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Delhi District Court

Mrs Anita Kaushik vs Krishna & Ors Page No on 18 July, 2023

IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
    JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
                  COURTS, DELHI

CS DJ ADJ No. 268/2010,
516045/2016
CNR No. DLSW010012392016



IN THE MATTER OF:

        Mrs Anita Kaushik
        W/o Late Sh. Basant Kaushik
        R/o 147-A, Dayanand Complex
        Sector-4, Gurgaon                                     ... Plaintiff
                               v.

1.      Mrs. Krishna
        W/o Late Sh. Jagdish
        R/o Village and Post Office Dhansa
        New Delhi                                        ... Defendant No. 1

2.      Sh. Satish
        S/o Late Sh. Jagdish
        R/o Village and Post office Dhansa
        New Delhi                                        ... Defendant No. 2

3.      Sh. Satpal
        S/o Late Sh. Jagdish
        R/o Village and Post Office Dhansa
        New Delhi                                        ... Defendant No. 3

4.      Sh. Rajpal (since deceased)
        Through his legal heirs
        A.    Mrs. Krishna Devi (mother of deceased)
              W/o Late Sh. Jagdish

        B.      Mr. Rahul Dagar (minor son)
                S/o Sh. Rajpal

        C.      Mr. Rakshit Dagar (minor son)

CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors           Page No.1

•
         S/o Late Sh. Rajpal
        All R/o Village & Post Office Dhansa
        New Delhi                            ... Defendant No. 4

5.      Mrs. Ram Bhateri (Deceased)
        D/o Late Sh. Chandegi
        R/o Village and Post office Dhansa
        New Delhi
        Through her legal heirs
        1. Mr Hawa Singh (Son)
        2. Mr. Roshan Singh (son)
        3. Mr. Jai Bhagwan(son)
        4. Mr.Parvati (daughter)
        5. Ms.Nirmala (daughter)

        All R/o VPO Mitraon
        New Delhi                                        ... Defendant No.5

6.      Mrs. Phollo
        D/o Late Sh. Chandegi
        R/o Village and Post office Dhansa
        New Delhi                          .... Defendant No.6

7.      Mr. Uma Shankar Kaushik
        S/o Sh. Ram Chander Kaushik
        R/o Village and Post Office Dhansa
        New Delhi                                        ... Defendant No.7

8.      Mr. Devender Kumar
        S/o Sh. Shri Chand
        R/o Village and Post office Dhansa
        New Delhi                                        ... Defendant No.8




CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors            Page No.2
 Date of institution of suit                              17.02.2010
Date of order reserved:                                  17.07.2023
Date of pronouncement:                                   18.07.2023

JUDGMENT

1. The plaintiff has preferred the present suit for the relief of declaration, permanent injunction and the costs of the suit against the defendants.

Suit property:- 1/6th share of land measuring 6 biswas 13 biswani i.e. equivalent to 336 sq. yds. bearing Khasra No. 161(2-0) situated at Village Dhansa, Delhi

2. Briefly stated, it is the case of the plaintiff that defendant No. 7 namely, Uma Shankar Kaushik is her brother-in-law, who is resident of Village Dhansa, Delhi and had purchased the land measuring 1 bigha (equivalent to 1000 sq. yds.) situated in the extended abadi of Village Dhansa, Delhi (hereinafter referred as "subject property") from Mr. Jagdish, Smt. Ram Bhateri and Ms. Phallo (hereinafter referred as "Original Owners") for a sale consideration of Rs 32,000/- and the sellers executed unregistered General Power of Attorney, affidavit, Agreement to Sale all dated 23.07.1985 and in testimony of same, a receipt for a sum of Rs 32,000/- was executed and registered with the office of Sub- Registrar dated 23.07.1985 and possession of the subject property was also handed over to defendant No. 7 and everyone in the CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.3 village was aware that the subject property has been sold by Mr. Jagdish and his sister to defendant No. 7.

3. It is further stated, that thereafter on 09.10.2006, the plaintiff had purchased the subject property from defendant No. 7 for a consideration of Rs 5 lakh and in testimony of the same the defendant No. 7 executed Agreement to Sell, affidavit, Will, receipt, possession letter and an irrevocable power of attorney duly registered with the office of Sub Registrar IX all dated 09.10.2006 and also handed over the possession of the vacant land to the plaintiff and thereafter, the plaintiff carried out the fencing of the property and installed an iron gate and fixed one stone at the entry gate bearing the name and address of the plaintiff.

4. It is further the case of the plaintiff that on 27.01.2010 defendant No. 8 alongwith antisocial elements tried to encroach on the subject property and attempted to forcibly dispossess the plaintiff but with the intervention of the police they were stopped and at the police station it come to the notice of the plaintiff that defendant No. 4-Mr Raj Pal has executed sale deed of the suit property in favour of defendant No. 8 Devinder Kumar on 17.03.2009 for a consideration amount of Rs 19,39,000/- duly registered before the Sub-Registrar IX.

5. It is further the case of the plaintiff that she came to know that Mr. Jagdish expired in 2005 and his three sons i.e. defendant No. 2- Mr. Satish, defendant No. 3- Mr. Satpal and defendant CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.4 No.4- Mr. Rajpal got mutated the subject land in their name in the revenue record and thus, they became owner of 1/ 3 rd share each in the subject property.

6. It is further the case of the plaintiff that despite the fact that defendant No. 4 and defendant No. 8 being local person of the village was very well aware about the sale of the subject property to defendant No. 7 and further to plaintiff but by taking advantage that plaintiff is a widow lady they had tried to grab the subject property. It is also averred that the plaintiff has came to know that even defendant No. 3 has sold his share of 336 sq. yds. to one Jitender.

7. It is further averred by the plaintiff that the sale deed dated 17.03.2009 executed by defendant No. 4 in favour of defendant No.8 is liable to be declared null and void on the ground that the subject property measuring 1000 sq. yds. was owned jointly by Mr. Jagdish, Ram Bhateri and Phallo and thus only 1/ 3 rd share of Jagdish shall devolve upon his three sons i.e. defendant Nos. 2 to 4 and hence, they are entitled to only land measuring 80 sq. yds. (sic) each and also on the ground that the entire sale consideration has been shown to have been paid in cash and the subject property is shown as vacant plot thus, the sale deeds are camouflage and same has been executed to grab the property of the plaintiff and further on the ground that in pursuant to the complaint lodged by the plaintiff with the police and due to indulgence of local police the CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.5 statement of defendant Nos. 3,4 and 8 were taken and defendant No. 4 categorically admitted the ownership of defendant no.7 and the plaintiff and lastly on the ground that the sale deed dated 17.03.2009 is an act of fraud as the subject property had already stood transferred and possession stands handed over to the plaintiff and she is in exclusive possession since 09.10.2006 therefore, the plaintiff is the owner of the property and the defendants have no right, title or interest whatsoever in the property.

8. On the basis of the above pleadings the plaintiff has sought the relief of declaration to declare her as the absolute and sole owner of the subject property and the declaration to declare the impugned sale deed dated 17.03.2009 as null and void and also the relief of permanent injunction from restraining the defendants and their representatives/ agents from interfering and dispossessing the plaintiff from the subject property and also the costs of the suit.

9. Before proceeding further, it is apposite to mention that proceedings against the defendant No. 6 stands abated vide order dated 10.08.2010 and defendant No. 7 was declared as performa party vide order dated 13.04.2010, by the Hon'ble High Court of Delhi in its Original jurisdiction before the transfer of the present suit to this Court on the grounds of increase of pecuniary jurisdiction.

10. Summons for settlement of issues were served upon the defendants and pursuant thereto, defendant Nos. 1 to 5 filed their CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.6 joint written statement and in nutshell they have denied the entire case of the plaintiff.

11. It is the case of the defendants that Smt. Ram Bhateri and Smt. Phallo are married sisters of Late Sh. Jagdish and they relinquished their share in the subject property in favour of her brother Late Sh. Jagdish which was effected in the revenue records vide order dated 31.07.2004 in case No. M-223/TEH/NG and after the death of Sh. Jagdish i.e. the father of defendant Nos. 2 to 4, the mutation of the subject property was sanctioned in their names on the ground of succession and thus, the defendant Nos. 2 to 4 were the recorded owners in three equal shares and accordingly, defendant No.4 sold his share in the subject property i.e. 336 sq. yds. for consideration by way of sale deed dated 17.03.2009 in favour of defendant No. 8 who has become owner of part of the subject property.

12. It is further contended that the possession of the suit property was also handed over to defendant No. 8. It is denied by the defendant that the possession of the subject property was ever with the defendant No. 7. The defendants have denied that the subject property was ever sold by original owners to defendant No.7, they have denied the execution of the documents i.e. Agreement to Sell, GPA, affidavit and receipt of Rs 32,000/- as mentioned in para No. 4 of the plaint. It is also contended that in the alleged receipt of Rs 32,000/- the description /detail of the property is not mentioned.

13. Defendant No. 3 again filed a written statement contending that he is living separately from his parents and his brothers since 1995. In the written statement he admitted that he has sold his share to defendant No.8 Jitender Kumar for a sale consideration of Rs 19,50,000/- however, in actual the premises was sold for Rs 8 lakhs but he has received only Rs 5 lakhs from defendant No.8 and the cheque of Rs 2 lakhs given by him was got bounced and thus for non payment of entire sale consideration, the sale deed dated 29.04.2009 executed by him in favour of Jitender be set aside. He also claimed that his signatures on the joint written statement filed by defendant No.1 to 5 are forged by defendant No.8 and Jitender. However, at the same time it is the stand of the defendant No.3 that the plaintiff or the defendant no. 7 has no right, title or interest in the subject property and in his reply on merits, he denied the case of the plaintiff in toto.

14. Defendant No. 8 filed his separate written statement and perusal of the same it is observed that he has supported the version of defendant Nos. 1 to 5 . In nutshell, he denied that the subject property was ever sold by original owners to defendant No. 7. That Smt. Ram Bhateri and Smt Phollo during their lifetime relinquished their share in favour of Sh. Jagdish and after his death the subject property devolved upon his sons defendant Nos. 2 to 4 in equal shares and thus, he purchased the share of defendant No. 4 by way of sale deed dated 20.03.2009 and after taking possession, he has got the mutation effected in his name vide order dated 02.07.2009 in case No. M-175/TNG/2008-2009.

15. In replication, the plaintiff denied all the contentions raised by the defendants in their respective written statements and CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.8 reiterated and reaffirmed the stand taken by her in the plaint.

16. On the basis of the pleadings of the parties, the following issues are framed:

(i) Whether the plaintiff is entitled for the decree of declaration that the plaintiff is the sole and absolute owner of the suit property? OPP

(ii) Whether the plaintiff is entitled for the decree of declaration of sale deed dated 17.03.2009 as null and void? ... OPP

(iii) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? ... OPP

(iv) Whether the suit of the plaintiff is not maintainable in terms of Sections 17 & 49 of Registration Act, 1908 in the absence of registered title deeds/ documents?OPD

(v) Whether the suit of the plaintiff is based on false averments and upon forged and fabricated GPA, Agreement to Sell, cash receipt etc., all dated 23.07.1985? ... OPD

(vi) Whether the present suit is without any cause of action as alleged in the plaint? ... OPD

(vii) Relief

17. In order to prove his case, the plaintiff examined seven witnesses and she herself stepped into the witness box as PW1 and CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.9 has tendered her evidence by way of affidavit Ex. PW1/A and reiterated the stand taken by her in the plaint. She also relied upon the following documents i.e.

(i) GPA, affidavit, Agreement to Sell, Cash receipt all dated 23.07.1985 executed in favour of defendant no. 7 as Ex. PW1/1 to Ex. PW1/4 (OSR);

(ii) Agreement to sell, affidavit, Will, receipt and possession Letter all dated 09.10.2006 as Ex. PW1/5 to Ex. PW1/9 (OSR);

(iii) GPA dated 09.10.2006 is Ex. PW1/10 (OSR)

(iv) Sale deed dated 17.03.2009 -Ex. PW1/11 is already Ex. P- 1/D1,2, 4 & 8

(v) Photographs - Ex. PW/12;

(vi) Copy of letter signed by Rajpal - Ex. PW1/13, and

(vii) Copy of complaint lodged with Sub Registrar office, complaint lodged with local police station and statement of Devinder Kumar before the Local Police - Ex. PW1/14 to Ex. PW1/16

18. During the cross examination PW-1 admitted that police complaint dated 21.04.2010 - Ex. PW1/D1 and certified copy of the statement recorded in Crl. Complaint No. 41/1/07- Ex. PW1/D2.

19. Ct. Manju Bala appeared before the court as PW-2 and deposed that as per letter/ report of Act (HQ) dated 26.02.2016 the record of PS J.P.Kalan is handed over to Assistant Director, Delhi CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.10 Khadi and Village Industries, Nigam Bhavan, 5th and 6th Floor, Kashmere Gate, Delhi -4 for weeding out and using the same for manufacturing of hand made paper/ file cover by recycling and proved the said letter Ex. PW2/X, relevant entry in this regard is at Serial N. 20 which is marked with red ink at point 'A'.

20. Mr. Anil Kumar, Patwari, from the Tehsil Najafgarh District South West appeared before this Court as PW-3 and proved the original khata khatoni for the year 2012-2013 of khasra No. 161(2-

0) bearing khata Khatoni number 327/309 min. of Village Dhansa, copy of the same is Ex. PW3/1 (OSR).

21. Mr. Sandeep Kumar, Record keeper from Sub- Registrar IX, Kapashera, Delhi has appeared before this Court as PW-4 and proved the original GPA dated 09.10.2006 already Ex. PW1/10 which is bearing registration No. 8849 Book No. IV, Volume No. 1079 on pages 129 to 133.

22. Mr. Uma Shankar appeared before this Court as PW-5 and tendered his evidence by way of affidavit Ex. PW5/X.

23. Mr. J.C.Yadav appeared in the witness box as PW-6 and deposed that he is the witness in the documents i.e. Agreement to sell, Will, Receipt, possession Letter executed by Sh. Uma Shankar Kaushik in favour of Ms Anita Kaushik on 09.10.2006 bearing his signatures as attesting witness on all the aforesaid documents at point A on each document and the said documents are Ex. PW1/5, Ex. PW1/7 to Ex. PW1/10.

24. Mr. R.P.Yadav appeared in the witness box as PW-7 and deposed that he is the witness in the documents i.e. Agreement to sell, Will, Receipt, possession Letter executed by Sh. Uma Shankar Kaushik in favour of Ms Anita Kaushik on 09.10.2006 bearing his signatures as attesting witness on all the aforesaid documents at point 'B' on each document and the said documents are Ex. PW1/5, Ex. PW1/7 to Ex. PW1/10.

25. Thereafter, plaintiff closed her evidence and matter was fixed for defendant's evidence.

26. Defendant No. 4- Mr. Rajpal appeared before the Court as DW-1 and tendered his evidence by way of affidavit Ex. DW1/A and reiterated the stand as taken by him in the joint written statement which is not reproduced herein for sake of brevity and he relied upon the document i.e. Khata Khatauni - Mark 'A'.

27. During his cross examination, DW-1 was confronted with the copy of Relinquishment deed - Ex. DW2/P-1 on which he admitted his signatures at point 'X' and 'Y'. He was also confronted with the photocopy of one statement alleged to be suffered by him before PS J.P.Kalan i.e. Ex. DW2/P2 and also with original copy a document claimed by the plaintiff to be handwritten and signed by DW-1, admitting the sale of the subject property by the original owners to defendant No.7 and by defendant No. 7 to the plaintiff i.e. Ex. DW2/P3, however, DW-1 has denied his signature of Ex. DW2/P2 and his handwriting and CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.12 signatures on Ex. DW2/P3.

28. Mr. Anil Kumar, Patwari from the office of SDM Najafgrah appeared and proved the Khata Khatoni for the year 1995-1996 - Ex. DW2/1 (containing three pages) and the mutation proceedings bearing No. M-63/TEH/NG/2006-2007 dated 18.10.2006 and M233/TEH/NG/2003-04 dated 31.07.2004 - Ex. DW2/2 and Ex. DW2/3

29. Mr. Devender Kumar appeared in the witness box as D8W1 and tendered his evidence by way of affidavit Ex.D8W1/A. He has also relied upon the following documents :-

(i) Original sale deed dated 20.03.2009 is marked as Ex. D8W1- 1/1, and

(ii) copy of khata Khatoni of khata No. 309/183 min is marked as Ex. D8W1/2.

30. Mr. Raj Kumar appeared before this court as D8W2 and proved the copy of Sale deed bearing registration No. 2005, Addl. Book No. 1, Vol. No. 4760 on pages 139-144 dated 20.03.2009. He further deposed before the Court that he has compared the sale deed which is already exhibited s Ex. D8W1/1 and the same is found correct as per the record brought by him today.

31. Mr. Rakesh Kumar appeared before this Court as D8W3 and deposed that presently he was working as Kanungo Sub-Division Najafgarh, New Delhi and today he had brought the summoned record i.e. Misal bearing No. M175/Tech./NG/2008-2009 CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.13 involving transfer of land from Sh. Rajpal in favour of Sh. Devender Kumar, copy of the same is Ex. D8W3/1 (OSR).

32. Mr. Balraj Singh, Kanungo from the office of SDM Najafgarh, New Delhi appeared before this Court as DW-9 and proved the khata Khatoni for the year 1995-1996 which is already exhibited as Ex. DW2/1, mutation proceedings dated 18.10.2006 and 31.07.2004 which is already exhibited as Ex. DW2/2 and Ex. DW2/3 respectively.

Arguments

33. The Ld. Counsel for the plaintiff has argued that the plaintiff has duly proved the set of documents i.e. Ex.PW-1/1 to Ex.PW-1/10 and also the statement given by defendant No. 4 at the police station on 27.01.2010 i.e Ex. PW1/13, wherein he has admitted the ownership of the defendant no.7 and the plaintiff and it also stands proved from the testimonies of the defendants that the impugned sale deed is nothing but a camouflage to defeat the rights of the plaintiff. He argued that the defendants have miserable failed to show the receipt of sale consideration of Rs. 19,39,000/- from the defendant no.8 and thus, on the basis of registered irrevocable GPA dated 09.10.2006 coupled with agreement to sell, receipt, affidavit, Will and possession letter all dated 09.10.2006, the plaintiff is entitled for the relief of declaration and permanent in junction as prayed for.

34. Per-contra, the Ld. Counsel for the defendants has argued that at the first instance the plaintiff has failed to prove in the affirmative the set of documents i.e. unregistered GPA, ATS, affidavit and regd. Consideration Receipt (Ex. PW1/1 to Ex. PW1/4) alleged to be executed by original owners in favour of the predecessor in interest of the plaintiff on the basis of which she is deriving her title to the subject property. The Ld. Counsel submitted that plaintiff has neither called the attesting witnesses of the Ex. PW1/1 to Ex. PW1/4 nor the handwriting experts to prove those documents and in as much as that even the defendant No. 4 was never confronted with said set of documents during his cross examination to prove that the same bears the signatures of his late father Sh. Jagdish and aunts Smt. Ram Batheri and Smt. Phollo.

35. The Ld. Counsel further argued that if for the sake of argument, it is presumed that the said set of documents stands duly prove, even than the plaintiff is not entitled for the either the positive relief of declaration to declare her the owner of the suit property nor the negative relief to declare the impugned sale deed as null & void as admittedly, none of the documents relied upon by the plaintiff confer any valid title either on the defendant no.7 or the plaintiff, hence, the suit of the plaintiff by all means is liable to be dismissed. He relied upon the following judgments in order to buttress his arguments, i.e. Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr., (2012) 1 SCC 656, Wg. CDR.(Retd) Sh.

Yeshvir Singh Tomar vs. Dr.O.P.Kohli & ors - CS (OS) No. 218/2015 decided on 03.08.2015, Pushpa Devi Bharti & Ors vs. Harish Arora & Anr - CS (OS) 459/2017 decided on 08.05.2019, Bishan Chand vs. Ved Prakash (since deceased) -2018 (172) DRJ 420 and Balram Singh vs. Kelo Devi - Civil Appeal No. 6733/2022.

36. In rebuttal arguments the Ld. Counsel for the plaintiff has argued that the reliance on the judgments including the judgment of Suraj lamp (supra) by the counsel for the defendants is totally misplaced one as the said judgment was delivered in the year 2011 and the same is prospective in operation and even in para No. 19 of the judgment, the genuine transactions between the parties are well protected. The Ld. Counsel further argued that one cannot lose sight of the fact that the GPA executed by the original owners in favour of defendant no. 7 was covered by Section 202 of the Indian Contract Act, 1872 as the agency was created in favour of defendant no.7 coupled with interest in the subject property, thus, making the GPA dated 23.07.1985 irrevocable and therefore, the same is binding on the legal heirs of the Late Sh. Jagdish, Ram Bhateri and Phollo and thus, once the original owners already parted with their title in the subject property in favour of defendant No.7, even if the mutation of the subject property was sanctioned in favour of the defendant Nos. 2 to 4 being the LRs of Late Sh. Jagdish, the same does not confer any valid title upon them as CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.16 admittedly, it is settled position of law that mutation in the revenue register is only for the purpose of payment of property tax and none else.

37. The Ld. Counsel for the plaintiff also argued that even otherwise Sh. Jagdish, Smt. Ram Bhateri and Smt. Phullo were having 1/3rd share each in subject property measuring 1000 sq. yards i.e. 333.33 sq. yards each and Sh. Jagdish died intestate leaving behind his wife-defendant no.1 and three sons-defendant no. 2 to 4 and therefore, all four of them were entitled to only 83.25 sq. yards of property each, thus, the impugned judgment is liable to be set-aside on this ground alone. In order to buttress his arguments, the Ld. Counsel has relied upon the following judgments i.e. Bhimabai Mahadeo Kambekar (Dead) vs. Arthur Import & Export Co. - Civil Appeal No. 1330 of 2019 (SC), Sh. Ramesh Chand vs. Suresh Chand & Anr RFA No. 358/2009 (HC),Maya Devi vs. Lalta Prasad- Civil Appeal No. 2458 of 2014 of (SC) and Alka Bose vs. Parmatma Devi & Ors decided on 17.12.2008 (SC).

38. In counter to the last argument of the Ld. Counsel for the plaintiff, the Ld. Counsel for the defendants submitted that the subject property is governed by Delhi Land Revenue Act, 1954 and in the year 2004, all the sisters of Late Sh. Jagdish and Late Sh. Ramphal by way of Relinquishment Deed, relinquished their share in favour of their two brothers i.e. Late Sh. Jagdish and the LRs of CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.17 Late Sh. Ramphal and thus, both of them became joint owners of property measuring 1000 sq. yds. each and after the death of Late Sh. Jagdish, by by virtue of Section 50 of the DLR Act, 1954,which provides that the interest in the property shall devolve only on males, the subject property measuring 1000 sq. yds. equally devolve upon his three sons ie.. defendant Nos. 2 to 4 and thus, the defendant No.4 has validly executed the impugned sale deed in favour of the defendant No. 8. It is relevant to mention here that the Ld. Counsel for the plaintiff himself placed on record the gazette notification dated 18.06.2013 issued by Ministry of Urban Development, Delhi, which shows that the area where the subject property is situtated was governed by DLR Act, 1954, at the relevant point of time.

39. I have heard the arguments and have also gone through the entire ocular as well as documentary evidence lead by the parties before this Court and now my issue-wise finding is as under:-

ISSUE-WISE FINDINGS Issue no. iv Whether the suit of the plaintiff is not maintainable in terms of Sections 17 & 49 of Registration Act, 1908 in the absence of registered title deeds/ documents ?OPD

40. The onus to prove the issue was on the defendants. The above issue was framed on the contention of the defendants raised CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.18 in the Written statements and as argued by the Ld. Counsel on their behalf that as the set of documents i.e. GPA, Agreement to sell and affidavit all dated 23.07.1985 i.e. PW-1/1 to PW-1/3 on the basis of which the defendant No.7 has executed the further set of documents in favour of the plaintiff i.e. Agreement to sell, affidavit, Will, receipt and possession Letter all dated 09.10.2006 Ex. PW1/5 to Ex. PW1/9 are unregistered documents, which as per the provisions of Section 17 of the Indian Registration Act,1908 (Act of 1908) are required to be compulsorily registerable and therefore, as per the mandate of Section 49 of the Act of 1908, they cannot be read into evidence and resultantly, the present suit of the plaintiff is not maintainable.

41. Per contra the Ld. Counsel for the plaintiff has argued that none of the three documents i.e. the GPA, Agreement to Sell and affidavit all dated 23.07.1985 and the four subsequent documents i.e. Agreement to Sell, affidavit, Will, receipt and possession letter all dated 09.10.2006, requires compulsory registration under Section 17 of the Indian Registration Act, 1908 and thus, Section 49 of the Act, 1908 is not applicable to all the above documents and therefore, the same can be read into evidence and thus, the suit of the plaintiff is maintainable.

42. As per Section 17 of the Act of 1908 only those non- testamentary instruments requires compulsory registration which purport or operate to create, extinguish etc. any right, title or CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.19 interest in the immovable property of Rs. 100 or above and in case of non-registration, those documents cannot be read into evidence as per section 49 of the Act of 1908, except for any relief claimed under chapter II of the Specific Relief Act,1963 or for collateral purposes.

43. Thus, the moot question before this Court is whether GPA, agreement to sell and affidavit all dated 23.07.1985 and Agreement to Sell, affidavit, possession letter, receipt and Will all dated 09.10.2006 create any right, title or interest in the subject property in favour of plaintiff? And the answer for the same is in the negative, hence, none of them are required to be compulsorily registered as per Section 17 of the Act of 1908 and as a necessary corollary, none of the documents are hit by Section 49 of the Act, 1908.

44. One may misconceive, as is argued in the present case by the Ld. Counsel for the plaintiff that as the set of documents of defendant no. 7 as well as of the plaintiff were executed before the pronouncement of the judgment of Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. Reported as (2012) 1 SCC 656, which was precisely delivered on 10.11.2010, thus, the set of documents of 23.07.1985 confers a valid title on the defendant no.7 and in turn the set of documents dated 09.10.2006 confers a valid titled on the plaintiff, even though if this argument of the Ld. Counsel for the plaintiff is accepted as the correct preposition of CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.20 law, the present issue is liable to be decided in favour of the defendants as in such a scenario, the set of documents relied upon by the plaintiff does require compulsory registration and as none of them is registered the same will be hit by section 49 of the Act of 1908 as admittedly, under section 49 only suits filed on the basis of unregistered document under chapter-II of the specific relief act, 1963 are protected whereas the present suit has been filed by the plaintiff under Chapter-VI of the Specific Relief Act,1963, however, the preposition put forth by the Ld. Counsel for the plaintiff is not the correct position of law for the reasons that if the entire judgment is read as a whole, especially the concluding paragraphs No. 17 to 19 which are as follows:-

17. 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 and reiterated the well-settled 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 CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.21 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 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.

(Emphasis on the underline portion supplied by this Court as in majority cases this underline portion of the judgment is misconceived and misinterpreted by CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.22 the parties).

45. The true purport of the judgment in the considered view of this Court is that the Hon'ble Apex Court has categorically held that the Court is not declaring a new law which can be made applicable prospectively nor the Court is declaring that the GPA Sale and SA/GPA/Will transfers are not valid modes of transfer but it has merely drawn attention to and reiterated the well settled 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 and the parties can on the basis of such documents can perfect their title by getting the registered deeds of conveyance and as per the latter part of the paragraph no. 18, the Hon'ble Apex Court has further clarified that if before the pronouncement of the judgment, on the basis any such SA/GPA/ATS transactions, a mutation is done by any authority, the same shall not be disturbed and that such documents executed before the pronouncement of the judgment can be relied upon to apply for regularization of allotments/leases by Development Authorities.

46. Thus, the GPA/SA/ATS transaction entered into before the pronouncement of judgment on 10.11.2010 can be used for perfecting their title in the property by getting the conveyance deed/ sale deed registered either from the original seller on the CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.23 basis of agreement to sell or from the grantee on the basis of the GPA executed by the grantor in his favour authorizing him to execute the sale/conveyance deed of title or by applying for regularization of allotments/leases by Development authorities but by no imagination it can be said that if such GPA/SPA/ATS transaction were entered into in respect of the immovable property before the Suraj Lamp judgment, such transactions by itself confers a valid title.

47. In the paragraph No. 19 of the judgment, the Hon'ble Apex Court has only clarified that the observations made in the judgment are not intended in any way to affect the validity of sale agreements and power of attorneys executed in genuine transactions, here validity of genuine transaction cannot be misconstrued in the sense that those genuine transaction means that they will per se confer a valid title in the absence of a registered sale deed or sanction by the concerned development authority.

48. One may also cannot lose sight off the observations made by the Hon'ble Apex Court in paragraph No. 11 of the judgment to the extent that as per the provisions of Section 54 of the Transfer of Property Act, 1882, a contract of sale does not of itself create any interest in, or charge on, the property and also of the observations made in paragraph No.13 of the judgment to the extent that the power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property and in as much as CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.24 that an irrevocable attorney does not have the effect of transferring title to the grantee.

49. Reference can also be made to the judgment Bishan Chand (Supra) relied upon by the defendants, wherein a similar question cropped up for consideration before the Hon'ble Delhi High Court that whether on the basis of Agreement to Sell and Power of Attorney etc. executed in the year 1984, plaintiff can seek the relief of declaration to declare him as owner of the property, apart from the relief of permanent injunction and possession. Similar, argument as raised by the ld. Counsel for the plaintiff in the present suit was raised by the Counsel for the appellant before the Hon'ble Court that the ratio of Suraj lamp (supra) does not apply since the documents are of the year 1984 i.e. prior to the pronouncement of the said judgment. However, the Hon'ble Court after relying upon the relevant paragraphs of the Sural lamp judgment, in para no. 14 observed as under:-

14. However, as would be clear from the aforesaid paragraphs, the judgment does not lay down any new law or principle and is not path breaking and merely reiterates the well settled legal position as always understood in the past as well. Even on request to make the judgment applicable prospectively, it was clarified that SPA/GPA/Will transactions effected prior to the said judgment, could not be treated as completed transfers or conveyances and could be treated as existing agreements of sale on basis of which conveyance deeds to perfect title could be CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.25 obtained or specific performance sought or defence of Section 53A of Transfer of Property Act, 1882 taken or registration from development authorities sought. It was further clarified that where on basis of SPA/GPA/Will transactions, mutations had already been effected, such mutations will also not be disturbed on account of the judgment. Supreme Court nowhere said that SPA/GPA/Will transactions of a date prior to the judgement will constitute a title.

Rather, it was held, they would not. The appellant / plaintiff thus cannot claim that he has title to the property as agreement purchaser and the courts cannot declare the appellant / plaintiff to be having title to the property.

50. Reference can also be made to the recent decision of the Hon'ble Supreme Court titled as Ghanshyam vs Yogendra Rathi, 2023 LiveLaw (SC) 479, in the instant case, the issue before the apex Court was whether on the basis power of attorney, the will, the agreement to sell, coupled with possession memo and the receipt of payment of sale consideration all dated 10.04.2002, would confer any title upon the respondent/plaintiff to entitle him to a decree of eviction and mesne profits and the Hon'ble Court after referring to the judgement of Suraj Lamp (Supra), again reiterated that none of those documents confer valid title, however, the factors such as entering into an agreement to sell, payment of entire sale consideration and being out in possession by the transferor shows that the Respondent has de-facto possessory rights based on his part performance of the Agreement to Sell.

51. Thus, neither the GPA (revocable or irrevocable) nor the Agreement to Sell whether executed before or after the pronouncement of Suraj Lamp (supra) can be termed to be the documents which tend to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to or in immovable property and hence, these documents does not require compulsory registration under Section 17 of the Indian Registration Act, 1908. Needless to say that the Will relied upon by the plaintiff has no value since the defendant no.7 is still alive.

52. It was also one of the contention of the Ld. Counsel for the defendants that as per Section 32 and 33 of the Indian Registration Act, 1908 if on the basis of a General Power of Attorney, an agent present a document for registration, the GPA is necessarily required to be registered and thus, the GPA dated 23.07.1985 on the basis of which the defendant no.7 has executed the registered GPA dated 09.10.2006 in favour of the plaintiff was compulsorily registerable, however, the argument of the Ld. Counsel is not sustainable as the mandatory registration of the GPA is required by Section 33 of the Act, 1908 and not by Section 17 of the Act, 1908 and thus, the bar of Section 49 of the Act, 1908 does not apply.

53. Accordingly, the issue in question is decided against the defendants and in favour of the plaintiff.

Issue no. (i) (ii) & (iii)

(i) Whether the plaintiff is entitled for the decree of declaration that the plaintiff is the sole and absolute owner of the suit property? OPP

(ii) Whether the plaintiff is entitled for the decree of declaration of sale deed dated 17.03.2009 as null and void? ... OPP

(iii) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for?

... OPP

54. The above issues are taken up together being interconnected and finding on one issue has direct bearing on the other.

55. The onus to prove the above issues was on the plaintiff, even though while deciding the issue no. iv, this Court has already discussed that neither the set of documents dated 23.07.1985 nor dated 09.10.2006 by itself confer any ownership rights in favour of the plaintiff over the subject property and hence, she cannot be declared as absolute owner of the subject property on the basis of her incomplete title and as necessary corollary her relief to declare the impugned sale deed as null & void as well as the relief of permanent in junction automatically fails but apart from the above stated reason, the suit of the plaintiff also fails as the plaintiff has failed to prove the agreement to sell, GPA, affidavit and receipt all CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.28 dated 23.07.1985 alleged to be executed by the original owners in favour of defendant no.7 on the basis of which the second set of documents were executed in her favour by the defendant no. 7 and reasons for reaching such a conclusion are as under.

56. The defendants in their written statements have specifically denied the execution of any of the documents in favour of defendant no. 7 by the original owners. Thus, the burden of proof was on the plaintiff to first prove the documents all dated 23.07.1985 in the affirmative. Reference can be made to the judgment titled as Anil Rishi V/s Gurbaksh Singh, (2006) 5 SCC 558, wherein it was observed that:

"... The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act... In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. ... In terms of Section 102 [of the IEA] the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."

57. Moving further, the modes by which a document can be proved before the Court as per the provisions of Indian Evidence Act, 1872 has been preciously summed up by the Hon'ble High Court of Madhya Pradesh in judgment titled as L.S.Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, the CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.29 Hon'ble Court while examining the scope of different provisions of the Evidence Act has laid down the following modes for proving a document:

(a) by calling a person who signed or wrote a document;

(b) by calling a person in whose presence the documents are signed or written;

(c) by calling handwriting expert;

(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;

(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;

(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;

(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person,e.g. by the scribe who signed on behalf of the executant;

(h) by other circumstantial evidence.

58. However, the plaintiff except tendering all the four documents in her evidence as Ex. PW-1/1 to PW-1/4, has not adopted any of the modes as reiterated in L.S.Trading (Supra). She has not proved the signatures of any of the executors on those documents by calling any of the attesting witnesses of those documents in the witness box. It is observed the Ex. PW-1/1 to CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.30 PW-1/3 are notarized documents but even the notary public was not called in the witness box and further, Ex. PW-1/4 has been alleged to be duly got registered before the sub-registrar but no official was called to prove its registration. Pertinently, the plaintiff has not even taken necessary steps to examine any handwriting expert in order to prove the signatures of the original owners on the Ex. PW1/1 to Ex. PW1/4 and last but not the least even none of those documents were put to the defendant no.4 in his cross examination in order to confront him with the signatures of his late father or his two aunts (Bua) Smt. Ram Batheri and Smt. Phullo.

59. It was also one of the argument of the Ld. Counsel for the plaintiff that all the four documents were put to the defendant no. 7 during his cross examination and he admitted the execution of all those documents and thus, the said documents were duly stand proved from the testimony of defendant no. 7.

60. This Court has gone through the deposition of defendant no.7 and surprisingly, the defendant no.7 who entered the witness box as PW-5 in order to support the case of the plaintiff, has not relied upon any of those documents in his chief examination by way of evidence, rather those documents were put to him by the defendants during his cross-examination. However, after going through the entire cross-examination of defendant no.7, it is observed that nothing material has come on record which can show that those documents stands proved. Defendant no.7 in cross CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.31 examination has deposed that at the time of the execution of the documents, apart from him and the executants, his father and one Ram Kishan went to the office of sub-registrar Janakpuri and only Ram kishan was witness to the said documents and consideration receipt was got registered at the office of the sub-registrar, the said testimony of defendant no. 7 falls under the category of a self serving statement and thus, as already observed in the preceding paragraphs, once the plaintiff has not adopted any of the modes as mentioned in L.S.Trading (supra), it cannot be said that those documents stands proved.

61. Thus, this Court is of the considered view that Ex. PW-1/1 to Ex. PW-1/4 on the basis which the plaintiff is deriving/claiming her right on the subject property are not duly proved by the plaintiff in the affirmative by any of the modes as provided in the Indian Evidence Act, 1872, for the best reasons known to her especially under the circumstances that in order to prove her own set of documents which were executed by defendant no.7 in her favour on 09.10.2006 i.e. Ex. PW1/5 to Ex. PW1/10, she has not only called both the attesting witnesses but also produced the official from the office of sub-registrar IX, Kapashera.

62. As far as the claim of the plaintiff that the defendant No. 4 by way of Ex. PW1/13 written by him at the police station has duly admitted that the subject property was sold by the original owners to defendant No. 7 and now the same belongs to plaintiff and thus, CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.32 from the very admission of the defendant no.4 discharges the burden of proof casted on the plaintiff is concerned, it is observed that the said document was also tendered into evidence by the plaintiff and her deposition in cross examination that the document from point A to A1 and from point B to B1 is in the handwriting of defendant No.4 also falls under the category of self serving statement and thus, does not amount to proof. It is relevant to observe that the original of PW1/13 was put to the defendant No. 4 during his cross examination and the same was exhibited as Ex. DW2/P3 and he out rightly denied that the same is written and signed by him and surprisingly, once the defendant no. 4 denied his handwriting and signatures on Ex. PW-1/13 or Ex. DW2/P3, the plaintiff for the best reasons known to her never taken any steps to adopt any other mode to prove that the said document was in fact written and signed by the defendant No.4 on 27.01.2010.

63. It is also relevant to observe that in cross- examination, the specific question was put to the plaintiff that why she has mentioned in paragraph No. 5 of the evidence affidavit "that at that time, we all purchased this property in the name of Mr. Uma Shankar Kaushik"(Defendant No.7) and in answer to the said question, the plaintiff had deposed that her father-in-law told that this plot was purchased by them in the name of defendant No.7 and in another question, while confronting the plaintiff with the statement given by her in criminal complaint No. 41/1/07 i.e. Ex.

PW1/D-2 she categorically admitted that she has deposed that the subject property was purchased from the funds of the joint family wherein her husband was also contributing in the name of Uma Shankar and in 2006 she has purchased the property afresh in her name, whereas the defendant No. 7 in his cross examination has categorically deposed that the subject property was purchased by him personally in his individual capacity and not on behalf of the family and he himself paid the consideration amount of Rs 32,000/-. He also deposed that the husband of the plaintiff given him a loan to buy the property but he paid the same.

64. The above contradiction in the testimony of the plaintiff and the defendant No. 7 also raises clouds on the validity of Ex. PW1/1 to Ex. PW1/4.

65. It is also relevant to observe that by merely exhibiting a document in the evidence does not amount to proof as admittedly the exhibition or marking on a document is done only for the purpose of identification. Reference can be made to the judgment titled as Sudhir Engineering Company vs Nitco Roadways Ltd . 1995 IIAD Delhi 189.

66. Resultantly, when the plaintiff has failed to prove the very foundation of her claim, her suit fails. Accordingly, in view of the detailed discussion and observations made above, the issues in question are decided against the plaintiff and in favour of the defendants.

Issue No. v Whether the suit of the plaintiff is based on false averments and upon forged and fabricated GPA, Agreement to Sell, cash receipt etc., all dated 23.07.1985? ... OPD

67. Onus to prove the issue in question was on the defendants, however, they have not led any evidence before the Court to prove that the GPA, ATS, cash receipt etc all dated 23.07.1985 are forged and fabricated. Merely because the plaintiff has failed to prove these documents in the affirmative in her evidence does not raise an automatic inference that the documents are forged and fabricated by her or by defendant No.7. Accordingly, the issue is decided against the defendants and in favour of the plaintiff. Issue no. vi Whether the present suit is without any cause of action as alleged in the plaint? ... OPD

68. The onus to prove the issue in question was on the defendants. The term of the "cause of action" is not defined in the Civil Procedure Code but in catena of judgments, it is time and again held that cause of action means, those set of facts sufficient to justify suing to obtain money or property, or to justify the CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors Page No.35 enforcement of a legal right against another party. It is also mean "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court". This Court has already in detail discussed the case of the plaintiff. Thus, as per the pleadings of the plaintiff, it cannot be said that her suit was without any cause of action, but the plaintiff has failed to prove the necessary facts in order to establish her cause of action. Accordingly, the issue is decided in favour of the plaintiff and the against the defendants.

Relief:

69. On the basis of the issue-wise findings of this Court , the suit of the plaintiff is hereby dismissed. Parties to bear their own costs.

70. Decree sheet be drawn accordingly.

71. File be consigned to record room only after due completion and necessary action, as per Rules.

Pronounced in the open Court                         (Sachin Jain)
on 18.07.2023                                    Addl. District Judge-02
                                                  South West District
                                              Dwarka Courts Complex, Delhi




CS DJ ADJ No.516045/16 Anita Kaushik vs. Krishna & ors          Page No.36