Delhi District Court
Braham Prakash Naagar vs Sh. Subhash Chauhan & Anr on 17 January, 2017
IN THE COURT OF SH. SHAILENDER MALIK:
ADJ03(C)TIS HAZARI COURTS: DELHI
CS NO. 458/16/2006
In the matter of :
Braham Prakash Naagar
S/o Late Sh. Sriram
R/o 75, Rameshwar Nagar
Model TownIII, Delhi
...... Plaintiff
VS.
1 Sh. Subhash Chauhan & Anr.
R/o 86B, W(P) DDA Flats
Pitampura, Delhi
2 Smt. Nirmla
W/o Sh. Subhash Chauhan
R/o 86B, W(P), DDA Flats
Pitampura, Delhi ..... Defendants
Date of filing of the Suit : 15.12.2006
Date of reserving the Judgment/Order : 04.01.2017
Date of passing the Judgment/Order : 17.01.2017
SUIT FOR POSSESSION, MENSE PROFIT / DAMAGES
JUDGMENT:
1 This is a suit for possession, mense profit / damages. The plaintiff claims to be the absolute owner of the property bearing CS NO. 458/16/2006 Page 1/22 no.86B, First Floor, Pocket W(P), Pitampura, Delhi (herein after referred as "suit property"). Plaintiff claims to have purchased the suit property from one Shri Ajit Kumar Gupta against valuable sale consideration on 03.01.2000 vide registered documents like GPA, agreement to sell and receipts etc. It is stated that the suit property originally allotted to one Sh. Om Prakash by DDA in the year 1990. The aforesaid allottee took over the possession of the aforesaid suit property on 11.01.1991 and thereafter the said Sh. Om Prakash sold the property to one Sh. Surender Kumar on 23.08.1993. The said Sh. Surender Kumar subsequently sold it to one Smt. Shashi Chawla on 24.05.1996. The said Smt. Shashi Chawla, thereafter, sold the property to Shri Ajit Kumar Gupta on 08.11.1999. As such, Shri Ajit Kumar Gupta became absolute owner of the suit property from whom the plaintiff purchased the same.
2 It is further mentioned in the plaint that prior to purchase of the suit property by the plaintiff, the defendants were in unauthorized occupation of the suit property. Shri Ajit Kumar Gupta told the plaintiff that the property is in unauthorized occupation of the defendants even since the time of its purchase CS NO. 458/16/2006 Page 2/22 by him (Shri Ajit Kumar Gupta) from Smt.Shashi Chawla. It is stated that the plaintiff was assured by Shri Ajit Kumar Gupta that the defendant would be ready to vacate the suit property within the period of 4/5 months after finding another suitable accommodation. On such assurance, the plaintiff after purchasing the suit property in December 1999, visited the suit property and met with defendant no.1. The defendant no.1 stated to have assured the plaintiff that he would vacate the premises.
3 It is mentioned in the plaint that the plaintiff after taking into consideration the assurance and status of defendant no.1 being an Advocate, agreed to purchase the suit property because of the assurance given by the defendant no.1. Plaintiff, therefore, allowed the defendants along with their family to use the suit property for some period under his honest belief that the defendants will shortly vacate the suit property. Defendants no.1 and 2 although had no title or right whatsoever in the suit property.
4 It is alleged that despite repeated assurances given by the defendant no.1, he failed to vacate the suit property. It is alleged CS NO. 458/16/2006 Page 3/22 that the defendants desired was to grab the suit property. In April 2000 the plaintiff stated to have visited the suit property and requested defendant no.1 to vacate the same, however, at that time defendant no.1 again misrepresented the plaintiff and said that he had not found any suitable accommodation, therefore, expressed his reluctance in shifting to another locality.
It is alleged that the defendants were occupying the suit property without any right and title. When the defendants failed to vacate the suit property despite repeated requests, the plaintiff stated to have served a legal notice dated 19.07.2006 to defendant no.1.
However, despite receipt of the same, suit property was not vacated by the defendants. It is also mentioned in the plaint that the defendants were allowed to occupy the suit property only on humanitarian grounds whereas MCD also had substituted the name of the plaintiff in its record in respect of the suit property.
Hence, the suit was filed seeking decree of possession of the suit property i.e. property bearing no.86B, First Floor, Pocket W(P), Pitampura, Delhi. Plaintiff has further prays for decree for a sum of Rs.2,70,000/ (Rupees Two Lac Seventy Thousand only) against the defendants on account of mesne profits/damages and with interest @ 6% per annum. Plaintiff further prayed future CS NO. 458/16/2006 Page 4/22 damages @ Rs.7,500/ (Rupees Seven Thousand Five Hundred only) per month with interest.
5 Originally the suit was filed only against the defendant no.1, who filed the written statement taking objection therein that the suit is without cause of action, there being no dealing between the parties. Plaintiff has no locus to institute the present suit. It was pleaded that his wife is the owner and in possession of the suit property in her own independent right acquired on the basis of valid and legal title documents from the original allottee of the property and had paid the entire valuable consideration of the suit property to the original allottee on the basis of agreement signed between them. It is further pleaded that since the original allottee could not make arrangement for payment of money to DDA after allotment of the flat, therefore, wife of defendant no.1 paid all the deposits to DDA. In such circumstance, the original allotment letter, possession letter and other related documents were delivered to defendant no.1's wife. The case of the plaintiff has been denied.
6 Taking into account the specific plea taken by the CS NO. 458/16/2006 Page 5/22 defendant no.1 in his written statement that his wife is the owner of the suit property, therefore, an application under Order 1 Rule 10 CPC was moved on behalf of plaintiff to implead the wife of defendant no.1 as defendant no.2, the said application was allowed vide order dated 07.09.2007. Consequently, wife of defendant no.1 was impleaded as defendant no.2.
7 The defendant no.2 in her written statement also took similar defence as pleaded by defendant no.1 in his written statement. The case of the plaintiff was denied. It was specifically denied that the defendants are in unauthorized occupation of the suit property. The defendant no.2 claimed to be the owner of the suit property.
8 On the basis of pleadings as come on record, the following issues were framed on 15.09.2008:
1. Whether the plaintiff is entitled to a decree of possession as claimed in prayer clause (i) of the plaint? OPP
2. Whether the plaintiff is entitled to a decree of Rs.2,70,000/ being arrears of mesne profits/damages against the defendants? OPP CS NO. 458/16/2006 Page 6/22
3. Whether the plaintiff is entitled to recover interest @ 6% p.a. on the amount of Rs.2,70,000/? OPP
4. Whether the plaintiff is entitled to recover future damages for the use and occupation of suit property @ Rs.7,500/ per month against the defendant? OPP
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the defendant no.2 is the owner in her independent right and is in possession of the suit property? OPD
7. Relief.
9 On behalf of the plaintiff five witnesses were examined.
PW1 is plaintiff, Bhrahm Prakash Nagar. PW2 is Sh. Jugraj, UDC from the office of SubRegistrarVIA, Pitampura, Delhi.
PW3 is Sh. Anil Kumar, LDC from the office of SubRegistrar, Janak Puri, however, he was not examined completely. PW4 is Sh. Rakesh Ranjan, LDC from office of SubRegistrar, Kashmere Gate and PW5 is Sh. Om Prakash son of Late Sh. Ram Chander.
10 On behalf of the defendant, defendant no. 1 Subhash Chander had appeared in the witness box as DW1 and DW2 is Dinesh Chander, Assistant in the Office of DDA, Vikash Sadan.
CS NO. 458/16/2006 Page 7/2211 I have heard Ld. Counsels for the parties and has gone through the record carefully. My issue wise findings are as follow: 12 ISSUE NO. 5 (Whether the plaintiff has no locus standi to file the present suit? ) 13 This issue was framed on the objection taken on behalf of the defendant no. 1, to the effect that plaintiff has no locus to institute the present suit. However, considering the facts arising out of the pleadings and the evidence as come on the record, when plaintiff claims to be the owner of the suit property having purchased the same from one Ajit Kumar Gupta without commenting on the sustainability of such claim which of course will be considered after appreciating the evidence on the record, at least it can be stated that plaintiff has locus to institute the suit for the relief, therefore, issue stands decided against the defendant and in favour of the plaintiff.
14 ISSUE NO. 1(Whether the plaintiff is entitled to a decree of possession as claimed in prayer clause (i) of the plaint?) 15 Onus to prove this issue is on plaintiff as is clear from the above discussion of facts that plaintiff is claiming to be the absolute owner of the suit property having purchased the same from Sh. Ajit Kumar Gupta, by Sale Documents dt 03.01.2000. Before we discuss the evidence as come on the record, I feel appropriate to mention here that the well established legal CS NO. 458/16/2006 Page 8/22 proposition is for suit for possession where plaintiff claims to be the owner and alleges the defendant to be nuauthorized occupant, whereas defendant sets up a plea of being owner, in such situation, issue of ownership assumes importance. For seeking a relief of possession ownership may not be necessary to be proved in a landlordtenant relationship, where plaintiff is required to establish either being landlord or being lawfully entitled to seek possession. However, legal requirement becomes different in suit for possession where rival parties are making their respective claims of being owner. In such situation, it is important for plaintiff to establish his ownership, at least by preponderance of probabilities. Here it is also important to note that ownership of an immovable property or purchase of immovable property can be proved only in terms of section 54 of Transfer of Property read with Section 17 of Indian Registration Act, only by registered Sale Deed. In this regard, one may refer the judgment of Supreme Court in "Suraj Lamps and Industries Pvt. Ltd. vs. State of Haryana" AIR 2009 SC 3077, wherein it was held that sale of immovable property can be effected only by registered sale deed and documents like GPA, SPA, receipt, agreement to sell, Will etc. would not create any title to an immovable property. Supreme Court, however, also reiterated that rights created pursuant to section 53 (A) of TP Act or an irrevocable right of a person holding power of attorney given for consideration coupled with interest as per section 202 of Contract Act would have legal binding.
16 Thus, keeping above discussed legal proposition in my CS NO. 458/16/2006 Page 9/22 mind, let us now examine the evidence in present suit. PW1 is plaintiff Braham Naagar who in his affidavit of examination in chief has testified that he is the bona fide and absolute owner of suit property having purchased the same from erstwhile owner Ajit Kumar Gupta by registered document like GPA, Agreement to sell , receipt etc all dt 03.01.2000. Site plan of the suit property is Ex,PW1/1. PW1 testifies that suit property was allotted to Om Prakash, allottee took over the possession of property on 11.01.1991. The allotment letter in favour of Om Prakash is Ex.PW1/2. Cash receipts are Ex.PW1/3 to PW1/6. Letter dt 01.11.1990, having file no. 36(27)/90 / LIG/ NP are Ex.PW1/7 and PW1/9. PW1 says that Om Prakash sold the property to Surender Kumar on 23.09.1993 vide will , GAP, SPA, receipt, affidavit which are Ex.PW1/10 to PW1/15.
17 PW1 further says that said Surender Kumar then sold the property in question to Shashi Chawla on 24.05.96 by document like receipt, GPA, SPA and affidavit which are Ex.PW1/16 to PW1/20 respectively. PW1 further says that said Shashi Chawla then sold the property to Ajit Kumar Gupta against sale consideration on 08.11.99 vide documents like GPA, Will, Receipt, SPA and agreement to sell which are Ex.PW1/22 to PW1/26.
18 PW1 then testifies that thereafter he purchased the property from Ajit Kumar Gupta by sale document like GPA, Will, Receipt, Agreement to Sell all dt 03.01.2000 which are Ex.PW1/27 to PW1/30. PW1 says that prior to purchase of the suit property by him, defendants were already in unauthorized CS NO. 458/16/2006 Page 10/22 occupation of it. Ajit Kumar Gupta told him about it and told the plaintiff that defendants are in unauthorized occupation of the property since the time when he purchased the same from Smt. Shashi Chawla. PW1 stated to have been assured by AJit Kumar Gupta that defendant no. 1 is ready to vacate the premises within 45 months. Defendant no. 1 also assured him that he would vacate the suit property after getting suitable accommodation. PW1 says that he on considering the fact that defendant no. 1 is Advocate and has given the assurance; therefore, he purchased the property and allowed the defendant to occupy the property for some period. PW1 says that thereafter, he kept on visiting to defendant; however, defendant did not vacate the property. PW1 also testified that MCD after verifying the documents, entered the name of him in its record for the purpose of property tax, tax receipts are ExPW1/31 & PW1/32. PW1 therefore, testifies regarding service of legal notice dt 19.07.06 upon defendant no. 1which is Ex.PW1/33 and Postal receipts are Ex.PW1/34 & PW1/35. PW1 says that defendant no. 2 is wife of defendant no. 1 and has been in unauthorized occupation of suit property without any legal basis. PW1 further says that market rent of suit property is 7500/. He has relied upon one letter dt 08.12.2006 of one property dealer which is Ex.PW1/36.
19 PW1 was duly cross examined. Relevant portion of his cross examination will be discussed later in the judgment. PW1 is Sh. Jugraj, Clerk from office of SubRegistrar, Pitampura, Delhi, who has testified regarding relevant record summoned CS NO. 458/16/2006 Page 11/22 pertaining to different documents registered like peshi register as well as registered GPA in favour of plaintiff which is Ex.PW2/3. PW3 is Anil Kumar LDC from SubRegistrar, Janak Puri but his evidence is not completely recorded, therefore, cannot be taken into consideration. PW4 is Rakesh Ranjan who brought the record regarding registered wills dt 23.08.2005 executed by original allottee Sh. Om Prakash in favour of Surender Kumar which is Ex.PW4/1.
20 PW5 is original allottee of the suit property namely Om Prakash. PW1 says that property in question was allotted to him, original receipt dt 21.11.90, 31.10.90 issued by DDA in his favour and receipt dt 22.06.90 are Ex.PW5/1 and PW5/2 and PW5/3 respectively. PW5 also proves the allotment letter dt 01.11.90 as Ex.PW5/5. PW5 says that he sold the property to Surender Kumar vide agreement to sell , GPA, SPA , Receipt all dt 23.08.93 Ex.PW5/6 to PW5/9. PW5 says that he also executed a Will and affidavit dt 23.08.93 in favour of Surender Kumar which is Ex.PW5/10. PW5 says that possession letter issued by DDA in his favour is ExPW1/12.
21 Having considered such evidence led on behalf of the plaintiff, first and foremost question arises for consideration as to whether the documents as proved in the evidence of PW1, PW2, PW4 and PW5, establish any title in favour of plaintiff in respect of property in question. Admittedly, the property in question was allotted to PW5 Om Prakash s/o late Ram Chander. From the documents of allotment i.e. receipts Ex.PW5/1 and deposit CS NO. 458/16/2006 Page 12/22 receipts Ex.PW5/2 and PW5/3 as well as letter of allotment and receipt Ex.PW5/4 & PW5/5, clearly establish that suit property was allotted by DDA to Sh. Om Prakash on hirepurchase agreement basis. It is also clear from document Ex.PW5/4 that different hire installments were mentioned, required to be paid. It was also mentioned in that document that till the payment of those hire installments, the status of allottee shall be that of 'tenant'. It is also stipulated in that document that in addition to payment of hire installments, allottee was also required to make the payment of ground rent as prescribed in that document itself. It is established proposition of law that once a property allotted on hirepurchase basis, until entire payment of hire installments are not made, ownership of that property does not transfer. In this case, it is not clear whether entire hire installments were paid or not. PW5 as well as PW1 has relied upon only two receipts of Rs.22420/ dt 22.06.1990, and another receipt of Rs. 1500 dt 31.10.1990. Whereas, as per document Ex.PW5/4, six hire installments were to be paid. It is not proved in the entire evidence led on behalf of plaintiff that all the hire installments were duly paid. In the absence of such evidence, it is not clear whether allottee Om Prakash s/o late Ram Chander has got any legal right to sell that property to anyone.
22 Let us now further consider the evidence. As per PW1 Om Prakash sold the property to Surender Kumar on 23.08.93, vide documents like will, GPA, SPA, receipt affidavit all dt 23.08.1993 which are Ex.PW1/10 to PW1/15. Similarly, PW5 Om Prakash has also referred to the same document in his evidence when he CS NO. 458/16/2006 Page 13/22 has testified that he sold the property to Surender Kumar, through documents like agreement to sell ExPW5/6, GPA, SPA , receipt and will and affidavit all dt 23.08.93 which are Ex.PW5/6 to PW5/11. If we go through these documents, none of these documents are registered. These documents are apparently shown to be notarized but even these documents are not lawfully notarized by Notary Public even as none of the documents bear the certificate of Notary Public as is required under section 8 of Notary Act, thereby renders these documents to be suspicious (regarding the requirement of Notary Act reference can be given of Judgment in Pratima Chaudhary vs. Kalpana Mukherjee and ors. AIR 2014, SC 1304) . On thing is very much clear from these documents that none of these documents have an affect of transfer of title in the suit property as per law. These documents cannot be considered to be valid sale documents in the light of ratio laid down by Apex Court in Suraj Lamp and Ind. Pvt.
Ltd. case (SUPRA). GPA and SPA dt 23.08.93, are also not attorney for consideration. Thus, these documents do not have benefit of section 202 of Contract Act. The agreement to sell is written on a stamp paper of Rs.2/ nor agreement to sell refer handing over of possession in part performance. Thus, by any stretch of imagination , such documents do not convey any legal right or title in the property from allottee Om Prakash to Surender Kumar.
23 Once the title from Om Prakash to Surender Kumar not proved to have been lawfully transferred, said Surender Kumar had no right in law to transfer the property to Smt. Shashi CS NO. 458/16/2006 Page 14/22 Chawla. Therefore, alleged sale documents from Surender Kumar to Shashi Chawla dt 214.06.96 which are Ex.PW1/16 to PW1/20 have no legal import or effect. Once it is established that Surender Kumar was not lawful owner of the property, he could not have transferred a better title then he himself had. By virtue of these sale documents dt 24.05.96, which otherwise have similar defects as were in the sale documents purported to have been executed in favour of Surender Kumar, as even these documents are also neither registered nor properly notarized. Thus, Shashi Chawla also had no right in the property in question. On same analogy, it can specifically be stated that once Shashi Chawla could not be proved to be a lawful owner, she had no right under the law to execute any sale documents in favour of Ajit Kumar Gupta. Therefore, by sale documents dt 08.01.99, executed by Smt. Shashi Chawla in favour of Ajit Kumar Gupta, Ex.PW1/22 to PW1/26, no right or title in the property stood transferred to Ajit Kumar Gupta. Similarly, when Ajit Kumar Gupta had not got any right or title in the property, plaintiff also could not get any right or title in the property by virtue of sale documents Ex.PW1/27 to PW1/30. No doubt , in these sale documents in favour of Shsahi Chawla, Ajit Kumar Gupta, and plaintiff V.P. Naagar, GPA was registered but this fact by itself does not create any right either in the favour of Ajit Kumar Gupta or in favour of plaintiff because when no right stood transferred from allottee Om Prakash to Surender Kumar, then by legal consequence there was no flow of lawful right to succeeding people like Shashi Chawla, Ajit Kumar Gupta or plaintiff. Thus, from the above discussion one thing which can safely be concluded here that the CS NO. 458/16/2006 Page 15/22 ownership in favour of plaintiff has not been proved at all.
24 In this regard, let us now further consider the evidence of PW1 Braham Naagar. Plaintiff in his plaint as well as in affidavit of evidence has testified that when he was purchasing the property in question from Ajit Kumar Gupta, property was already in unauthorized occupation of defendants. PW1, in his cross examination has admitted that at the time of execution of the sale documents in his favour, possession of the suit property was not delivered to him. Whereas, the sale documents in his favour as relied upon by him do not mention that possession of the property was not delivered to him. These documents rather mention that possession has been delivered to the plaintiff. Evidently documents of sale of plaintiff are rather contradicting the case of the plaintiff. Here it is also important to note that plaintiff in his evidence has further stated that defendants were in an authorized occupation of the suit property since the time when it was purchased by Shashi Chawla. But, this fact also does not find mentioned even in the sale documents in favour of Smt.Shashi Chawla clearly creating doubt about the plaintiff's case.
25 Ld. Counsel for the plaintiff has argued that even if plaintiff may not be having a registered sale deed in respect of property in question, but documents of sale as relied upon by the plaintiff along with the chain of documents of predecessor of interest the property at least established that plaintiff has good documentary evidence establishing ownership / right in the CS NO. 458/16/2006 Page 16/22 property. Counsel for the plaintiff in this regard has relied upon the judgment of Hon'ble High Court of Delhi in Bidhan Chand Biswas through LR's vs. Prakash Chand Bansal RSA 131/14 decided on 20.06.2014.
26 Having considered the submissions made by the counsel for the plaintiff, it be noted that plaintiff is relying upon a GPA, agreement to sell, etc. as sale documents in support of his claim of being owner. Whereas, such documents cannot be considered to be documents of ownership by any provisions of law. In Asha M. Jain vs. Canara Bank 94 (2001) DLT 841 earlier High Court of Delhi had held that such documents (GPA, agreement to sell etc.) do create an interest in immovable property. However, Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana AIR 2009 SC 3077 has held that such judgment in Asha M. Jain (Supra) was not good law and that such kind of document i.e. GPA, SPA, Receipt etc. would not create any title to immovable property.
27 Considering the judgment of Supreme Court in Suraj Lamp and Industries Pvt. Ltd. (Supra), Hon'ble High Court of Delhi in Ramesh Chand vs. Suresh Chand 188 (2012) DLT 238 has observed as under: ".......unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however, reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the CS NO. 458/16/2006 Page 17/22 doctrine of part performance (pare 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of Transfer of Property Act, 1882, devolution of interest after the death of the testator in terms of a Will. "
28 Thus, it is clear from the above discussion that for establishing any right or title in an immovable property, the best of the evidence which is required is registered sale deed. In the absence of any registered sale deed, one cannot establish the ownership rights in an immovable property. Having so stated, still by virtue of Section 53 A of Transfer of Property Act, if there is an agreement to sell along with handing over of possession in part performance, this creates some right in favour of proposed buyer. Similarly, in case of execution of GPA for valid consideration, it create an irrevocable interest in the property by virtue of Section 202 of Contract Act.
29 But, if we examine the present case, these two rights either under Section 53 A of Transfer of Property or under Section 202 of Contract Act have also not been created in respect of property in question, if we go through the documents of sale in favour of the plaintiff, agreement to sell does not mention that possession CS NO. 458/16/2006 Page 18/22 has been handed over in part performance of the agreement. GPA/ SPA is not for valid sale consideration as none of those documents mention anything about sale consideration. Those documents are simple attorneys without consideration. Thus, these documents do not create even any right in the property in question.
30 So far as judgment in Bidhan Chand Biswas's Case (Supra) as relied upon by the counsel for the plaintiff, no doubt, it is mentioned in that in the absence of any registered sale deed, plaintiff though may not be a classical owner of the suit property but by virtue of documents like agreement to sell, attorney etc. he would still be having better right/ entitlement of possession of suit property then defendant. If we go through that judgment, facts of that case were altogether different and therefore, the observation given in that case cannot be made universally applicable to the facts of each case. In that case, relief of declaration of being owner was being sought which was declined by trial court. Whereas, in a case for possession, plaintiff is required to prove his ownership. Reference in this regard can be given in Judgment of Supreme Court in "Brahama Nand Prui vs. Nelci Puri" AIR 1965 SC 1506 wherein it was held that in a suit for possession, plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that defendant in possession has not title to the property. Therefore, in a suit for possession when plaintiff has failed to establish his ownership in the property, and suit being not landlordtenant relationship, I find CS NO. 458/16/2006 Page 19/22 that plaintiff is not entitled for the relief of possession as prayed for. Issue accordingly, decided against the plaintiff.
31 ISSUE NO. 6(Whether the defendant no.2 is the owner in her independent right and is in possession of the suit property?) 32 Onus to prove this issue was on defendant as defendant no. 1 has taken a specific plea in the WS that his wife is the owner in possession in the suit property, in her independent right acquired on the basis of legal title documents from the original allottee of the property. To substantiate this issue, defendant no. 1 has appeared in the witness box. DW1 Subhash Chauhan though has admitted that Om Prakash s/o Ram Chander is the original allottee. However, DW1 says that possession of the said plot was handed over to him by possession letter dt 11.01.91 which is already exhibit as Ex.PW5/12. DW1 further says that as per oral agreement between the allottee Om Prakash and his wife Smt. Nirmala for sale of suit property, possession of the property was delivered by Om Prakash to her on 12.01.91 by a letter of delivery of possession. Since then, defendants with their family members are residing in the suit property without any intervention from anyone. Said letter of delivery of possession is Ex.DW1/1. Witness has further testified that he and his wife has paid all the settled amount to Om Prakash except Rs.5000/. DW1 says since property in question was allotted on hirepurchase basis, therefore, as per rules of DDA, unless the dues of DDA are cleared by original allottees, title documents could not be executed in favour of defendant no. 2. therefore, such oral CS NO. 458/16/2006 Page 20/22 agreement was arrived at.
33 If we examined the evidence of DW1, it be noted that there cannot be any oral agreement regarding sale of any immovable property. Only the documents relied upon by DW1 in support of claim of ownership of defendant no. 2 is letter of delivery of possession Ex.DW1/1. Such document by any stretch of imagination cannot be considered to be a lawful document of title. Thus, from the testimony of DW1, one can easily conclude that DW1 has failed to establish ownership of his wife in respect of suit property. DW1 in his crossexamination has also admitted that original document regarding allotment of property are neither in possession nor with his wife. Similarly, possession letter issued on DDA does not indicate that possession was handed over to wife of DW1. DW1 has admitted that there is no registered document regarding suit property in favour of his wife. Thus, from the above discussion, it is very much established on the record that DW1 has neither been able to prove the ownership of his wife (Defendant no.2) nor DW1 has been able to establish is possession over the suit property. Consequently, issue no. 6 stands decided against the defendant.
34 ISSUE NO. 2 & 3(Whether the plaintiff is entitled to a decree of Rs.2,70,000/ being arrears of mesne profits/damages against the defendants?) & (Whether the plaintiff is entitled to recover interest @ 6% p.a. on the amount of Rs.2,70,000/?) 35 In view of my findings on Issue No. 1, once it is already held CS NO. 458/16/2006 Page 21/22 that plaintiff is not entitled for decree of possession, by necessary consequence, it can be concluded that plaintiff is also not entitled for arrear of mesne profit of Rs.2,70,000/ as claimed nor plaintiff is entitled for any interest. Accordingly, issue no. 2 & 3 are also decided against plaintiff.
36 ISSUE NO. 4(Whether the plaintiff is entitled to recover future damages for the use and occupation of suit property @ Rs.7,500/ per month against the defendant? ) 37 In view of my findings on Issue No. 1, 2, 3, issue no. 4 also stands decided against plaintiff.
RELIEF In view of my findings on Issue No. 1 to 4, suit of the plaintiff stands dismissed. However, it is also being made clear that in view of my findings on Issue No. 6 defendant is also failed to establish his ownership / possession in the suit property. Decree sheet of dismissal be prepared. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 17.01.2017 (SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI CS NO. 458/16/2006 Page 22/22