Delhi District Court
Vide This Judgment vs Regency Convention Centre And Hotels on 1 July, 2021
Fazluddin & Ors. v. Daya Prakash & Ors.
IN THE COURT OF HELLY FUR KAUR: CIVIL JUDGE08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO. : 95918/16 (OLD NO. : 564/16)
CNR NO.DLCT030001542002
In the matter of :
1. Fazluddin
2. Farmuddin
3. Mohd. Iqbal
4. Mohd. Sadique
5. Mohd. Usman
6. Suleman
All sons of Late Allahnoor
7. Firdaus
8. Phool Jahan
9. Ms. Nazma
All D/o Late Allahnoor.
10. Mst. Sharifan
W/o Late Allahnoor.
All R/o RZ - 35, Khushiram Park,
Om Vihar, Uttam Nagar, New Delhi.
VERSUS
Digitally
signed by
Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR
KAUR Pg 1 of 52
FUR Date:
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1. Daya Prakash (Now deceased through his LRs)
(i) Bimla Gupta
W/o Late Daya Prakash
(ii) Raj Kumar Gupta
S/o Late Daya Prakash
(iii) Murli Gupta
S/o Late Daya Prakash
(iv) Sunil Kumar Gupta
S/o Late Daya Prakash
(v) Gopal Gupta
S/o Late Daya Prakash
(vi) Satnarain Gupta
S/o Late Daya Prakash
(vii) Anil Gupta
S/o Late Daya Prakash
2. Hari Om
S/o Late Ram Chander
3. Ved Wati
D/o Late Ram Chander
W/o Sh. Bhagwan Dass
All R/o WZ93, Main Najafgarh Road,
Tatarpur, Tagore Garden, New Delhi
& 114, Block No.7,
Trilokpuri, Delhi.
4. Ganga Devi
Wd/o Late Ram Chander
Digitally
Suit No. : 95918/16 (old No. : 564/16) HELLY signed by
HELLY FUR Pg 2 of 52
KAUR
FUR Date:
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R/o WZ - 93, Main Najafgarh Road,
Tatarpur, Tagore Garden,
New Delhi
& 114, Block No.7,
Trilokpuri, Delhi.
5. Subhas Chander Gupta
6. Chander Bose Gupta
Both S/o Late Jagdish Chander Gupta
7. Suman Gupta
D/o Late Jagdish Chander Gupta
8. Mrs. Jagdish Chander Gupta
Wd/o Late Jagdish Chander Gupta,
All R/o WZ - 93, Main Najafgarh Road,
Tatarpur, Tagore Garden,
New Delhi.
9. Rukmani Gupta
D/o Siya Ram Gupta
W/o Kishan Gupta
R/o Plam Gaon, Shadh Nagar,
Delhi.
10. Shyama Gupta
D/o Siya Ram Gupta
W/o Sanjay Gupta
11. Hem Lata
D/o Siya Ram Gupta
W/o Ranbir Gupta
R/o B514, Jahangir Puri.
Delhi - 110 033. ...DEFENDANTS
Digitally
signed by
Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY
FUR KAUR
Pg 3 of 52
FUR Date:
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Fazluddin & Ors. v. Daya Prakash & Ors.
Date of institution : 03.08.2002
Date of judgment : 01.07.2021
SUIT FOR DECLARATION AND PERPETUAL INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration and perpetual injunction.
BRIEF FACTS OF THE PAINT:
2. The brief facts of the case as alleged in the plaint which are necessary for the disposal of the suit are that a property being house No.WZ93, Titarpur, Main Najafgarh Road, Tagore Garden, New Delhi, built on a plot of 1008 sq. yards was initially owned by one Smt. Jai Devi who died leaving behind her three sons, namely, Sh. Jagdish Chander Gupta, Sh. Ram Chander Gupta and Sh. Siyaram Gupta. Her husband Sh. Dori Lal Gupta had predeceased her. That Sh. Ram Chander Gupta died leaving behind defendants No.1 to 4 as his legal heirs and Sh. Jagidsh Chander Gupta died leaving behind defendants No.5 to 8 as his legal heirs and Sh. Siya Ram Gupta died leaving behind the defendant No.9 to 11 as his LRs. Sh. Siya Ram Gupta died prior to the death of his wife Smt. Urmila Devi who Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 4 of 52 FUR Date:
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has also expired. That Sh. Allanoor during his lifetime purchased a shop bearing No.WZ93/3, Tatarpur, Main Najafgarh Road, Tagore Garden, New Delhi from Smt. Urmila Devi as the said shop was in the share of Sh. Siya Ram Gupta and after he expired, expiry Smt. Urmila Devi for herself and for and on behalf of her minor daughter Ms. Hemlata as her natural guardian and defendants No.9 and10 executed agreement to sell after receiving full and final consideration of Rs.50,000/ from Sh. Allanoor on 12.02.1993 and G.P.A. and affidavit and receipt in favour of deceased Sh. Allanoor were also executed. Smt. Urmila Devi further executed and registered a Will dated 15.02.1993 and the said Will was registered on the same date. After execution of the aforesaid documents Smt. Urmila Devi who was receiving the said rent of the said shop being Rs.150/ per month stopped rent as there was no question of payment of rent because landlord and tenant relationship between Sh. Allanoor and Smt. Urmila Devi came to an end and Sh. Allanoor started enjoying the possession of the said shop as owner. That Smt. Urmila Devi expired on 06.05.1993 and Sh. Allanoor expired on 17.07.1994. The plaintiffs are the legal heirs of Allanoor and defendants No.9 to 11 are the legal heirs of Smt. Urmila Devi. Defendants No.1 to 8 have no right, interest in the suit property i.e. WZ93/3, Tatarpur, Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 5 of 52 KAUR FUR Date:
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Main Najafgarh Road, Tagore Garden, New Delhi - 110 025. That the plaintiffs received a notice dated 06.07.2002 for and on behalf of defendants No.1 and 3 questioning the rights, title and interest of the plaintiff in the suit property. That the said notice dated 06.07.2002 was duly replied by the plaintiffs vide their reply dated 01.08.2002 but the denial of title and right by the defendants No.1 to 3 is still there for no just and legal reasons. It is pertinent to mention that the family of Smt. Jai Devi i.e. the defendants settled among themselves by mutual family settlement, that the portion in which the suit property situated is the share of Sh. Siya Ram Gupta i.e. the husband of the late Smt. Urmila Devi. Defendants No.4 to 11 are the necessary and property party but they are not questioning and they have never questioned the title and the interest of the plaintiffs in suit property. The defendants No.1 to 3 has threatened in the second week of July, 2002 that they will dispossess the plaintiffs from the suit property forcibly and they will create third party interest in the suit property and the said threat is subsisting. That Sh. Allanoor has paid the entire consideration and the plaintiffs are in possession being the legal heirs of Sh. Allanoor and nothing is due and payable to Smt. Urmila Devi or her daughters and as such the rights of the plaintiffs and possession in respect of the suit Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY Pg 6 of 52 FUR KAUR FUR Date:
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property is also protected under Section 53A of the Transfer of Property Act. That Sh. Allanoor had performed his part of contract and nothing was to be performed by said Sh. Allanoor and as such Sh. Allanoor was entitled to be declared as the owner of the said property but cause of action for such declaration never arose during his lifetime and the same arose in favour of the plaintiffs pursuant to the notice dated 06.07.2002 sent by Sh. G. Alimadni, Advocate. That a false and frivolous petition has been filed by a third person who is claiming his rights on forged documents and the same is being contested. The present defendants are not parties in the said petition before Ld. ARC, Delhi. Hence, it is prayed that a decree of declaration be passed in favour of the plaintiffs and against the defendants thereby declaring the plaintiffs as owners of the suit property bearing No.WZ93/3, Main Najafgarh Road, Tatarpur, Tagore Garden, New Delhi - 110 027. And a decree of perpetual injunction be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, relatives, attorneys, servants, employees or anybody claiming under them from dispossessing the plaintiffs as well as creating any third party interest in the suit property.
Digitally
signed by
HELLY HELLY
FUR KAUR
FUR Date:
Suit No. : 95918/16 (old No. : 564/16) KAUR 2021.07.01
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WRITTEN STATEMENT OF DEFENDANTS NO.1, 2 & 3
3. On the other hand, defendants filed their written statement controverting the stand of the plaint while contending that the present suit filed by the plaintiff is not maintainable in its present form as the same has been filed as a counter blast of the legal notice issued on behalf of defendants No.1 to 4 duly served upon the plaintiffs before filing the present suit. That the present suit is not maintainable as same does not bear my cause of action for filing the present suit in favour of plaintiffs and against the defendants No.1 to 4. That the present suit is barred under Order 2 Rule 2 of CPC as the defendants No.1 to 4 has already filed a suit for declaration, cancellation of documents, mandatory and permanent injunction in which the present plaintiffs have already been cited and impleaded as defendants No.1 to 10. The suit filed by the defendants No.1 to 4 against the present plaintiffs is already pending before this Hon'ble Court and the same is fixed for hearing on 20.01.2003. The present plaintiffs have knowledge of the pendency of the suit though they are avoiding the services of the summons of this Hon'ble Court. That the present suit filed by the plaintiffs is also not maintainable and the same is liable to be stayed under Section 10 of Civil Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Pg 8 of 52 Date:
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Procedure Code as the defendants No.1 to 4 herein have already prayed for cancellation of the documents upon which the plaintiffs being relied the same have filed the present suit. The present plaintiffs had ample opportunity and option to get their defence produced in the case which has been filed by the defendants No.1 to 4 against the present plaintiffs and which is pending before this Hon'ble court. That the present suit filed by the plaintiffs is also not maintainable as the suit filed by the plaintiffs is completely time barred so far as their prayer and remedy sought by them is concerned and so far as the subject matter of suit is concerned. It is submitted that the plaintiffs have alleged to have purchased the property in question by their father late Allahnoor allegedly on 12.02.1993 while the present suit has been filed by the plaintiffs allegedly on 02.08.2002 relying upon the documents of late Allahnoor allegedly dated 12.03.1993. That the present suit filed by the plaintiffs is also not maintainable as the person against whom the plaintiffs are already under the litigation who allegedly claiming himself to be the owner of the property in question has not been made party in the present suit and as such the suit of the plaintiffs is liable to be dismissed under Order 1 Rule 9 of CPC for nonjoinder of the parties.
4. In reply on merits, it is contended that the para No.1 of the plaint is however Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 9 of 52 KAUR FUR Date:
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is not disputed so far as the ownership of the property No.WZ93, Main Najafgarh Road, Tatarpur, Tagore Garden is concerned. Rest of the para is itself explanatory on its face hence, specifically denied so far as the living sons of late Smt. Jai Devi (real grandmother of defendant No.1) is concerned. It is submitted that one uncle of the defendant No.1 namely, Sh. Siya Ram Gupta had unfortunately expired even before the death of Smt. Jai Devi. That para No.2 of the plaint is however not disputed so far as the relationship between each other and amongst the defendants are concerned. That the para No.3 of the plaint is absolutely wrong, false and concocted. Hence, specifically and categorically denied. It is specifically denied that Sh. Allahnoor during his lifetime purchased the shop bearing No.WZ93/3, Main Najafgarh Road, Tatarpur, Tagore Garden, New Delhi from Smt. Urmila Devi as the said shop was in the share of Sh. Siya Ram Gupta. It is also specifically denied that after his expiry for herself and for and on behalf of her minor daughter Ms. Hem Lata as her natural guardian and defendants No.9 and 10 executed agreement to sale after receiving full and final consideration of Rs.50,000/ from Sh. Allahnoor on 12.02.1993 and G.P.A., affidavit and receipt in favour of the deceased Allahnoor were also executed. It is also specifically denied that Smt. Urmila Devi further Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 10 of 52 KAUR FUR Date:
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executed and registered a Will dated 15.02.1993 and the said Will was registered on the same date. It is submitted that neither Sh. Siya Ram Gupta nor Smt. Urmila Devi nor any other person had any right, title or interest to get any portion of the property in question disposed of in favour of any one except Smt. Jai Devi is the owner of the property. It is further submitted that late Jai Devi during her lifetime also had authorized Sh. Siya Ram Gupta, Sh. Ram Chander Gupta and Sh. Jagdish Chand Gupta, all three sons to deal with the specified portions for collection of rent inducting of tenants and to use and utilize their specified portion. Late Jai Devi neither had given any power, right, title or interest to the sons nor any other person in regard to the disposal of the property, transferring of the property etc. All the three sons of Smt. Jai Devi under the supervision of their other have been dealing with the specified portion of the property during the lifetime of Smt. Jai Devi under her consent. It is further submitted that late Jai Devi unfortunately expired on 26.02.1989 leaving behind her two alive sons namely, Ram Chander Gupta (father of defendants No.1 to 3) and Sh. Jagdish Chand Gupta (father of defendant No.5 to 7). The father of defendants No.1 to 3 as well as father of defendants No.5 to 7 had been dealing with their specified portion during the lifetime of late Jai Devi. It is Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY Pg 11 of 52 FUR KAUR FUR Date:
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further submitted that late Allahnoor had been the tenant in a shop situated at the ground floor of owner Smt. Jai Devi and the rent was being collected either by late father of defendants No.1 to 3 or by the late father of defendants No.9 to 11 but as a matter of fact the ownership of the property ever remained with Smt. Jai Devi. It is further submitted that the father of defendants No.9 to 11 unfortunately expired during the lifetime of late Smt. Jai Devi and the specified portion indicated to Sh. Siya Ram Gupta and its administration came into the hands of Smt. Urmila Devi (late mother of defendants No.9 to 11) and defendants No.9, 10 and 11 and Smt. Urmila Devi neither became the owner of any kind so far as the property is concerned nor had any right, title or interest to get the specified portion disposed of in any manner in favour of anybody in any condition whatsoever except the administration of specified portion of late Siya Ram Gupta or to manage the same. It is further submitted that status of late father of plaintiffs No.1 to 9 was that of the tenant and the same cannot be changed in any manner until and unless all the legal heirs of late Jai Devi entered into a valid and legal contract. That the para No.4 of the plaint is absolutely wrong, false and concocted and incorrect as stated hence, specifically and categorically denied. It is specifically denied that after the Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY Pg 12 of 52 FUR KAUR FUR Date:
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execution of aforesaid documents Smt. Urmila Devi who was receiving rent of the shop being Rs.150/ per month stopped rent as there was no question of payment of rent because landlord and tenant relationship between Sh. Allahnoor and Smt. Urmila Devi came to an end and Sh. Allahnoor started enjoying the possession of said shop as owner. It is submitted that neither Sh. Siya Ram Gupta nor Smt. Urmila Devi nor defendants No.9 to 11 nor anybody else except Smt. Jai Devi had any right, title or interest to dispose of the property in question in any manner whatsoever either in favour of late Allahnoor or anybody else. It is further submitted that since Smt. Urmila Devi or her late husband Siya Ram Gupta had no right in the property as an owner, the transaction, if any, made by Smt. Urmila Devi or defendants No.9 to 11 shall have no right, title or interest. It is further submitted that a void transaction cannot confirm any right upon any person and as such the status of father of plaintiffs No.1 to 9 could not be changed in any manner whatsoever. That the para No.5 of the plaintiff is not disputed up to the extent of the death of Smt. Urmila Devi, Sh. Allahnoor and relation of defendants No.9 to 11 with Smt. Urmial Devi, however, it is specifically and vehemently denied that defendants No.1 to 8 have no right, interest in the suit property i.e. WZ93/3, Tatarpur, main Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 13 of 52 KAUR FUR Date:
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Najafgarh Road, New Delhi. It is submitted that the defendants No.1 to 8 being the legal heirs of Smt. Jai Devi, the owner have got the interest over the property left by Smt. Jai Devi, the owner. It is further submitted that the defendant No.1 on 15.04.2002 has come across with some old documents which were lying in the house and during the search of old documents one slip of Registrar Court came in the hands of the defendant No.1. The defendant No.1 in order to search the credibility of the found slip, enquired the matter from the registrar court K. Gate and the defendant No.1 came to know that the found slip of the Registrar Court is pertaining to a registered document which is a registered Will duly executed by Smt. Jai Devi on 03.09.1973 in favour of her son, namely, Sh. Ram Chander (father of defendants No.1 & 2). Late Jai Devi by virtue of above mentioned registered Will duly registered as document No.635, volume No.53, Page No.136 to 137 registered on 06.09.1973. Smt. Jai Devi by virtue of above mentioned Will had bequeathed 250 sq. yards in favour of the father of the defendants No.1 & 2 in which five rooms all used as shop under the tenancy of Kuldeep, Mohan Singh, two shops of Desh Pal, and one shop of Allahnoor were included. It is further submitted that after the death of Sh. Ram Chander Gupta, the beneficiary of the Will as well as after the death of Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY Pg 14 of 52 FUR KAUR FUR Date:
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Late Jai Devi the executant of the Will, the defendants No.1 to 4 became the owners of the property in question. That the para No.6 of the plaint is a matter of record. However, it is submitted that since the defendants No.1 to 4 by operation of law have become the owners of the property in question for every aspects whatsoever and as soon as the defendant No.1 gained the knowledge about the ownership by virtue of the registered Will from the actual owner in favour of late father, the defendants No.1 to 3 got served a legal notice rightly questioning the title of the plaintiffs No.1 to 10 as well as the title of the father of plaintiffs No.1 to 9 also the title of one Sangat Singh Ghai and also questioned the void transaction taken place between Smt. Urmila Devi, defendants No.9 to 11 with late Sh. Allahnoor and Sangat Singh Ghai. It is further submitted that defendants No.1 to 4 has already filed a suit for declaration, cancellation of documents, mandatory and permanent injunction which is pending adjudication before this Hon'ble Court itself and the date of hearing is fixed as 20.01.2003. The plaintiffs No.1 to 9 and 10 have been avoiding the service of the summons of the suit though have every knowledge about the pendency of the suit filed by the defendants No.1 to 4 against the plaintiffs No.1 to 10. That the para No.7 of the plaint is however, no disputed so far as the reply of the notice of Suit No. : 95918/16 (old No. : 564/16) Digitally signed by Pg 15 of 52 HELLY HELLY FUR KAUR FUR Date:
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defendants No.1 to 3 are concerned, however, it is specifically denied that denial of the title and right by defendants No.1 to 3 is for no just and legal reasons. It is submitted that the defendants No.1 to 3 have rightly questioned the title of the plaintiffs, deceased Allahnoor, Sangat Singh Ghai, defendants No.9 to 11 and also rightly questioned the void transaction on the basis of which the plaintiffs are claiming their nonexisted title. That the para No.8 of the plaint is wrong as stated and based upon misrepresentation of the facts as well as the law, hence, specifically and categorically denied. It is specifically denied that the family of Smt. Jai Devi the defendants among themselves by mutual settlement that the portion in which the suit property is situated is the share of Sh. Siya Ram Gupta. It is also specifically denied that defendants No.4 to 11 are not questioning and they have never questioned the title and interest of the property. It is submitted that no partition ever took place either during the lifetime of Smt. Jai Devi the owner or after her death and as such neither the share of a particular person can be specified as owner nor any specified portion can be deemed to have been coming in ownership of particular person. It is also further submitted that the plaintiffs have also come to know that out of defendants No.9 to 11, one sister has already filed a suit questioning the Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 16 of 52 FUR Date:
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transaction of late Smt. Urmila Devi. Para No.10 of the plaint is categorically denied and it is submitted that defendants No.1 to 4 at the alleged date had already adopted the due process of law and no question arises to spread over the threat of any kind. The contents of para 14 are specifically denied and it is submitted that the plaintiffs are required to affix the advelorum court fee upon the subject matter of the suit as they have admitted the consideration of Rs.50,000/ for the shop of which the declaration of ownership is being sought by them. Hence, it is prayed that the suit of the plaintiff may kindly be dismissed with costs. REPLICATION:
5. Plaintiff filed replication to the written statement of the defendants No.1 to 3 denying the case of the defendants; reiterating and reaffirming the case as set up by the plaintiffs in the plaint. Besides, it is submitted that the objection under paragraph 6 of written statement has been taken in collusion with one Sh. Sangat Singh who is also claiming rights on the basis of the forged documents and he has filed a suit under the title Sh. Sangat Singh v. Jhumman Singh and Ors. and the same is pending in the court of Sh. Anil Kumar Sisodia, Ld. Civil Judge or his successor Digitally signed by HELLY HELLY FUR KAUR Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 17 of 52 KAUR 2021.07.01 16:42:36 +0530 Fazluddin & Ors. v. Daya Prakash & Ors.
court.
ISSUES:
6. From the pleadings of the parties, following issues were framed for trial vide order dated 08.04.2004:
1. Whether the plaintiff is entitled for a decree of declaration as prayed?
OPP.
2. Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP.
3. Whether the suit is not maintainable in its present form? OPD.
4. Whether the suit is barred by provisions of Order 2 Rule 2 as prayed? OPD.
5. Whether the suit is liable to be stayed under Section 10 of CPC?
OPD.
6. Whether the suit is barred by limitation as claimed? OPD.
7. Whether the suit is bad for non joinder of parties as claimed? OPD.
8. Relief.
Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 18 of 52 FUR Date:
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PLAINTIFF'S EVIDENCE:
7. In order to prove their case, plaintiff's examined following witnesses:
1. PW1 is Mohd. Sadique, son of Late Allahnoor whose examination in chief is by way of affidavit Ex.P1. While tendering the affidavit of evidence, it was deposed that documents be read over as per the affidavit. However, he also relied on power to attorney in his favour executed by plaintiffs No.1 to 3 and 5 to 10, photocopy of which was exhibited as Ex.PW1/A in his affidavit. Same was deexhibited being photocopy and was marked as MarkA (objected to the mode of proof).
On perusal of record, it transpires that PW1 has relied upon eight documents including affidavit, namely, Ex.PW1/B General Power of attorney, Ex.PW1/C agreement to sell, Ex.PW1/D (though mentioned in affidavit, but there is no document on record with Ex.PW1/D), Ex.PW1/E1 Affidavit, Ex.PW1/E2 Affidavit (Shapath Patra), Ex.PW1/F deed of Will, Ex.PW1/G Receipt and Ex.PW1/I legal notice.
2. PW2 Sh. Vivek Yadav is a summoned witness, LDC from the office of Sub RegistrarII, Basai Darapur, Delhi. He had brought the summoned Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Pg 19 of 52 Date:
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record i.e. deed of Will dated 15.02.1993 executed by Smt. Urmila Devi, W/o Late Siya Ram in favour of Allanoor vide registration No.6885 in additional book No.3, Vol. No.1889 on pages 47 dated 15.02.1993. Copy of the said Will was exhibited as Ex.PW2/A.
3. PW3 Sh. Fazluddin is son of late Allahnoor whose examination in chief was by way of affidavit Ex.PW3/A. PW3 relied on site plan Ex.PW3/1. PW3 was duly cross examined and discharged.
4. PW4 Mohd Iqbal is son of late Allahnoor whose examination in chief was by way of affidavit Ex.PW4/A. PW4 was duly cross examined and discharged.
5. PW5 is Sh. Ravinder Kumar Fazluddin whose examination in chief was by way of affidavit Ex.PW5/A. PW5 relied on documents Ex.PW1/B to Ex.PW1/G. PW5 was duly cross examined and discharged. ◦ There is an affidavit of Jhumman Singh filed on record as PW2 on behalf of plaintiff's. However, said witness was never examined by the plaintiffs.
DEFENDANT'S EVIDENCE:
8. On behalf of defendants No.1 to 3, two affidavits of evidence of Sh. Daya Digitally signed by HELLY HELLY FUR KAUR Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 20 of 52 KAUR 2021.07.01 16:43:06 +0530 Fazluddin & Ors. v. Daya Prakash & Ors.
Prakash were filed on 08.10.2018 and 28.05.2018. However, said witness was never examined despite several opportunities and defendant's evidence was finally closed vide order of Ld. Predecessor dated 04.12.2018.
9. Arguments were advanced by both the sides. Ld. counsel for plaintiff submitted that the plaintiffs are the owners of the property on the basis of GPA, Agreement to sell, Receipt, Will etc executed by Smt. Urmila Devi in favour of father of Plaintiffs No.1 to 9 which have been proved by witness PW5. It was submitted that defendants No. 1 to 3 have relied upon a Will of year 1973 stating that they became aware of the same in the year 2002 but they have not brought on record the receipt through which they allege to have come into the knowledge of the will nor the will has been proved by calling any attesting witness. Further that defendants never asked for any rent from the plaintiffs from year 1973 till 2002. It was finally submitted that plaintiffs be declared the owners of the suit property and the defendants be restrained from creating third party rights and dispossessing the plaintiffs. Per contra, Ld. Counsel for plaintiff submitted that plaintiffs have got the suit property transferred in their name illegally in collusion with Smt. Urmila Devi who herself did not have title of the property. It was submitted that the Will Suit No. : 95918/16 (old No. : 564/16) Digitally signed Pg 21 of 52 HELLY by HELLY FUR KAUR FUR Date:
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relied upon by the defendants No.1 to 3 is a registered Will and they are the owners of the property, their late father being beneficiary under the Will.
Further that the whole property was owned by Smt. Jai Devi only and the suit property which devolved on the father of defendant no. 1 to 3 as per the Will.
10. I have heard the arguments and perused the record.
11. Before delving further, I shall decide the objection raised as to mode of proof of power of attorney Mark A allegedly executed in favour of Plaintiff No.4 by the other plaintiffs to pursue the legal proceedings in relation to the suit property. Indeed, the power of attorney has been filed in the form of photocopy and despite the objection, original was not brought by the plaintiff No.4. It is trite law that secondary evidence can be led only when primary is admissible and it is shown by the party that it cannot be produced. In the present case, plaintiff has not given any explanation to attract any of the clauses of section 65 of Indian Evidence Act, 1872. Therefore, in strict terms of law, the secondary evidence in this case cannot be admitted. Having said that, it becomes relevant to determine the consequences of the decision of this objection. At the cost of repetition, it may be stated that the document Mark A is a general power of attorney Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 22 of 52 KAUR FUR Date:
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allegedly executed in favour of Plaintiff No.1 by the other plaintiffs to pursue the suits related to suit property. Once the said document is not admitted in evidence, the whole suit of the plaintiff becomes a question mark. This is so because the plaint has been signed by only Plaintiff No.4 and not by any other plaintiff. As per order 6 Rule 14, the plaint can be signed by one of the plaintiffs provided he has been duly authorized to do so by other plaintiff which has not been duly fulfilled in the present case. More so, plaintiff No.4 has not made any endeavor to summon any witness or the other plaintiffs to prove the document. However, it would be legally prudent to still adjudicate the suit on merits and not deprive the plaintiff of the same due to procedural irregularities. The fact that even some of the other plaintiffs entered into witness box to otherwise depose as PWs can be taken into account in favour of the plaintiff for this purpose. ISSUEWISE FINDINGS:
12. Now, issuewise findings are as follows: Issues No.3, 4, 5, 6 & 7 are taken up first.
ISSUE NO.3 Whether the suit is not maintainable in the present form?
13. Paragraph 1 of the Written statement raises a preliminary objection that the Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 23 of 52 FUR Date:
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suit is not maintainable in the present form as it is a counter blast to the legal notice issued on behalf of defendants No.1 to 4 duly served upon the plaintiffs before filing of the present suit. The issue seems to have been framed on the basis of this objection only. It is apposite to note that the cause of action disclosed in the plaint is the legal notice. It is only pursuant to the legal notice, the plaintiffs faced a denial of their alleged title and opted to sue for declaration. It would be unjust to consider the very cause of action as the basis for nonmaintainability of the suit. Moreover, nothing has been brought on record to show that the suit was filed as a counter blast as averred in the written statement.
14. Hence, this issue is decided against the defendants and in favor of the plaintiffs.
ISSUE NO.4 Whether the suit is barred by Order 2 rule 2 as prayed? OPD
15. Defendants No.1,2 and 3 have taken this plea stating that the defendants No.1 to 4 have already filed a suit for declaration, cancellation of document, mandatory and permanent injunction in which present plaintiffs have been impleaded as Defendants No.1 to 10 and the same is pending.
16. It would be beneficial to reproduce Order 2 rule 2 of CPC:
Digitally signed by HELLY HELLY Suit No. : 95918/16 (old No. : 564/16) FUR FUR KAUR Pg 24 of 52 Date:
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2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
17. The provision is very clear that it applies to a situation when a plaintiff Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Pg 25 of 52 Date:
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does not claim whole claim or all the reliefs in a suit and he files a second suit whether during the pendency of the previous suit or after its disposal. In the present case, the plaintiffs were defendants in the suit as alleged by the defendants 1,2 and 3 herein. Therefore, this provision is not attracted.
18. Hence, this issue is decided against the defendants and in favour of plaintiffs.
ISSUE NO.5 Whether the suit is liable to be stayed under section 10 of CPC? OPD.
19. Needless to say, an issue is framed when a question needs to be decided by way of evidence to be ultimately proved by the party on which the onus lies. Onus of this issue was on the Defendants. It is also significant to mention that in the replication, plaintiff has denied the relevant paras of the written statement therefore it is reiterated that the defendant had to bring this case within the ambit of Section 10 of CPC.
20. Section 10 of CPC deals with stay of suit in case another suit with directly and substantially same matters in issue is already pending in another jurisdictional Indian Court between same parties under same title. Defendant has not brought anything on record in relation to the Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR Pg 26 of 52 KAUR FUR Date:
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previous suit. In absence of pleadings of the previous case on record of this case, the court cannot adjudicate on the applicability of this section.
21. Having said this, it is indispensable to note that the perusal of record reveals that vide Order dated 18.10.2002 of Ld. District & Sessions Judge, this matter was transferred to this court from another court to avoid conflicting judgments keeping in view that another matter was pending in this court wherein plaintiffs herein were defendants and few of the defendants were plaintiffs. Therefore, it is not denied that both the said suits are pending in this court. Even, this court heard the arguments of both the suits together. However, separate issues were framed and they were tried separately under separate numbers. At this juncture, it is prudent to take note of the judgment of Hon'ble Delhi High Court in S.C. Jain v. Bindeshwari Devi 67 (1997) DLT 189. Relevant extract from the judgment is as follows:
Three neighboring concepts, often confused with each other, may be made precise. They are (i) a direction for analogous or simultaneous hearing of the suits; (ii) consolidation of suits in their entirety and (iii) consolidation of suits for the purpose of trial.
Digitally Suit No. : 95918/16 (old No. : 564/16) Pg 27 of 52 signed by HELLY HELLY FUR KAUR FUR Date:
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A direction for analogous or simultaneous hearing of the suits requires the court to take up the two suits for hearing on the same date. The identity of the suits remains distinct and independent from each other. It is not merged either wholly or even partially. The hearing takes place separately in each suit though on the same date. Such are the cases where on account of similar or same question of law arising for decision in different suits or same material witness being required to be examined in different suits, for the sake of convenience the court directs the suits to be taken up for hearing on one day. There may be cases where in spite of the parties and or the subject matter being different, not attracting applicability of section 10, section 151 CPC, the court feels that while hearing one suit, it must keep a watch on the progress of or developments in the other suit, and therefore, directs the two suits to come up for hearing on the same day.
22. The above excerpt from the judgment clears the air that in the present situation stated above, Ld. Predecessors of this court adopted this method of simultaneous hearing of both the suits after both the suits were directed to be tried by the same court by Ld. District and Sessions Judge. There is no order on record ordering consolidation of suits nor the evidence was Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 28 of 52 FUR Date:
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recorded as common for both the suits. It is not intended to convey that there was no possibility of applicability of section 10 rather it is being conveyed by the above observation that both the suits being totally independent and distinct, records of one cannot be read into the other in absence of specifically being on record of the former.
23. In view of the above observations, it is concluded that defendant has failed to discharge burden of this issue.
24. Hence, this issue is decided against the defendants and in favour of plaintiffs.
ISSUE NO.6 Whether the suit is barred by limitation, as claimed? OPD.
25. It is averred in the written statement that the suit is time barred as the documents are dated 12.02.1993 while the present suit has been filed by the plaintiffs on 02.08.2002. The relief claimed in the plaint is declaration in favour of plaintiff declaring them as owners of suit properties being WZ 93/3, main Najafgarh Road, Tatarpur, Tagore Garden, New Delhi - 110027. Another relief claimed is perpetual injunction restraining the defendants from dispossessing the plaintiffs as well as creating any third party interest in the suit property. It is a settled law that declarations have to be claimed Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 29 of 52 FUR Date:
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within three years from the date when right to sue accrues. In the present case, it is averred in the plaint that plaintiff received a notice dated 06.07.2002 for and on behalf of defendants No.1 & 3 questioning the rights, title and interest of the plaintiff in the suit property. The same is not denied by the defendants No.1, 2 & 3 in their written statement. Therefore, it is clear that the title of the plaintiffs was challenged by the defendants No.1, 2 & 3 only 06.07.2002 and only after that occasion, plaintiffs could have filed the suit within three years from that date. As far as relief of injunction is concerned, plaintiffs have averred that they were threatened to be dispossessed by the defendants No.1, 2 & 3 on 14.07.2002. Though, the said averment has been denied by the corresponding defendants. Still, it is evident from the legal notices Ex.PW1/I that defendants No.1 & 3 had also mentioned about recovery of possession from the plaintiffs. The suit was filed on 02.08.2002. Accordingly, this relief is also within limitation. Hence, this issue is decided in favour of plaintiffs and against the defendants. ISSUE NO.7 Whether the suit is bad for nonjoinder of parties as claimed? (OPD).
26. This issue apparently has been framed on the averment of the defendant in the written statement that another person who claims himself to be the Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 30 of 52 FUR Date:
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owner of the property and against whom plaintiffs are already under litigation has not been added as party to the suit. Notably, in the replication, plaintiff has averred in the corresponding paragraph that the objection has been taken in collusion with one Sh. Sangat Singh who is claiming rights on the basis of the forged documents and he has filed a suit under the title Sh. Sangat Singh v Jhumman Singh and Ors. Therefore, it is an admitted position that a person named Sangat Singh has also adverse claims regarding the suit property. Now, the question that arises is that whether the suit would be bad for his nonjoinder or not. At the outset, it may be mentioned that as per Proviso to Order 1 Rule 9, nonjoinder of only a necessary party may be fatal to the suit. It is a settled law that necessary party is one in absence of whom, the case in hand cannot be adjudicated.
27. In Mumbai international airport pvt ltd vs .Regency convention centre and hotels pvt. Ltd & Ors., it was held by Hon'ble Supreme Court:
A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 31 of 52 FUR Date:
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a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made.
28. To determine whether in the instant case if Sh. Sangat Singh was a necessary party, it is essential to note the nature of the suit and relief. The present suit is a suit for declaration of ownership. Needless to say, the same has been claimed under Section 34 of Specific Relief Act, 1963. As per Section 35 of the Act, the judgment in such a suit is a judgment in personam meaning thereby it would bind only the parties to the suit and their representatives or persons claiming through them. Therefore, firstly it is clear that even if the plaintiff would have been declared owner, it would not bind any third person not claiming through present defendant. Ostensibly, Sh. Sangat Singh would not have set up a derivative title flowing from defendant thereby remaining out of the ambit of the judgment. Having said that, it is also worth mentioning that as per the plaint, the defendant had sent a notice to the plaintiff for vacation of suit premises which became the basis of this suit for declaration and injunction. On the Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 32 of 52 FUR Date:
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other hand, Sh. Sangat Singh had filed a suit against the present plaintiff in a different court meaning thereby that the present set of facts are entirely different from the claim of Sh. Sangat Singh. Nonjoinder of Sh. Sangat Singh doesn't seem to be a hurdle in adjudicating the present facts per se. At the same time, it is not denied that adverse claims by different persons to the same property could lead to multiplicity of suits if not joined. At this juncture, I would take the benefit of the judgment of Hon'ble Supreme Court in Ramesh Hiranand Kundanmal vs Municipal Corporation Of Greater 1992 SCR (2) 1, in which, while discussing Order 1 Rule 10, it was held:
It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party.
29. Further, it was held:
Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order I Rule 3, to avoid multiplicity of suit and needless Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Date:
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expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him.
30. The above excerpt implies that plaintiff has the prerogative to sue and not to sue a particular person. However, the Court has power to add such parties presence of which would secure a comprehensive and effective decree.
31. Indeed, presence of Sh. Sangat Singh could have lead to a comprehensive, effective and adequate adjudication as admittedly he also claims ownership of the same suit property but given that he would have not claimed through the present defendant and would also not have had any link with the present set of facts, he doesn't seem to be necessary party. More so, if two people challenge a right of a person, especially in different manners and at different times, it is the latter's prerogative to choose whom he wishes to sue. Therefore, nonjoinder of Sh. Sangat Singh cannot lead to dismissal of suit right away. Hence, this issue is decided against defendants and in favour of plaintiffs. Digitally signed
HELLY by HELLY FUR
KAUR
Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 34 of 52
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ISSUE NO.1 Whether the plaintiff is entitled to a decree of declaration as prayed? OPP.
32. Generally, relief of declaration is sought and adjudicated under section 34 of Specific relief Act, 1963. For sake of convenience the same is reproduced as under:
34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
Digitally
signed by
HELLY HELLY FUR
KAUR
FUR Date:
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The section can be dissected into two parts:
I. Person(plaintiff) is entitled to legal character or to any rights to any property II. Another person(defendant) has denied his title to such character or right.
33. It is also notable that this remedy of declaration is a discretionary remedy as evident from heading and body of the provision.
34. Now these shall be the parameters for adjudication under this issue.
35. In facts of the present case, plaintiffs have alleged that on the basis of GPA, Agreement to sell, Affidavit, Receipt and Will dated 12.02.1993 executed by Late Smt. Urmila Devi who was mother of Defendants No.9 to 11 herein in favour of father (Allah Noor) of plaintiffs No.1 to 9 they became the owners pursuant to death of Allah Noor.
36. Two significant questions which arise here are that first, if the plaintiffs have been able to prove valid execution of these documents and secondly whether these documents could have conferred ownership on the father of plaintiff as per law.
37. I deem it wise to discuss the legal aspect first. As stated above, the set of documents relied upon by the plaintiffs contains GPA, Affidavit, Agreement Digitally signed by HELLY HELLY FUR KAUR Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 36 of 52 KAUR 2021.07.01 16:45:39 +0530 Fazluddin & Ors. v. Daya Prakash & Ors.
to sell, Will and possession letter. Therefore at the threshold it is pertinent to discuss the law laid down in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. 183 (2011) DLT 1 (SC).
38. It was held:
"We reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property."
39. As far as Power of Attorney and agreement to sell are concerned, it was categorically held:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the granter authorizes the grantee to do the acts specified therein, on behalf of granter, which when executed will be Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Date:
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binding on the granter as if done by him...". Further that "It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
"Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
40. Reading of these paras of the judgment makes it clear that a power of attorney even if irrevocable or, an agreement to sell cannot confer title on any person. At most, there can be a suit for specific performance on the basis of agreement to sell and also protection of possession under Section 53A of TPA,1882.
Digitally
signed by
HELLY HELLY
FUR KAUR
Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 38 of 52
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41. At this juncture, reference may also be made to judgment of Hon'ble Delhi High Court in Hardip Kaur v. Kailash 193(2012) DELHI LAW TIMES 16 under which section 202 of Indian Contract Act was invoked to highlight the effect of such documents. It was held:
The agreement to sell of itself may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property"
within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
Digitally signed by HELLY HELLY FUR Suit No. : 95918/16 (old No. : 564/16) FUR KAUR Date:
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The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/ revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff's remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
The object of giving validity to a Power of Attorney given for consideration even after death of the executants is to ensure that entitlement under such Power of Attorney remains because the same is not a regular or a routine Suit No. : 95918/16 (old No. : 564/16) Pg 40 of 52 Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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Power of Attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the Power of Attorney.
(ix) The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
42. As seen from the extracts from the judgment, the words 'interest' used in section 202 of Indian Contract Act 1872 has been said to include the interest created by way of payment of consideration along with execution of set of documents consisting agreement to sell, receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney except in case of express contract to contrary. Meaning thereby that attorney cannot be revoked in such cases as per Section 202 of Indian Contract Act. However, it is pertinent to mention that in Hardip Kaur (supra) the plaintiff had sought Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY Pg 41 of 52 FUR KAUR FUR Date:
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possession and mesne profits and the defendant raised a plea based on documents of GPA sale. It is also indispensable to note that the concluding words of the judgment are very clear that a person in whose favour documents of GPA sale have been executed cannot be said to be a classical owner but has a better entitlement to possession. Therefore, this judgment is in complete consonance with the ruling of Suraj Lamp judgment that ownership cannot be transferred by such documents rather only by a registered sale deed. Hence, this judgment comes to rescue of a person only as far as protection of possession is concerned.
43. Before jumping onto conclusion on the basis of above deduction, another question which arises here is whether the judgment in Suraj Lamp (supra) applies to such documents executed prior to 2011 i.e., passing of the judgment or not. Certain paras of the judgment are reproduced for this purpose:
Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as Digitally signed by HELLY HELLY Suit No. : 95918/16 (old No. : 564/16) FUR FUR KAUR Date: Pg 42 of 52 KAUR 2021.07.01 16:46:28 +0530 Fazluddin & Ors. v. Daya Prakash & Ors.
a mode of transaction" when dealing with transactions by way of SA/GPA/ WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/ WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to Digitally signed by HELLY HELLY Suit No. : 95918/16 (old No. : 564/16) FUR FUR KAUR Pg 43 of 52 Date:
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and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/ WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 44 of 52 FUR Date:
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attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/ WILL transactions' are not intended to apply to such bonafide/genuine transactions."
44. Certain portions of the above excerpt have been underlined to answer the selfraised question. It is very clear from these portions that Hon'ble Court only reiterated settled law and expressly carved out exceptions in which cases the GPA sale documents would not be affected and would continue to confer certain rights in contrast to others. The exceptions derived are:
1. Regularization of leases/allotment by DDA.
Digitally signed by HELLY HELLY FUR KAUR Suit No. : 95918/16 (old No. : 564/16) FUR Date: Pg 45 of 52 KAUR 2021.07.01 16:46:51 +0530 Fazluddin & Ors. v. Daya Prakash & Ors.
2. If documents have already been acted upon by DDA or municipal authorities to effect mutation.
3. Genuine transactions involving sale agreements and power of attorneys which are also regulated by State laws.
45. The factual matrix of the present case does not fall under any of the above exceptions as plaintiffs have not proved, in fact, not even averred about any mutation on the basis of these documents. It has been admitted by PW 1 and PW 3 in cross examination that his father never applied for mutation. Nor they were in any way related to the executant to fall under exception no.3.
46. Therefore, effect of Suraj Lamp judgment is very much applicable to this case. It is relevant to remind here that the substantial and primary relief sought by plaintiffs is that they be declared owners of the suit property.
47. Having discussed this, it is also important to advert to another judgment of Hon'ble Delhi High Court which was also relied upon in Hardip Kaur (supra) i.e, Ramesh Chand v. Suresh Chand ILR (2012) V DELHI 48.
48. In the latter case, apart from what has been laid down in Hardip Kaur v Kailash, another aspect was touched by Hon'ble High Court. It was noted that as the testator/executant of documents had passed away, 'Will' came into operation therefore, ownership was also transferred.
Digitally signed by HELLY HELLY Suit No. : 95918/16 (old No. : 564/16) FUR FUR KAUR Date:
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49. In the present case, the executant/testator has already died. Therefore, this aspect has to be examined. Undoubtedly, Registered Will Ex.PW 1/F has been proved by attesting witness However, firstly, para 12 of the plaint is not ignorable. It states that a third person who is claiming his rights on forged documents has filed a false and frivolous petition in the court of Ld. ARC Delhi which is being contested by plaintiffs. Therefore, as per the case of plaintiffs only, the possibility of documents in favour of that third person prior to the date of documents in favour of father of Plaintiff no 1 to 9 cannot be ruled out.
50. Secondly, another dimension to be considered is that whether Smt. Urmila Devi herself had the title of the property or not. This assumes relevance as the settled principle of law is that a person cannot transfer what he/her himself/herself does not have and this case involves a property which was owned originally by Smt. Jai Devi, Mother in Law of Smt. Urmila Devi. As per Section 15 r/w Section 16 of Hindu Succession Act, 1955, when a Hindu female dies intestate the property is devolved firstly upon, sons and daughters (including children of any predeceased son or daughter) and the husband and only when no person in this entry of this Section is existent the consequent entry come into picture. It implies that in case of a Digitally signed by Suit No. : 95918/16 (old No. : 564/16) HELLY HELLY FUR KAUR Pg 47 of 52 FUR Date:
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predeceased son, his children inherit equally with other sons and daughters of the deceased but widow of the predeceased son does not inherit the property of the Hindu female. In the present case, Smt. Urmila Devi was admittedly widow daughter in law of Smt. Jai Devi being wife of predeceased son Sh. Siya Ram. Therefore, according to the above discussed law she did not have any right in the property. It has been averred by the plaintiff that family of Smt. Jai Devi i.e., defendants settled among themselves by mutual family settlement that the portion in which suit property is situated is the share of Sh. Siya Ram Gupta who was husband of Smt. Urmila Devi. The said averment has been denied by Defendant no 1 to 3 in their written statement. Therefore, the burden of proof of the same was upon plaintiffs. Plaintiffs have not brought on record anything to show the same rather it has been stated in cross examination of PW4 that no partition took place in his presence. It is also relevant to note that in point 4 of GPA Ex PW1/B, it is written that first party (Urmila Devi) has handed over the previous documents to the said property to the second party. Plaintiffs have not brought on record any such documents rather it was stated by PW3 and PW4 in cross examination that he cannot say whether his father had seen documents of ownership of Smt. Urmila Devi. Therefore, plaintiffs Suit No. : 95918/16 (old No. : 564/16) Digitally signed by Pg 48 of 52 HELLY HELLY FUR KAUR FUR Date:
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have failed to discharge the burden of proving this fact which is quintessential in the present set of facts in view of operation of Section 15 of Hindu Succession Act, 1955.
51. In view of the above observations, finding on the factum of execution of the documents becomes redundant. It is not denied that one of the attesting witness Ravinder Kumar was examined as PW5 and he stood the test of crossexamination. However, the Court of Law is bound by settled principles of law therefore, even if a document is proved to have been executed, it cannot become enforceable de hors the law.
52. Hence, this issue is decided against the plaintiffs and in favour of the defendants.
ISSUE NO.2 Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed? OPP.
53. It has been prayed by the plaintiff that the defendants be restrained from dispossessing the plaintiffs as well as creating third party interest in the suit property.
54. At the outset, it is relevant to note Section 38 of the Specific relief Act which enunciates essentials of perpetual injunction i.e., there must be an Digitally signed by HELLY HELLY FUR KAUR FUR Suit No. : 95918/16 (old No. : 564/16) KAUR Date:
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obligation existing in favor of the plaintiff which has been or is likely to be breached by the defendant. Firstly, it is not disputed that plaintiffs are in possession of the disputed shop. Secondly, as mentioned above, the basis of the suit of the plaintiff is documents including GPA, Agreement to Sell, Affidavit etc. In Hardip Kaur (supra), it was held that an agreement to sell for a valid consideration coupled with possession and simultaneous execution of the above referred documents amounts to an interest under Section 202 of Indian Contract Act, 1872 which in turn gives a better right to possession.
In the present case, it is noticeable that Ex.PW1/C agreement to sell (which is part of the set of documents executed as a part of one transaction) has not been signed by Second party to the document (Allah Noor). Further, PW5 nowhere stated that Allah noor signed the said document. It is not denied that the agreement to sell was very much part of the set of documents and that it is not always mandatory that an agreement to sell shall be signed by the buyer as well however, it can also not be ignored that though Allah noor (second party) was present, he did not sign the document. Therefore, factum of execution of agreement to sell cannot be taken without of pinch of salt and therefore, it does not inspire Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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confidence of court. Besides, the plaintiffs have taken a plea of Section 53A of Transfer of Property Act, 1872 to protect possession. However, the provision is clear that only transferor or person claiming through him is barred from enforcing rights in respect of that property. Apparently, the provision does not apply against any other person. In the present factual matrix, indeed the defendants are not claiming through Smt. Urmila Devi nor plead themselves to be the subsequent purchasers. More so, injunction is an equitable and discretionary relief. Keeping in mind the observations made above under Issue no.1, it is not deemed equitable to grant a blanket injunction to the plaintiffs restraining the defendants from dispossessing the plaintiffs from the property.
55. Nevertheless, it can also not be lost sight of that in the written statement of defendants No.1, 2 & 3, it is averred that these defendants allegedly inherited the shops in possession of certain persons including Allah Noor (father of Plaintiff No.1 to 9). Even the legal notice sent by these defendants to the plaintiffs for vacating the property has not been denied by the defendants in the written statement. Therefore, it is not the case where plaintiffs are trespassers or totally devoid of any title at all. It is also trite to say that a person cannot take law into his own hands. Accordingly, at the Digitally Suit No. : 95918/16 (old No. : 564/16) HELLY signed by HELLY FUR Pg 51 of 52 KAUR FUR Date:
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most the defendants can be restrained from dispossessing the plaintiffs from the suit property without due process of law.
56. As far as injunction restraining the defendants from creating 3rd party interest is concerned, it has already been discussed in Issue no.1 that the plaintiffs have failed to show ownership or any other valid title to be entitled to such relief. Therefore, the very basic ingredient for injunction that plaintiffs have an obligation in their favor is not fulfilled for the purposes of this part of relief.
57. Hence, this issue is partly decided in favour of plaintiff and against the defendants.
RELIEF
58. In view of the discussion herein above on the issues, suit of the plaintiffs is partly allowed and defendants, their agents, associates, LRs, family members, representatives are restrained from dispossessing the plaintiffs from the suit property without due process of law. No order as to costs.
59. Decree sheet be prepared accordingly. Digitally signed by HELLY HELLY FUR KAUR FUR
60. File be consigned to Record Room.
Date:
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Announced in the open court (HELLY FUR KAUR)
on 01.07.2021 Civil Judge - 08 (Central)/Delhi
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