 were those of the defendant no. 1 or were forged by the plaintiff. The defendant no. 1 was stated to be owner of 5 Bighas of land in the year 1996 and later on the DW3 was stated to have acquired the acknowledge about the sale of the land by the defendant no. 1 in favour of Sh. Ramesh Chand, Sh. Balwant Singh and Sh. Suresh Chand all sons of Jai Narian. However, none of the events related to the sale transaction between the plaintiff and the defendant no. 1 was stated to have happened before or witnessed by DW3 and lastly he had stated that he had no Suit no. 255/08 Prem Late vs Bhal Singh Page No. 27/45 knowledge about the contents of his affidavit Ex. DW3/A and therefore, his testimony had also fallen before the Court.
46.Besides examining the witnesses as well as exhibiting the documents on record, the parties to the suit had also filed their respective written submissions on record.
47.In her written submissions filed on record, the plaintiff had contended that during the pendency of the suit, the defendant no. 1 had transfered the land in favour of the defendants no. 2 to 4, who had further transfered the same in favour of the defendant no. 5 and all those persons were also impleaded as party so that in case, the suit being decreed in favour of the plaintiff then the last owner could have been asked to execute the sale deed in her favour. Further, she had relied upon the crossexamination of his witness Sh. Duli Chand recorded on 15.09.2004 wherein he had answered in affirmation to the question relating to the execution of documents of sale of property by the defendant no. 1 in favour of the plaintiff. Further, she had stated that all documents stood duly proved on record by virtue of evidence of PW Sh. D. K. Sharma, Advocate whose signature were appearing on each and every document at point A and therefore, it was submitted further that since the defendants no. 2 to 5 had chosen not to adduce their evidence on record hence, an adverse inference was bound to be drawn against them.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 28/45
48.However, I am not impressed with these contentions and arguments of the plaintiff as it is the settled preposition of law that even if the defendants had chosen not to adduce any evidence on record or even if their evidence had fallen in the Court, then also neither any adverse inference can be drawn against them nor the plaintiff could be held entitled to a decree being passed automatically in her favour as suit of the plaintiff has to stand on its own legs and she could not have been thus permitted to run/shy away from her responsibility of proving her allegations on record by preponderance of probabilities.
49.Another argument had been taken by the plaintiff in her written submissions that there was no plea regarding the alleged violation of Section 33 and 45 of Delhi Land Reforms Act, 1954 and hence, in the absence of pleadings to that effect or any objections taken by him in his written statement, the defendant no. 1 could not have been allowed to raise such plea at the stage of final arguments. However, I do not find any merits or force in this argument of the plaintiff as well as it is the settled preposition of law that legal objections can be raised by parties at any moment without even incorporating them in their pleadings.
50.So far as the question of proving of documents by PW Sh. D. K. Sharma, Advocate is concerned, once the said witness himself had admitted during his crossexamination itself that he had not verified the identification of the person signing before him as Sh. Bhal Singh (defendant no. 1) and on the other hand the defendant no. 1 had completely denied the execution of any such document Suit no. 255/08 Prem Late vs Bhal Singh Page No. 29/45 then it cannot be held that those documents stood duly proved in accordance with law as the alleged author there of himself had denied their execution.
51.Although, the defendants no. 2 to 5 had chosen not to adduce any evidence on their behalf but they had also placed on record their written submissions. In their written arguments filed on record, the defendant no. 2 to 5 had stated that on 25.06.1999, the defendant no. 1 had sold out this property to them for a total sale consideration of Rs. 1,00,000/ vide registered sale deed and since then they were in possession and occupation thereof.
52.Perusal of record reveals that the present suit was filed by the plaintiff only on 03.08.1999 whereas the sale transaction in respect of these defendants had already been completed on 25.06.1999. Hence, I do not find any merits and force in the arguments of the plaintiff that the defendant no. 1 had sold out the property to the defendants no. 2 to 4 during the pendency of the present suit. Rather, there is no hesitation in my mind in holding that the suit property had already been sold out to the defendants no. 2 to 4 by the defendant no. 1 much prior to the filing of the present suit itself.
53.It has been argued further on behalf of the defendants no. 2 to 4 that since the date of its purchase, they had remained continuously in actual physical possession and had also cultivated the land without there being any interference in their possession on the side of the plaintiff till 20.01.2005 when the aforesaid property was sold by them to the defendant no. 5 herein.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 30/45
54.Perusal of record reveals that since there was no stay order operating against the defendants from alienating the suit property hence, they cannot be held guilty for any breach of the Court direction. Further, they had also cited the bar of provisions of Delhi Land Reforms Act which expressly prohibited such transactions and also stated that unless and until the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure filed on behalf of the plaintiff as well as under Section 340 Code of Criminal Procedure filed on behalf of the defendant no.3/Sh. Balwant Singh were disposed off, the suit could not have been finally dispossed off. However, I do not find any merits and force in the arguments of the defendants as well because once the plaintiff had not pressed his application under Order 39 Rule 1 and 2 Code of Civil Procedure through out the trial then same was presumed to have been dismissed as not pressed and so far as the application under Section 340 Code of Criminal Procedure is concerned, the same had already been dispossed off vide separate order passed on the event date.
55.Defendant no. 5 in her written submissions had also cited bar of provisions of Section 19 of Specific Relief Act as well as Section 45 and 33 of Delhi Land Reforms Act, 1954. The Section 19 of Specific Relief Act is reproduced under :
"19. Relief against parties and person claiming under them by subsequent title Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against
(a) either party thereto;Suit no. 255/08 Prem Late vs Bhal Singh Page No. 31/45
(b) any other person claiming under him by a title arising subsequently to the contract, expect a transferee for a value who has paid his money in good faith and without notice of the original contract."
56.Further it was contended on her behalf that a property having value of more than 100 Rs. cannot be transfered without registered documents. In support of her contentions she had also placed reliance on the following legal prepositions :
"II. SALE HOW BE MADE :
"Such transfer in case of tangible immovable property of the value of Rs. 100/ and upwards or in the case of reversion or other tangible they can be done only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property."
1. HARI KRISHNA VS K.C.GUPTA, AIR 1949 ALL 440 :
"Where the plaintiff considers that the damage would be adequate compensation e.q. in case of sale of immovable property and by his conduct indicates that he is willing to accept damages for breach of contract, the Court may justify in decreeing compensation as adequate relief instead of decreeing specific performance."
2. RAGHUNATH VS. KEDARNATH, AIR 1969 SC 1316 :
"There is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with the provision of Transfer of Property Act."Suit no. 255/08 Prem Late vs Bhal Singh Page No. 32/45
3. M. L. AGGARWAL VS ORIENTAL BANK OF COMMERCE, 128 (2006) DLT 407 (DB) :
"In our opinion, there is no merit in this petition. The petitioner had only produced an Agreement to sell, will and a power of Attorney and a receipt for the payment of money but these, in our opinion, do not constitute a sale. Under section 17(1)(b) of the Registration Act, sale of an immovable property cannot be made or purchased by a mere power of attorney or agreement for sale.
From the facts of the case, we find no merit in this petition. In our opinion the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell."
4. KANHIYA VS SIDDHNATH L. LODHA : AIR 2005 M. P. 238.
"It was held that the possession was granted to him was not established by satisfactory evidence - on contrary order passed by revenue authorities showed that the plaintiff was not in possessionin circumstances. It would not be appropriate to grant a decree of specific performance of contract."
5. HARINDERPAL SINGH VS RANI : AIR 2005 P&H 151 :
"It was held in this case that plaintiff had alleged that the defendant had executed an agreement to sell land in favour of the plaintiff for Rs. 20,000 plaintiff made a part payment of Rs. 10,000 and was also ready and willing to pay balance amount of consideration. However, defendant had sold said land to other person Trial court and first appellate court concurrently held that plaintiff was not in possession of suit landalso that the said other person were bona fide purchasers for considerationin circumstance decree for payment of Rs. 20,000 instead of specific performanceProper. It was further held in para in 17 of this citation "The court below have appreciated the entire Suit no. 255/08 Prem Late vs Bhal Singh Page No. 33/45 evidence and thereafter have come to conclusion that defendant 2 and 3 were bona fide purchasers for consideration D.W.3 Jaswant Singh and DW 4 Ishwar Singh have clearly stated in their statement that they made enquiries before purchasing the suit land. The crucial factor is that the agreement to sell is dated 18.03.1975 and the sale deed were executed on 19.12.1983 and 20.12.1983 and there is no mention of the agreement to sell in the revenue record. The agreement of sale saw the light of the day after more than eight and half years. No one is expected to scan the revenue record of such a long period when normally in a maximum number of case, the limitation as prescribed in the limitation act, 1963 is three years."
IN AIR 2005 PUNJAB & HARYANA 37 :
"It was held; The perusal of the agreement Ex. P1 shows that the vendor was not clear as to how much land is available to be sold out of the land measuring 52 Kanals 18 Malrlas, the agreement also does not specify as to how much land out of the aforestated total land stood sold and what was remaining land available for execution of the sale deed. It is also not recorded as to from which revenue record the aforestated factum would be determinable, again a vague averment that upon elucidation of the revenue record what ever land is available to be sold the same shall be sold by way of execution of the sale deed. The vendee obviously was not also aware as to how much land is being bought by him."
IN LALJI VS. MARIYAM BAI ; AIR 2007 CHH 21 :
"It was held that under these circumstances, under Section 49 of Registration Act, the document Ex.P1, in the absence of Registration, could not confer any title to Mariyam Bai over the suit lands, it is also pertinent to note that the document Ex.P1 is vague inasmuch as the description of the land suit does not find place therein."Suit no. 255/08 Prem Late vs Bhal Singh Page No. 34/45
B. RAJAMANI VS. AZHAR SULTANA : AIR 2005 A. P. 260 :
"it was held that subsequent transferee purchasing immovable property for value, in good faith and without notice of earlier contractmaking such statement before courtburden shifts on plaintiff seeking specific performance to lead rebuttal evidenceplaintiff not making any averments in plaint that subsequent purchaser was aware of earlier contract and was not bona fide purchaser though such averment made in rejoinder, leave of court to file it not obtainedplaintiff husband not adverting to allegation made in rejoinderstatement of defendant that subsequent purchaser had no knowledge of earlier contract remaining unrebuttalplaintiff not entitled to specific performance in facts of the case."
IN RANGANATHA GOUNDER VS SAHADEVE GOUNDER : AIR 2004 MAD 520 :
"It was held Bona fide purchaseragreement of sale between "A" and "B" vendee "B" not showing readiness and willingness to perform his partvendor "A" sold property to "C" no evidence to substantiate claim of "B" that he was in possession of suit property from date of sale agreement"C" was not aware of sale agreement between "A" and "B"even if such sale agreement was in existence, it would not be binding on "C" "C" who was handed over possession of suit property by "A" on date of sale deed would be bona fide purchaser."
RAM LAKHAN VS RAM GOVIND : AIR 1977 ALL 328 ;
It was held "The second contention, which learned counsel raised, is to the effect that the benefit of Section 41 of T.P.A. was wrongly extended to the defendant no. 4, Ram Govind, in the absence of any finding that he had made necessary enquiries which he was bound to do in circumstances of the case. S. 41 of the Transfer of Property Act, seems to be a mistake in such as the said provision of laws is not at all applicable to the facts of the case. The said provision speaks of Suit no. 255/08 Prem Late vs Bhal Singh Page No. 35/45 a transfer by an ostensible owner and we are not concerned here with any such situation. It is a suit where the real owner and not the ostensible owner transfered the property, but did so in favour of a party who came on the scene subsequent to the plaintiff who had a prior agreement for the sale of property. Learned Counsel, therefore, correctly drew my attention to S. 19(b) of the Specific Relief Act, which lays down as under :
"19 Except as otherwise provided by this chapter specific performance of a contract may be enforced against :
(a) .............
(b) any other person claiming under him by a title arising subsequent to the contract, except a transferee for a value who has paid his money in good faith and without notice of the original contract"
57.In his written submissions, the defendant no. 1 had also cited the bar of Section of 45 and 33 of Delhi Land Reform Act, which are reproduced here under :
"SECTION 45 :
Transfer made in contravention of this Chapter to be void. [(1)] Any transfer made by or on behalf of a Bhumidhar or Asami in contravention of the provision of this Chapter shall be void.
[(2)] Nothing in sub section (1) shall apply to any transfer which has been exempted by the Chief Commissioner [under the proviso to sub section (1) of section 33]."
"SECTION 33 :
(Note : Substituted by Act No. 24 of 1960) Restrictions on the transfers by a Bhumidhar. Suit no. 255/08 Prem Late vs Bhal Singh Page No. 36/45 [(1) (Note: Renumbered by Act 38 of 1956)] No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi :
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed one acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3.
(2) (Note : Inserted by Act 38 of 1965) Nothing contained in sub section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him;
Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub section (1) Explanation - For the purpose of this Section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be.
58.It has been submitted that the agreement to sell allegedly executed on 15.11.1996 was void abinitio and thus could not have been acted upon and in this regard reliance had also placed on Section 14(1) (a) of Specific Relief Act, which is also reproduced below : SECTION 14.
Contracts not specifically enforceable. Suit no. 255/08 Prem Late vs Bhal Singh Page No. 37/45 (1) The following contracts cannot be specifically enforced, namely :
(a) a contract for the nonperformance of which compensation in money is an adequate relief;
and thus, it was submitted that once the alleged agreement to sell itself was void abinitio then the plaintiff was not entitled to claim any possession/specific performance or damages and compensation on the basis of the same.
59.It was also stated by him that suit property had been transfered in favour of the defendants no. 2 to 4 by way of registered sale deed which fact was also admitted by the plaintiff and therefore, those subsequent purchasers were impleaded as party to the present suit and hence, it was stated that an admitted fact required no evidence to be led to prove the same and the plaintiff had also miserably failed to prove his possession in respect of the suit property as well. Further, reliance had also been placed on the deposition of DW2 and DW3. However, as had already been observed earlier that their testimonies since had fallen before the court were of no use and benefit to the defendant. PWs were also stated to be interested witnesses and hence, their testimonies also did not carry any weight and had any evidencery value.
60.After perusing the entire material on record, I have no hesitation in holding that the plaintiff had been relying upon the unregistered agreement to sell which also had not been duly proved by her on record and it also interesting to note that only first page of the said agreement to sell as well as last page bears signatures of the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 38/45 witnesses thereon but not on the continuing pages and they were signed only by the plaintiff and the defendant no.1. Though, it has been the case of the plaintiff that agreed sale consideration for the purpose of the transaction was Rs. 1,00,000/ which was already paid by her in cash in advance to the defendant no. 1 but if such contention of the plaintiff is to be believed to be true then I fail to understand the reliance of the clause 2 of the said document which read as under :
"that the balance if any due can be paid in installments against the said property/land by the vendee as and when asked by the vender"
So when nothing was left to be paid to the defendant no.1 by the plaintiff then there was no need and occasion for the parties to have introduced this clause/stipulation in the agreement. It is also important to note there that in the entire agreement, there is no stipulation/clause providing for a time frame settled between and agreed by the parties for execution of the sale deed which was a necessary and mandatory document to have followed this document. Further, it is also necessary to examine clause 4 of the said document wherein it was stated that the vendor had delivered not only the actual possession of the suit property to the vendee but also had handed over all the other concerned papers as well as documents of the property in original to the vendee and thus, vendee had become absolute owner of the same. However, none of those documents showing the chain of documents of title were either placed on record or produced by the plaintiff in the present case to show that the defendant no. 1 had besides executing the Suit no. 255/08 Prem Late vs Bhal Singh Page No. 39/45 aforesaid documents in her favour, also handed over the entire set of documents by way of which he himself was deriving his own right, title or interest in respect of the suit property. However, no explanation has been furnished regarding mentioning of the date by ink in clause 7 of the said document. Not only this, but also, it is also very interesting to note here that though the stamp paper showing execution of GPA Ex. PW1/6 found mentioning of the name of its purchaser at the backside as the defendant no. 1 but no name of purchaser had been mentioned at the stamp paper on which agreement to sell was executed. This fact also raises suspicion about the authenticity and genuineness of this document. It is also pertinent to mention here itself that apart from this stamp paper the remaining stamp papers on which the receipt, affidavit as well as undertakingcumpossession letter were executed, all of them were carrying the name of their purchaser at their back side except the document as discussed earlier. It is also interesting to note that even the affidavit Ex. PW1/4 allegedly executed by the defendant no. 1 in favour of the plaintiff also bears signatures of the attesting witnesses Sh. Duli Chand, Sh. Om Prakash and the plaintiff herself besides the signatures of Sh. D. K. Sharma as an identification witness which is an alien feature for a affidavit because affidavit is a self sworn statement of deponent which only requires his signatures or at best if the deponent has to be identified, it can be identified by lawyers but there is no need for obtaining signatures of the attesting witnesses as well as the plaintiff which fact also fortifies the claim of the defendant no. 1 that his signatures were obtained by the husband of the plaintiff on blank stamp papers which were later on converted into valuable Suit no. 255/08 Prem Late vs Bhal Singh Page No. 40/45 security documents showing transaction of the property in question otherwise, it would not have been so. The same is the position with respect to Will Ex. PW1/5. However, the same has not been proved on record in accordance with the provision of Section 68 of Indian Evidence Act. Hence, I have no hesitation in holding that no right, title or interest had either ever accrued or had passed on in favour of the plaintiff on the basis of those unregistered documents as compared to the title of the defendants no. 2 to 4 derived by them on the basis of registered sale deed executed in their favour by the defendant no. 1.
61.In view of the same, it is hereby held that the plaintiff is not entitled for a decree of Specific Performance of the agreement dated 15.11.1996 as has been prayed by her because she had also failed to appear in the witness box despite it being an admitted and established fact on record that she was not a Pardanashi Lady and due to the default committed by her in putting up her appearance an adverse inference was liable to be drawn against her.
62.So far as the recovery of amount of Rs. 1,00,000/ allegedly paid by the plaintiff as consideration for the sale transaction is concerned, I have no hesitation in holding that the plaintiff had also miserably failed to prove this fact as well on record even by preponderance of probabilities because in her entire claim, she had been claiming payment being made by herself to the defendant no.1 whereas the SPA had claimed himself to have made payment to the defendant no. 1 and that too without disclosing the source of his arrangement of money as at one place it was pleaded by him that Suit no. 255/08 Prem Late vs Bhal Singh Page No. 41/45 he had collected the money and had thereafter kept the same at his home whereas at the other place he was claiming to have saved the same out of his own earnings. However, there is no witness to the said transaction and even the receipt was also stated to have been executed without any payment actually exchanging hands as well at the time of its execution. The contradictions appearing in the statements of the PWs in this regard as had already been discussed in detailed in the preceding paras cannot be brushed aside in a lighter manner or discarded in toto. They have also proved fatal for the plaintiff's own case. Hence, I have no hesitation in holding that the plaintiff is not even entitled for recovery of any amount or interest thereon as had been claimed by her in the present suit.
63.So far as her entitlement to damage and compensation for the non performance of the agreement by the defendant no. 1 is concerned, perusal of statement Ex. PW1/D1 and PW1/D2 makes it amply clear that even at the time of entering into alleged transaction as had been claimed by the plaintiff, she was very much aware about the fact that the property could not have been mutated in her favour due to existence of legal bar with respect to the same. Hence, once she had incurred the risk of entering into transaction despite knowing its legal consequences and she had failed to prove this fact on record by adducing any evidence as to any actual loss being suffered by her and therefore, she cannot be held entitled to receive any compensation or damages from the defendant no. 1. Accordingly, the issue no. 1, 2 and 3 are decided in favour of the defendants and against the plaintiff.
Suit no. 255/08 Prem Late vs Bhal Singh Page No. 42/45 ISSUE NO : 4.
"Whether the suit is not maintainable?" OPD 2, 3 and 4.
64. Onus to prove this issue was upon the defendants no. 2, 3 and 4 but they had not adduced any evidence to this effect and since they were the subsequent bonafide purchasers of the property in question for valuable consideration in which the plaintiff was also asserting her own right, title and interest hence, without any hesitation it can be held that the suit of the plaintiff was not maintainable against them by virtue of provisions of Section 19 (b) of Specific Relief Act and accordingly, the issue is decided in favour of the defendants and against the plaintiff.
ISSUE NO : 5.
"Whether the suit is barred under the DLR Act ?" OPD1
65.Onus to prove this issue was upon the defendant no. 1, who had placed reliance of Section 33 and 45 of Delhi Land Reforms Act whereas the plaintiff in her written submissions had stated that since the bar of these sections was not cited by the defendant no. 1 in his written statement filed on record and therefore, now he was precluded and estopped from taking this objection. However, I do not find any merits or force in her submissions. When the suit property was admittedly an agricultural land falling in Khasra no. 30/25 within the Revenue Estate of Village Harevli, Delhi, which was governed by the provisions of Delhi Land Reforms Act. Once, the Delhi Land Reforms Act, 1954 which is a complete code in itself had specifically provided the mode and manner of transaction of Suit no. 255/08 Prem Late vs Bhal Singh Page No. 43/45 properties governed by it which was admitted by parties as well therefore, no transfer or alienation of the property could have taken place in contravention of its provisions. Hence, I have no hesitation in holding that Civil Court had no jurisdiction to decide the transfer or alienating of the property governed by provisions of Delhi Land Reforms Act and accordingly, the issue is decided in favour of the defendant no. 1 and against the plaintiff.
ISSUE NO : 6.
"Whether the suit is not maintainable as there is no previty of contract between the plaintiff and defendant no. 1?"
OPD1
66.Onus to prove this issue was upon the defendant no. 1, who had besides taking this plea in his written statement as well as in his affidavit filed in evidence had failed to adduce any further evidence on record. Though, he had denied the execution of the documents but had also claimed to have signed certain blank papers under the influence of liquor at the instance of husband of the plaintiff on the basis of which the present suit was alleged to have been filed hence, primafacie existence of a contract or agreement between the parties could not have been disputed or denied and further more, even the plaintiff had also failed to prove her case against the defendant no. 1 even by the preponderance of probabilities. Hence, I have no hesitation in holding that she had also failed to prove the existence of a valid and enforceable agreement between the parties and accordingly the issue is answered against the plaintiff and in favour of the defendant no. 1 and it is hereby held that there was no previty of contract between the plaintiff and the defendant no.1. Suit no. 255/08 Prem Late vs Bhal Singh Page No. 44/45 ISSUE NO : 7.
"Whether the suit is not maintainable for not proper valuation of the suit property?" OPD1
67.Onus to prove this issue was upon the defendant no. 1, who had taken the preliminary objections in his written statement to this effect and had also repeated the same in his affidavit filed in evidence. However, he had failed to disclose as to on what basis the plaintiff was required to value the suit property and accordingly, the issue is answered against the defendant no. 1 and in favour of the plaintiff.
RELIEF :
68.In view of my aforesaid findings of the issues, the suit of the plaintiff is hereby dismissed.
69.No order as to costs.
70.Decree sheet be prepared accordingly.
71.File be consigned to Record Room.
Announced in the open Court today the 18th April, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 18.04.2012 Suit no. 255/08 Prem Late vs Bhal Singh Page No. 45/45