Delhi District Court
Smt Lakshmi Devi (Also Referred As Laxmi ... vs Sh Gajinder Singh on 10 February, 2020
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
CS No. 612639/16
Smt Lakshmi Devi (also referred as Laxmi Devi)
W/o Sh Pratap Singh
R/o Village Kishan Garh,
Mehrauli, New Delhi
.........Plaintiff
Versus
1. Sh Gajinder Singh
S/o Late Prabhu Singh
R/o Village Kishan Garh
Mehrauli, New Delhi
2. Sh A S Gaur (deceased)
through LRs
a) Sh Rajeev Gaur
b) Sh Sanjeev Gaur
Both S/o Late Sh A S Gaur
R/o D-1419, Vasant Kunj
New Delhi-110070
c) Smt Bindu Bhardwaj
D/o Late Sh A S Gaur
R/o D-1/1267, Vasant Kunj
New Delhi-110070
d) Smt Dimple Gaur
D/o Late Sh A S Gaur
R/o D-1/1293, Vasant Kunj
New Delhi-110070
3. Sh Virender Tripathi
S/o Sh K P Tripathi
R/o E-6, Prahlad Vihar,
New Delhi ........ Defendants
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 1 / 45
Date of Institution: 27.05.1998
Reserved for Judgment: 23.12.2019
Date of Judgment: 10.02.2020
JUDGMENT
1. Plaintiff has filed suit for cancellation, declaration and permanent injunction.
2. It is the case of the plaintiff that she is Bhumidar in possession of land bearing khasra no. 43/12(3-17); 13(4-16); 14 (4-
16); 15(1-14); 17(3-19); 18(4-16); 19 (5-03); 23/1 (3 -08) and 43/28 (0-3) in all measuring 32 bighas and 12 biswas situated within the revenue estate of Ghuman Hera, Delhi, [hereinafter to called as "Suit Land"]
3. It is the case of the plaintiff that subject matter of the dispute pertains to the land comprising in Khasra no. 43/14 (4-16) and information was received that defendant no.1 has executed a sale deed in favour of defendant no.2 on 14.11.1996 purporting to be acted as General Attorney of plaintiff in respect of land comprising in Khasra no. 43/14 (4-16), [hereinafter to be called as "Land in Dispute"]
4. It is also averred that the power of attorney was registered in the office of Sub Registrar office on 19.07.1996 and sale deed being CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 2 / 45 document No.14619 in Addl Book No.1, Volume No. 8603 at page 9 to 17 was executed on 14.11.1996 by defendant no.1 in favour of defendant no.2 who was an Ex Tehsildar of Mahrauli Tehsil.
5. It is further averred that land bearing khasra no. 43/12( 3-
17); 13(4-16); 14 (4-16); 15(1-4); 17(3-19); 18(4-16); 19 (5-03); 23/1 (3 -08) and 43/28 (0-3) in all measuring 32 bighas and 12 biswas situated within the revenue estate of Ghuman Hera, Delhi was alienated by the defendant No. 1 through separate sale deed and in this respect plaintiff was advised to file separate suits in respect of portion of land as mentioned in suit land in different sale deed.
6. It is also averred that on the basis of the sale deed the defendant no 1 and 2 have got the mutation in respect of the land without the knowledge of plaintiff. Mutation entries in respect of different sale deeds were sanctioned on 13.01.1997. It is averred that plaintiff did not receive single penny as consideration from any of the defendants.
7. It is also stated that at no stage of time plaintiff had contemplated to sell/ alienate her land through the agency of defendant no 1 or anybody else and it was also averred that defendant no 1 was never appointed as power of attorney on behalf of plaintiff.
8. It is further averred that plaintiff came to know through her CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 3 / 45 husband in the last week of September 1997 that the land as referred above was sold by the defendant No. 1 in favour of defendant no. 2 and entries were also made in the revenue record.
9. It is also averred that when husband of plaintiff became aware about the factum of mutation, he(husband of plaintiff) inspected the relevant revenue record and informed the plaintiff that mutation order in respect of the land in question has been passed and after getting information with to mutation of "suit land", an appeal was filed in respect of grant of sanction of mutation, appeal was before Deputy Commissioner, Kapashera and same is still pending. The plaintiff was also advised to file a suit for declaration, cancellation of the deed of attorney and sale deed on the basis of which the name of the defendant no 2 stands substituted as Bhumidar of plaintiff's land as mentioned in para no. 1 of the plaint.
10. Suit has been filed to get the sale deed as null and void and for setting aside mutation order dated 13.01.1997 as null and void ab initio.
11. It is pleaded that plaintiff is a simple illiterate housewife and has nothing to do with the worldly affair and defendant no 1 was treated like a son being the younger brother of husband and she never had any intention to appoint Defendant No.1 as her power of attorney. It is also stated that the contents of General Power of Attorney (GPA) CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 4 / 45 were not explained to defendant no.1 as she is not conversant with the English and signature appearing on the document were procured under the impression as if she is filing an application for sanction of mutation in respect of suit land. It is also stated that plaintiff did not put her thumb mark on deed of attorney under the impression that she is putting the same on the application for sanction of mutation of her land purchased in April 1996.
12. It is also averred that plaintiff was deceived by defendant no 1 as regards to actual nature and contents of deed of attorney and therefore, the alleged deed of attorney executed by plaintiff in favour of defendant no 1 is nullity and not binding on the plaintiff.
13. It is also averred that defendant no 3 was impleaded as party to the suit on the ground as per the recitals in the sale deed is that plaintiff had entered into an agreement for sale with confirming party vide agreement to sell dated 24.07.1996 and the plaintiff has received a consideration of Rs 495000/-. It is also asserted that no agreement to sell was entered by plaintiff with defendant no 3 or anyone else. It is also averred that defendant no 3 is totally unknown to the plaintiff. Plaintiff has also casted doubt on the recitals made in the sale deed.
14. An objection was also raised by the plaintiff that mutation entry was wrongly made by Tehseeldar since no notice was served on the plaintiff and it was submitted that the entire proceedings were CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 5 / 45 done at the instance of defendant no 2 without inviting any objection on plaintiff.
15. It is also averred that proclamation was not made in terms of mandatory provision of Delhi Land Revenue Act. The plaintiff has also challenged the proclamation issued under the signature of Tehsildar on 27.12.1996.
16. It is further averred that plaintiff was totally kept in dark with regard to the mutation proceedings due to which she could not file her objection. It is also pleaded that the order of mutation was illegal, void and without jurisdiction and liable to be set aside and declared as null and void.
17. It is also stated that plaintiff is in possession of the land in dispute although name of defendant no 2 is recorded as Bhumidar in the column no. 3 of Khasra Girdawari. It is also averred that on the basis of wrong entries in the revenue record showing defendant no 2 in possession and defendant no.2 is threatening to take the possession of the plaintiff over the suit land.
18. The plaintiff on the basis of aforesaid facts prayed for cancellation of sale deed and also for declaring the mutation dated 13.01.1997 in respect of khasra no. 43/14 measuring 4 bighas 16 biswas in case no. 861/TNG/96-97 sanctioning mutation in the name CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 6 / 45 of defendant no 2 as not binding on the plaintiff and for declaration it be declared as null and void.
19. The plaintiff has also prayed for the decree of cancellation, of Sale Deed executed in favour of defendant no.2 by defendant no.1. Plaintiff also prayed for decree of permanent injunction for restraining defendant no 2 from creating third party right in respect of subject matter of dispute and for interfering in the peaceful possession of plaintiff.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.1
20. Defendant no.1 filed the Written Statement by taking number of preliminary objections that suit filed by plaintiff is not maintainable and same was filed with an intention to pressurize defendants and the suit filed by the plaintiff also does not conform to the requirements of Order 6 rule 4 CPC. It was also prayed that suit has not been valued properly for the purposes of court fees and jurisdiction.
21. On merits, defendant no 1 denied the averments as made in the plaint and contented that suit land including the land in dispute was sold for Rs 13.5 lakhs. It was denied that plaintiff did not execute power of attorney in favour of defendant no 1. It is also stated that confirming parties i.e. defendant no 3 and others entered into an CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 7 / 45 agreement with plaintiff through one Sh Mahinder Singh, S/o Bhagwan Singh, R/o H No 151, Village Nilothi who is the relative of plaintiff and answering defendant. It is also pleaded that plaintiff had executed General power of attorney in favour of answering defendant after receiving the entire consideration. The deed writer prepared General Power of Attorney (GPA) on the instructions of plaintiff and her husband Pratap Singh. It is also pleaded that the deed writer typed GPA on non judicial stamp paper and also explained the contents of GPA to the plaintiff in presence of her husband and the husband of plaintiff also read the contents of GPA. It is also averred that Mahinder Singh also asked plaintiff and her husband to execute a Will in favour of answering defendant and both plaintiff and her husband had agreed to execute the Will and all the above documents were presented before the Office of Sub Registrar after explaining the contents of GPA and Will to the plaintiff in the presence of her husband. It is also pleaded that actual and physical possession of land was handed over to defendant no 3 and other parties through defendant no 1 and Mahinder Singh.
22. It is also stated that entire transaction and mutation was in the complete knowledge of plaintiff since the beginning.
23. In para no. 4 of Written Statement, defence was taken that after execution and registration of sale deed in favour of defendant no. 2 by answering defendant no 1 as an attorney of plaintiff, the relation CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 8 / 45 in between defendant no 1 and husband of plaintiff were strained because of filing of the false cases by the husband of plaintiff. Allegations were also made that husband of plaintiff had filed false FIR against defendant no 1 in PS Najafgarh on the allegation that signature of husband of plaintiff was forged by defendant no 1 and upon the examination of the said documents it was revealed that signature were of the husband of plaintiff and allegations against defendant no 1 were false and bogus.
24. Defendant no 1 denied that plaintiff is the simple illiterate housewife and took a stand that she has been purchasing the illegal property since 1980 and appearing before various authorities including Sub Registrar for execution and registration of sale deeds of immoveable properties. It is also averred that plaintiff holds bank account in various banks and is undertaking monetary transaction for considerable length of time and thus can easily understand the wordly affairs. It is also averred that husband of plaintiff is a highly educated person and the son of plaintiff is major and both of them are undertaking the business of sale and purchase of property. Defendant No.1 also took an argumentative defence that if any fraud was committed by answering defendant then plaintiff would have very well exposed to her husband. The defendant No. 1 also denied the allegation that the thumb impression affixed on the General Power of Attorney(GPA) by the plaintiff by treating the same for the purposes of mutation. It is further submitted that after execution and registration CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 9 / 45 of sale deeds in favour of defendant no 2 by the answering defendant No.1 as an attorney of the plaintiff, some family dispute arose between husband of plaintiff and answering defendant No.1 sometime in the month of March 1997 due to which relations between the husband of plaintiff and the answering defendant became strained due to false and frivolous cases initiated by the husband of plaintiff against the answering defendant. Husband of plaintiff is a person of suspicious character and manipulator. It is also relevant hereto point out that the husband of plaintiff also lodged a false and frivolous FIR against the defendant No.1 at PS Najafgarh, Delhi alleging therein that the defendant no.1 had forged his signatures on the some papers to deprive him from property. On the orders of court, documents were examined by the expert and competent expert opined that the signature in documents were of husband of plaintiff and the complaint was found to be false and bogus. It was also pointed that in one of the civil suit, husband of plaintiff denied his signatures on registered documents and submitted that these instances clearly indicate the conduct and behaviour of the plaintiff's husband in making false and frivolous allegations. Plaintiff's allegation that she was not aware either he factum of execution of the power of attorney or the sale deed was denied. It was asserted that suit is filed by plaintiff under pressure, coercion and at the instance of her husband. The entire allegation in the plaint are false and frivolous and concocted even to the knowledge of the plaintiff and her husband.
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 10 / 4525. Contents of paragraph to that plaintiff is a simple illiterate housewife confined to her house and does not know much about the worldly affair were denied and it was pointed that the plaintiff has been purchasing the immoveable properties since 1980 onwards. The plaintiff many times appeared before the various authorities including Sub Registrar for the execution and registration of sale deed of the immoveable properties. The plaintiff has been maintaining her separate and independent bank account in various banks. The plaintiff is capable of doing the monetary transaction and can easily understand the worldly affairs. The plaintiff has been living with her husband who is a highly educated person and her elder son also major and doing the business of sale and purchase of properties. It is also contended that if any fraud was committed then she would have exposed it to her husband. The time gap between the execution and registration of power of attorney and the sale deed is about 4 months. It is further denied that the plaintiff had put her thumb mark on the deed of attorney under the impression that she is putting the same on the application for sanction of mutation of her land purchase by her in the month of April 1996. It is also contended that original vendors from whom the plaintiff purchased the property have executed special power of attorney for mutation.
26. It is also averred that contents of General Power of Attorney (GPA) were explained to plaintiff in Hindi and the said power of attorney was executed with free will and consent for executing a CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 11 / 45 registered sale deed in favour of confirming party or their nominee. It is contending that the answering defendant No. 1 has explained the each and every fact and circumstances and the manner in which the power of attorney was executed by the plaintiff in favour of defendant No.1 and it is further averred that amongst all the brothers, the husband of plaintiff is most qualified and literate person, and family members used to seek his advise on important family matters and he has been controlling the entire family affairs.
27. It is also averred that appeal against the mutation order is pending before Deputy Commissioner, South- West, Delhi and the entire allegation with regard to lapses was denied. It is also stated that mutation was sanctioned in accordance with law.
28. In response to the paragraph no.12 of the plaint to the effect that plaintiff is in possession of the suit property was denied by defendant no.1 and it was also stated that the averment in the plaint to the effect that Halka Patwari is not recording the name of plaintiff is incorrect as the amendment in Delhi Land Rules were quashed by Hon'ble Delhi High Court in the year 1995. Defendant no.1 prayed for the dismissal of the suit.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.2
29. Defendant No.2 filed the separate Written Statement in CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 12 / 45 which dismissal of the suit was prayed and it was contended that defendant no.2 is a bonafide purchaser against consideration and is having protection of law. It is also averred that the present suit is outcome of dispute in between defendant no.1 and plaintiff and suit is liable to be dismissed under Order 7 Rule 11 CPC. It is also averred that plaintiff has filed the suit to extract money and plaintiff was aware about the entire facts.
30. On merits, it is contended on behalf of defendant no.2 that entire Suit Land were sold by plaintiff and as such, defendant no.2 is the owner of the property. It is also stated that no other person except defendant no.2 has right and interest in the suit land. It was denied that there was any fraudulent execution of sale deed and it was also stated that sale deed was rightly executed and defendant no.2 is the bonafide purchaser against consideration. It is also stated that plaintiff is having knowledge that the property was sold by defendant no.1 to defendant no.2 on the basis of the General Power of Attorney executed by plaintiff. It is also averred that it is within the knowledge of plaintiff that when a property is sold then mutation would be granted in favour of the purchaser. It is also stated that registered document on record establishes that land in dispute was sold against consideration. The assertion of non payment of consideration was denied. It was denied that plaintiff never had an intention of selling or alienating the land through agency of defendant no.1 or anybody else as asserted in the plaint. Defendant no.2 also stated that plaintiff has appeared before CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 13 / 45 Sub-Registrar at the execution of the power of attorney and therefore as per Section 114 of the Indian Evidence Act, presumption is raised that an official acts are rightly and correctly done. Defendant no.2 also questioned the knowledge of plaintiff that she became aware about the sale of property in the last week of September 1997 as plaintiff was aware about the sale of agricultural land since inception. It was denied that plaintiff came to know about the execution of General power of attorney and sale deed through her husband and on the contrary, it was asserted that plaintiff is having the complete knowledge of the same. It is also stated that mutation was correctly sanctioned in favour of defendant and also averred that mutation is only a formality and same is basically required for the purposes of collecting the land revenue. It is also stated that right and title in favour of a person comes through a registered instrument/ document and all rights in respect of the property came to be possessed by defendant No.2 on the basis of registered sale deed and therefore, question of filing an appeal before Deputy Collector against mutation when there is an existence of sale deed. Defendant also stated that plaintiff has played fraud with the process of Court and has cheated and manipulated all facts to suit her own convenience. It was vehemently denied that defendant is a illiterate housewife or she is not much aware about the worldly affairs. It was denied that plaintiff put a thumb mark on Genenal Power of Attorney attorney construing the same to be an application for sanction of mutation of land purchased in the month of April 1996 by demonstrating that plaintiff has moved CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 14 / 45 separate application before Tehsildar for mutation of land in her favour and application for mutation was moved in the month of September 1996 whereas power of attorney was registered on 19.07.1996. It is also stated that the application for mutation before Tehsildar bear her signature. It was also pointed out that plaintiff had taken contradictory stand as on the one hand, she is claiming herself to be an illiterate lady whereas she is putting signature on various documents. Defendant has also pointed out various transactions which were carried out by plaintiff i.e. (i) operating number of accounts by using her signature (ii) for last 18-20 years, plaintiff has entered into number of transaction which are in Crores of Rupees. It is also possible that she has been filing her return before Income Tax authority to show the income which she could have earned and therefore, assertion of the plaintiff that she is a simpleton and illiterate cannot be believed.
31. It is also stated that plaintiff also used to issue cheque books. It was also pointed out that it is well known fact that Sub-Registrar office at INA deals with the registration of documents and has no concern with the mutation and mutation is only done by a Tehsildar and plaintiff has been conducting sale and purchase of properties for last 20 years and therefore, it is quite logical that she would have appeared before various authorities such as Tehsildar. It is also stated that the entire proceedings/present suit is filed at the behest of husband of plaintiff who is using the plaintiff and furthermore family CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 15 / 45 of plaintiff is engaged in the business of property for number of years and due to which plaintiff is operating number of bank account and therefore, she is having the knowledge of the transaction. Defendant is denied the averment that since plaintiff is not aware about the English language and so she is not aware about its contents and in this regard, it was stated in the Written Statement that documents before office of Sub-Registrar are drafted in English language and plaintiff has been purchasing land on the basis of the documents written in English language. It was also pleaded that things which are done before the office of Sub-registrar is deemed to be done in accordance with law. Allegations with regard to the process of execution of power of attorney questioned by plaintiff were denied and it was stated that plaintiff has narrated things as per her own convenience. It was denied that there was collusion in between defendant no.1, 2 and 3. It was asserted that defendant has purchased the property in proper manner. Assertion with regard to denial of signing of agreement to sell dated 24.07.1996 with defendant no.3 was strongly rebutted by defendant. Plaintiff has also stated that both registering authority and revenue authority have conducted the proceeding wherein name of defendant no.2 was recorded as owner of the property. Defendant denied that plaintiff was not aware about the mutation proceedings. It is averred that since plaintiff is in possession of the property so, his name is rightly reflected in the Khasra Giridawari.
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 16 / 45WRITTEN STATEMENT FILED ON BEHALF OF DEFENDANT NO. 3
32. It is averred that suit filed by plaintiff is not maintainable as allegations are false and defamatory. Material Facts were concealed by plaintiff in the plaint.
33. On merits, Defendant No. 3 denied the assertion made in the plaint and averred that "Suit Land" was sold by plaintiff through her attorney. It is also averred that defendant No. 2 is in possession of land. It is also stated that defendant no 3 is associated with one Sh Mahinder Singh who is in the business of sale and purchase of immovable property and defendant no. 3 has authorised Mahinder Singh negotiate with plaintiff and her husband for purchase of suit land. It is also averred that consideration was paid to the plaintiff through Mahinder Singh and after receipt of full and final consideration, plaintiff executed agreement to sell to show it prospective buyer and it is after execution of agreement to sell the answering defendant had purchased the land in question from plaintiff. It is also stated that plaintiff has executed General Power of Attorney in favour of defendant no 1 to execute sale deed in favour of defendant no 3 or its nominee.
34. Remaining allegations made in the plaint were denied and it was asserted that plaintiff is aware about the entire transaction since CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 17 / 45 inception and present suit is basically an outcome of the family dispute in between the husband of plaintiff and defendant No. 1 and other assertions were made in written statement which are in line with the stand taken in the Written Statement filed on behalf of Defendant No.1. In Written Statement, it is further averred that plaintiff has voluntarily entered in the transaction. Prayer Clauses as made in the plaint were denied and it is stated that plaintiff is not entitled for the relief.
35. Plaintiff filed replication to the Written Statement wherein the contents of written statement were denied and those of plaint were reiterated. In replication to the written statement of Defendant No.1, Plaintiff denied that defendant no.3 and others entered into an agreement with plaintiff through Mahinder Singh son of Sh Bhagwan Singh, R/o Village Nilothi. Plaintiff denied that any agreement to sell was executed in between the parties and plaintiff also denied that there was any negotiation in respect of the sale of 32 bighas and 12 biswa. It was reiterated that no consideration was received by plaintiff and further averments in the replication are basically reiteration of the stand taken in the plaint.
36. Replication filed on behalf of plaintiff to the written statement of defendant no 2 is reiteration of stand taken in the plaint. It was denied that there was no action in favour of plaintiff. Plaintiff asserted that she did not execute the Power of Attorney and never CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 18 / 45 appointed Defendant No.1 as Power of Attorney and defendant no.1 was younger brother of husband of plaintiff and various other allegations were made in the Replication and contents of written Statement were denied.
37. Plaintiff filed replication to the Written Statement of Defendant No.3 wherein the contents of written statement were denied and those of plaint were reiterated and stand taken in replication is on same line as that of plaint and it is on the same lines with the stand taken in replication of defendant no.1 and 2.
Miscellaneous proceedings:-
38. Application for amendment dated 22.08.2003, wherein prayer for relief of cancellation of GPA dated 19.07.1996 was dropped and application for amendment was allowed vide order dated 22.12.2003. Pursuant thereto, amended plaint was filed by plaint.
Thereafter, at the stage of final arguments, application under Order 6 Rule 17 CPC was filed on behalf of plaintiff in which amendment was sought in the plaint by which prayer for cancellation of GPA dated 19.07.1996 was prayed, however said application for amendment was dismissed by a detailed order on 01.08.2019. During the pendency of the suit, defendant no.2 expired and his legal heirs were substituted on 20.12.2016. Order of Substitution of LRs of defendant as upheld in CM (M) No.28717 vide order dated CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 19 / 45 14.03.2017 by Hon'ble High Court of Delhi Issues
39. Upon completion of pleadings, vide order dated 18.09.2017, following issues were framed:-
Issue no.1:- Whether the plaintiff is entitled for declaration thus declaring the sale deed dated 14.11.1996 in favour of defendant no.2 ? OPP Issue no.2:- Whether GPA dated 19.07.1996 has been executed by plaintiff in favour of defendant no.1 ? OPD-1 Issue no.3:- Whether any sale consideration qua sale deed dt 14.11.1996 has been paid by defendant no.3 to the plaintiff ? OPD-3 Issue no.4:- Whether the suit is not maintainable as per provision of Order 6 Rule 4 CPC ? OPD Issue no.5:- Whether the suit has been filed without cause of action? OPD Issue no.6:- Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD Issue no.7:- Relief.
40. In support of her case, plaintiff examined herself as PW-1 by way of affidavit Ex.PW1/A. She relied upon Ex PW-1/1 and Ex.PW1/2 in her evidence by way of affidavit and same was not CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 20 / 45 marked. However, the copy of GPA and Sale deed was admitted on behalf of defendant no.1.(Therefore, General Power of Attorney dated 19.07.1996 is referred as Ex PW-1/1 and Sale Deed dated 14.11.1996 is referred as Ex PW-1/2.) Plaintiff also examined PW-2 Narender Kumar Kanoongo, Record Room, South-West, Najafgarh who has brought the certified copy of register O-6 and O-2 which are Ex.PW2/A and Ex.PW2/B. PW-3 Sh Rajesh Sharma, Patwari, SDM office Kapashera, Disrict South-West has brought the record of Khatoni in the name of plaintiff, same is Ex.PW3/1.
PW-4 Sh Anchint Kumar Bibhanshu, LDC, Gr IV, Reader to DC, South-West has brought the summoned record ie file M No. 861/TNG/96-97 titled as A S Gaur and Laxmi Devi and file M No.857/TNG/96-97 with appeal file bearing no.561/97 titled as Laxmi Devi Vs. A S Gaur, photocopy of the same are Ex.PW4/1 to Ex.PW4/3 respectively (OSR).
Vide order dated 12.12.2017, PE was closed.
41. Evidence on behalf of defendant no.1 and 3 In support of the case, defendant examined DW1 Smt Sarita Gautam, O/o Sub Registrar INA, Vikas Sadan, New Delhi DW3 Sh Sevaji, Record Attendant, Govt of NCT Delhi, Department of Delhi was examined who has brought the original summoned record I.e sale deed dated 10.01.1986 executed by Jamana Das in favour of Smt Laxmi Devi W/o Sh Pratap Singh in respect of CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 21 / 45 the land bearing khasra no 23/15/3, 24/10, 11of Village Mehrauli registered document no 230 Book No 1, Vol No 5406 pages 138 registered (b) Sale deed dated 16.05.1985 executed by Sh Rattan Singh in favour of Laxmi Devi W/o Sh Pratap Singh in respect of the land bearing khasra no 23/16/2, 17, 18/1 of Village Mehrauli, new Delhi registered document No 3611 , Book No. 1, Volume no 5266 pages 189 to 192 registered on 16.05.1985 (c) Sale deed dated 19.11.1995 registered document No 9562 , Book No. 1, Volume no 8943 pages 59-67 registered on 09.11.1995. (d) Sale deed dated 19.11.1995 registered document No 9550 , Book No. 1, Volume no 8942 pages 152-160 registered on 09.11.1995 (e) Sale deed dated 19.11.1995 registered document No 9522 , Book No. 1, Volume no 8944 pages 131-137 registered on 09.11.1995, copy of same are Ex.DW3/1 to Ex.DW3/5.
DW4 Sh Mahender Singh was examined by way of affidavit Ex.DW4/A. DW5 Sh Gajender Singh was also examined by way of affidavit Ex.DW5/A and rely upon documents mark A to mark F however documents mark C already exhibited as EX.DW3/4, mark D already exhibited as Ex.DW3/4 and mark E already exhibited as Ex.DW3/5.
DW-6 Sh Shashank Yadav, Customer Assistant SBI,Vasant Kunj Branch, Delhi who has brought the certified copy of bank opening form of Smt Laxmi Devi bearing old /ac no. 9501, same is Ex.DW6/1.
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 22 / 45DW-7 Sh Arvind Chopra, Tehsildar, SDM office, Saket has brought the case file no. 576/8687 and certified copy of same is Ex.DW7/1 and mutation application is at page no.07 (OSR) Defendant Evidence was closed on behalf of defendant no.1 and 3 was closed on 10.05.2018.
42. Evidence on behalf of defendant no.2 On behalf of defendant no.2, D2W1 Sh Sanjay Kumar Gaur was examined by way of affidavit Ex.D2W1/A and relied upon copy of four sale deeds all dated 09.04.1996 executed by earlier owner in favour of plaintiff Laxmi Devi, same are Ex.DW2/1 (Colly, 16 pages).
DE on behalf of defendant no.2 was closed vide order dated 24.05.2018.
43. I have heard Ld counsel for the defendants and perused the written submission filed on behalf of defendants. Despite several opportunities, plaintiff did not advance any arguments.
Ld Counsel for defendant no 1 and 3 has relied upon judgments which are as : 1. Fateh Singh vs Raj Karan & Ors LPA No. 272/2011, 2. Kishan Khandare Vs Kausalyabai & Ors (2007)3 Civ CC 798, 3. Iqbal Ahlmad Vs Naimul in Appeal no. 230/1987 dated 02.04.2004, 4. Shivdas Loknathsingh and ors vs Gayabai Shankar Surwases (1993)MhLj 1623 dated 14.02.1992, 5. Bapu and anr vs Lakhha Banjara Deceased through LR's (2005)30AIC CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 23 / 45 934 dated 13.12.2004, 6. Kanwarani Madna Vati and anr vs Raghunath Singh and ors AIR 1976 HP41 dated 07.10.1975, 7. Koli & ors vs Piru Ram and anr AIR 2008(NOC)808(HP) dated 05.10.2007, 8. Dinesh Chandra Guha vs Satchidananda Mukherji and ors AIR 1972 ORISSA 235 dated 20.02.1968, 9. Ishwar Dass Jain (Dead) Through LR's Vs Sohan Lal (dead) by LR's (2001)1SCC434 ,
10. Purendra Shekhar Bhattacharya and anr vs Rajender Kumaryadav and ors (2012)90ALR370 dated 29.04.2011, 11. Ram Saran and anr vs Smt Ganga Devi (1973)2SCC60.
44. Ld counsel for Ld counsel for defendant no 2 has relied upon the judgments which are as: 1.Vimal Chand Ghevas Chand Jain & Ors vs Ramkant Eknath Jadoo (2009)5SCC713, 2. Krishi Utpadan Mandi Samiti Sahaswan, District Badaun vs Bipin Kumar and Anr (2004)2SCC 283, 3. Karan Madan and ors vs Nageshwar Pandey 2009(2014)DLT241, 4. Devender Kumar Bhardwaj vs Yogesh Chander Bhardwaj 2013 Law Suit(Del)4130 CS No 584/13, 5. Ramaswamy by LR's vbs M. Lobo through LR's (2001)10SCC176, 6. Anayathulla and ors vs Commissioner of Muslim Wakf of Jammu 1991 Supplement (1) SCC396, 7. Asokan vs Lakshmi Kutty and ors (2007)13 SCC 210, 8. Nanjappan vs Ramsamy and anr (2015)14 SCC 341.
45. My issuewise finding is as hereunder:-
Issue no.2:- Whether GPA dated 19.07.1996 has been executed CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 24 / 45 by plaintiff in favour of defendant no.1 ? OPD-1 and Issue No. 4:- Whether the suit is not maintainable as per provision of Order 6 Rule 4 CPC? OPD Both these issues are interconnected with each other and are being taken up together for the purpose of discussion as it requires appreciation of common facts, evidence and grounds.
Before appreciating the deposition of the plaintiff/ PW-1, it would be appropriate to take note of relevant provisions and judgments on the subject on which cancellation and other allied reliefs are being prayed by the plaintiff. Cancellation of documents i.e. General Power of Attorney and Sale Deed are sought on the ground of fraud or misrepresentation and objections raised on behalf of the defendants stating in plaint factum of fraud and misrepresentation are to be stated with sufficient clarity failing which the suit would not be maintainable.
46. Order VI Rule 4 of CPC provides that where plaintiff pleads misrepresentation, fraud, breach of trust, wilful default or undue influence and any of other cases in which particulars may be necessary beyond such as are exemplified in the aforesaid forms, particulars shall be stated in the pleadings.
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 25 / 4547. In Ranganayakamma and another Vs. K.S. Prakash (dead) by LRs. and others; (2008) 15 Supreme Court Cases 673, the Supreme Court after referring to the provisions contained in Order VI Rule 4 of the CPC held that when a fraud is alleged, the particulars thereof are required to be pleaded. It was observed that when a contract is said to be voidable by reason of any coercion, misrepresentation or fraud, the particulars thereof are required to be pleaded.
48. In Ramesh B. Desai Vs. Bipin Vadilal Mehta; (2006) 5 SCC 638, it was observed that Order VI Rule 4 of CPC requires that complete particulars of fraud shall be stated in the pleadings.
49. Section 17 of Contract Act, 1872 defines fraud and in order to make out a case on the ground of fraud, following ingredients have to be satisfied:
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
50. In light of the above judgments, Order VI rule 4 CPC and also taking note of Section 17 of Contract Act,1872 case of the CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 26 / 45 plaintiff is required to be appreciated. Case of plaintiff as per plaint and her deposition is to the effect that General Power of Attorney vide Ex.PW-1/1and sale deed Ex. PW-1/2 were executed in fraudulent manner. It is also deposed by plaintiff that she put her thumb impression on the alleged deed of attorney under the impression that same was required for application of sanction which was purchased in April, 1996 and plaintiff at no point of time had any intention to dispose of the suit land. At this stage, it would be relevant to note that in the present case, plaintiff has challenged one of the sale deed out of the seven sale deed executed by her power of attorney Gajender Singh in favour of Defendant No. 2
51. Perusal of cross-examination would reveal that it was admitted by the plaintiff that she used to purchase properties and properties purchased by plaintiff were sold to some other persons. Plaintiff also deposed that defendant no.1/ Gajender Singh used to transact on behalf of the plaintiff. It is also relevant to mention that in the cross-examination, plaintiff neither admitted nor denied the suggestion that she was residing separately since 1981 from Gajender Singh(Defendant No.1). Plaintiff also admitted in the cross- examination that Gajender Singh and husband of plaintiff were engaged in doing the business of Brick Kiln.
52. During Cross Examination, Plaintiff was confronted with two sale deeds i.e Ex.PW1/D1 and Ex.PW1/D2 and was asked CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 27 / 45 whether she had executed the sale deed however, she did not answer the question on the ground that she is illiterate and can not say anything with regard to the sale deeds. In the cross-examination, plaintiff was also confronted with Ex.PW1/D3 (Colly) i.e. certified copy of application of mutation dated 22.01.1996, application for mutation dated 03.07.1985 and application for mutation dated 14.09.1986 and it was put to the witness as to whether same bears her signature, to which the plaintiff has answered that she cannot say whether application bears her signature however, it was admitted by Plaintiff that she used to go for sale and purchase of property and used to act as per the advice of her family members. Plaintiff also admitted that she also maintains number of bank accounts, later on, it was stated that she did not have any bank account. During cross- examination, it was stated by the witness that negotiation of the property at the time of purchase was done by her husband and she was accompanied by her husband when sale deed was executed in her favour. (Sale Deed vide Ex PW-1/D-1 and Ex PW-1/D2)
53. In her cross-examination, plaintiff was confronted with two certified copies of mutation application dated 7.09.1996 vide Ex.PW1/D5 and Ex.PW1/D6 and was asked whether she had applied for mutation through above applications i.e. Ex PW-1/D5 & Ex PW- 1/D6 to which plaintiff replied that she did not remember whether she had applied for mutation of property through above referred applications and upon further probing, Plaintiff refused to say CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 28 / 45 anything whether signature at point A belongs to her or not. Plaintiff denied that she visited revenue authorities while moving application for mutation vide Ex.PW1/D5 and Ex.PW1/D6.
54. PW-1 denied the suggestion that she handed over any original sale deed executed vide Ex DW-2/1 Colly i.e four sale deeds to Mahender Singh. PW-1 also denied the suggestion that she and confirming party had met through Mahender Singh for the purchase of suit land. It is also admitted by witness that in the year 1996, the family of plaintiff and defendant No. 1 were having good relationship. Witness feigned ignorance about the original Sale deed of the suit land and also deposed that she is not aware about the whereabouts of sale deed (Ex DW2/1Colly (four sale deeds) PW-1 also replied that she is not aware whether sale deeds pertaining to the suit land are with defendant no.2. PW-1/Plaintiff also denied the suggestion that at the time of execution of General Power of Attorney(GPA) vide Ex PW- 1/1, her husband was also present and also denied that when GPA( Ex PW-1) was prepared, Mahender Singh had insisted her and her husband to execute a Will in favour of defendant no.1, whereupon plaintiff and her husband agreed to execute a Will with regard to land in question, in favour of defendant no.1. PW-1 also answered that she is not aware that GPA and Will were registered in the office of Sub- Registrar.
55. PW-1/Plaintiff admitted that no police complaint or any CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 29 / 45 criminal complaint was registered against defendant no.1 in respect of GPA and sale deeds executed in favour of defendant no.2. PW-1 did not answer the question that revenue record records the name of defendant No. 2 as owner of the property. In the year 1996 Gajender Singh took her for mutation of the property and subsequently it came to her knowledge that the property in question/Suit Land was transferred in favour of defendant no.2 and on being cross examined further with regard to put thumb impression on GPA for the purposes of sale of the property in question, it was answered by the plaintiff that same was for the purpose of mutation of the property in question. PW- 1 feigned ignorance as to who advised her to file appeal and separate civil suits on the basis of documents and she even cannot tell the name of counsel and answered that her answer the question with regard to facts stated in paragraph 6 of affidavit.
56. Reading of the deposition of PW-1 would show that it was stated that fraud was played on her and power of attorney was forged on the basis of which the sale deed was executed on 14.11.1996. It is also stated at no point of time, plaintiff had any intention to appoint defendant no.1 as her attorney and the plaintiff had put her thumb impression on the deed of attorney believing it to be a document required for application of sanction of mutation of the land purchased in April 1996. PW-1 deposed that that she did not put her thumb mark on the GPA but on the application for mutation only. Statement of plaintiff in this regard is contradictory as on one hand, plaintiff CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 30 / 45 asserts that she did not put any thumb impression on GPA whereas in her deposition PW-1 stated that she put thumb mark on the GPA believing it to a document required for the purpose of application for mutation.
57. Testimony of plaintiff is required to be considered by taking note of the fact whether any fraud or misrepresentation was played on her by defendant no.1 as alleged. In order to plead a fraud or misrepresentation, there has to be specific pleading about the nature of fraud or misrepresentation being played on the party. There is no averment or any evidence to the effect that defendant no.1 had induced the plaintiff to sign on the General Power of Attorney and what is being by deposed by the plaintiff is that she signed on the General Power of Attorney thinking it to be an application for mutation and at some other part, and denied that she put her thumb impression mark on the General Power of Attorney. In order to bring the case within the compass of fraud or misrepresentation, specific facts have to be pleaded and merely on the bald averment that fraud or misrepresentation was played. It is also not the case of plaintiff that defendant no.1 had asked the plaintiff to sign on the General Power of Attorney or there is a clear inducement to the effect that General Power of Attorney is to be executed in favour of defendant no.1. There is a total silence on the part of plaintiff whether she was misled or otherwise in executing GPA dated 19.07.1996 by defendant no.1. Neither in plaint nor in her deposition, it has not been indicated as to CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 31 / 45 what fraud or misrepresentation was played and simply on the basis of the fact that plaintiff has signed/put her thumb impression on the General Power of Attorney believing it to be the application for mutation cannot be believed as plea is too broad based and general to be acted upon.
58. In this regard it would be relevant to note that during cross-examination of plaintiff, the plaintiff was confronted with sale deed, Ex PW1/D1 and Ex PW1/D2 to rebut the plea of plaintiff to the effect that she is not aware about the execution of General Power of Attorney(Ex PW-1/1) and by way of Ex.PW1/D1 and Ex.PW1/D2, it is being established on behalf of defendants that plaintiff is engaged in property transaction and further she used to appear in the office of Sub Registrar and therefore, her plea that she merely signed on General Power of attorney cannot be believed. Objection with regard to the mode of proof of sale deed Ex PW1/D1 and PW1/D2 was raised on behalf of plaintiff. In my opinion, if one appreciates the certified copy of sale deed vide Ex PW1/D1 and PW1/D2 and the question that has been put to the witness would indicate that the only object of putting this document in cross-examination was to show that witness had previous experience of visiting office of Sub Registrar and therefore, objection with regard to mode of proof of EX PW1/D1 and PW1/D2 is rejected. Perusal of copy of both the sale deeds vide Ex.PW1/D1 and Ex.PW1/D2 shows that in both these transaction plaintiff was seller and therefore, on this basis one can say it with certitude that plaintiff CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 32 / 45 used to appear in the office of Sub Registrar and Plaintiff/ PW-1 had prior experience/ awareness in respect of the place visited by her and it can be safely said that she was aware about the Office Sub Registrar and furthermore Ex.PW1/D3 also establishes that that plaintiff has filed an application for mutation before concerned Revenue Authority. Thus, there is distinct separation of both the authorities that office of Sub Registrar and place where mutation entries are recorded. It is also to be noted that defendants have also placed on record four sale deeds vide Ex.DW2/1 (colly) and same shows that plaintiff was buyer and thus has experience and awareness with regard to work being undertaken in the office of Sub-Registrar.
59. Furthermore, at this stage it would also be proper to appreciate testimony of defendant no.1, who has been examined as DW-5. Perusal of the testimony of DW-5 i.e defendant no.1 would reveal that in his deposition the defendant no.1 with sufficient clarity has stated as to how General Power of Attorney(Ex PW-1/1) was executed in his favour by Laxmi Devi (Plaintiff). DW-5 deposed that the General Power of Attorney was prepared on the instruction of plaintiff and her husband. Deed writer had explained contents of General Power of Attorney to the plaintiff and husband of plaintiff also went through the General Power of Attorney. It was also deposed by him that Mahender Singh also asked plaintiff and her husband to execute a Will and in this respect, both General Power of Attorney and Will were also executed and Defendant No. 1 also deposed that CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 33 / 45 contents of documents were also explained by Sub-registrar to plaintiff and her husband and thereafter, the possession of the land was handed over to the confirming parties and Mahender Singh. It was also deposed by this witness that it is only after the receipt of entire consideration, General Power of Attorney dated 19.07.1996 was executed in favour of defendant and it is only thereafter, sale deed was executed and not a single penny was received by Defendant no1. Defendant No.1 also deposed that due to some family dispute, false and frivolous cases were filed against him by the husband of plaintiff. Various other allegations were also made. Defendant/DW-5 also brought up the reference of few sale deeds in which plaintiff had appeared either as seller or buyer and plaintiff was also maintaining the bank account.
60. Glimpse of Cross-examination of DW-5/Defendant No.1 would reflect that there is no cross-examination to the effect that contents of documents i.e General Power of Attorney were not explained by deed writer and furthermore, not a single question has been put to Defendant No. 1 that Sub-Registrar did not explain the contents of General Power of Attorney. At this stage it is to be noted that both in Written Statement as well as in the deposition of DW- 5/defendant no.1 was to the effect that husband of plaintiff was present all through the transaction. Assertion on behalf of defendant with regard to the presence of husband of plaintiff at the time of execution of General Power of Attorney vide Ex.PW1/1 was never seriously CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 34 / 45 challenged by plaintiff and furthermore, in the cross-examination of plaintiff, the suggestion with regard to the presence of husband of plaintiff was put to the plaintiff and yet in the cross-examination of defendant, no efforts were made to demolish the presence of husband of plaintiff. Testimony of defendant no.1/DW-5 had remained unrebutted and unchallenged with regard to the fact that Deed Writer had explained the facts to plaintiff and Sub-Registrar at the time of execution of General power of Attorney had inquired from the plaintiff about General power of attorney.
61. DW-4 i.e. Mahender Singh was also examined on behalf of defendant and he deposed that he met plaintiff at her house where some payments were made to plaintiff. It was also agreed that both plaintiff and her husband would execute GPA (Ex.PW1/1) in favour of Gajender Singh as both plaintiff and her husband used to assign their work to Gajender Singh.
62. Moreover as per the case as set out in the plaint by the plaintiff that defendant no.1 had played fraud on her but attending circumstance would establish that plaintiff has maintained total silence on the alleged discovery of fraud by not reporting to the police or to any other authority and plaintiff also chose to remain silent for a considerable length of time. It is also a matter of record that plaintiff had asserted the knowledge with regard to the execution of the General Power of Attorney and sale deed through her husband CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 35 / 45 however, husband of plaintiff was never examined as witness in the present case.
63. Insufficiency of facts pleaded in the plaint is exemplified from the facts that case of plaintiff was that she was stung by fraud perpetrated on her by defendants when she became aware of the fact that sale deed was executed by Defendant No.1 in favour of Defendant No.2 through her husband. Now if husband became aware of the execution of sale deed, then he would have certainly made an inquiry as to how plaintiff had executed General Power of Attorney(GPA/vide Ex PW-1/1. Plaintiff did not explain any surrounding circumstances leading to thumb impression appearing in General Power of Attorney in her plaint and in her evidence. PW-1 is totally silent as to how defendant no.1 procured her signature that is at which place and at what time. Plaintiff/PW-1 did not even utter a single word whether she had visited the office of Sub-Registrar on 19.07.1996. It has also not been explained by plaintiff either in the plaint or in the evidence to the effect whether defendant no.1 i.e her brother-in-law had taken her signature on some other documents and whether signature was procured in the absence of her husband and whether she disclosed the said facts to her husband or to other family members. It is also relevant to note that even other family members were not examined in reference to the fact to establish the relationship between plaintiff and defendant no.1 and the influence asserted by him. It would be a very natural reaction, for a lady who asserts herself to be not knowing CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 36 / 45 much about the worldly affairs by communicating it to her husband or other members of the family that some documents were taken for signature/ thumb impression was taken by defendant no.1/brother-in- law of plaintiff. There is complete silence on these material aspects to consider whether any fraud was played on plaintiff, both in plaint and her evidence. This conduct of plaintiff is difficult to believe that she was not aware as to on what documents she had signed or put her thumb impression.
64. Taking of thumb impression in General Power of Attorney is not that simple that one is writing a letter or signing a cheque but an act which involves the public authority. The thumb impression appearing on General Power of Attorney shows that the thumb impression not only on the last page of General Power of Attorney but on all pages and even before the office of Sub-Registrar and plaintiff must have also put her thumb impression on the registers as maintained in the office of Sub-Registrar. This exercise requires a complete attention on the part of the maker of the document i.e a person has to visit the office of the Sub-Registrar and to take various action and it is also corroborated from the testimony of DW-5 that plaintiff visited the office of Sub-Registrar where contents of General Power of Attorney was explained to her. Given the load and the amount of work that is being taken in the office of Sub-Registrar it can be safely said that plaintiff might have spent some time in the office of Sub-Registrar. Section 60 (2) of Indian Registration Act, 1908, CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 37 / 45 provides that certificate of Registration shall be admissible for proving that document has been registered in the manner required under law. Section 60 of Registration Act, 1908 is an extension of mandate as provided under section 114 of Indian Evidence that officials act are performed in regular and legitimate manner. It is also testament to the fact that endorsement as referred in section 59 of Registration Act, 1908 has occurred in the manner in which it has been mentioned. Hence, primacy is given to the endorsement made by Registering Authority and as discussed above, plaintiff both in her plaint and also in evidence did not speak anything as to what had happened in the office of Registrar, there is a complete silence on this account by the plaintiff and same establishes to hilt the case of defendants that General Power of Attorney was executed in proper manner . ( Reference can be had to the judgment of Ishwar Dass Jain( Dead) Through LrS Vs Sohan Lal ( Dead) SCC 434 vide Paragraph 27 of the judgment that there is a presumption of correctness as relied by Counsel for defendant).
65. It sounds quite unbelievable that the husband of plaintiff would not be having any knowledge about the same. It defies logic that a husband would make an enquiry that sale deed in respect of the suit property was executed but would not know that on 19.07.1996 the husband of plaintiff was not aware as to whether the plaintiff had executed any General Power of attorney in favour of defendant no.1. It is also not the case of plaintiff that because of the control of her CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 38 / 45 husband or due to the pressure of her husband, she did not use to disclose the facts to him. This conduct of plaintiff is quite improbable to be believed upon.
66. In plaint, there is a single line averment to the effect that GPA and Sale Deed were executed in connivance with the officials of Registering Authority, however in the deposition no such facts were deposed and even due execution and registering process was not seriously challenged by the plaintiff and hence, it fortifies presumption of due execution of documents.
67. Although issue with regard to General Power of Attorney was framed, however, perusal of records would indicate that plaintiff has dropped prayer for cancellation of General Power of Attorney and in the absence of the prayer for cancellation of General Power of attorney vide Ex.PW1/1, this issue is required to be decided against the plaintiff and in favour of defendants. Reference can be had to the judgment of Dharamvir and ors vs Ved Singh (Deceased) RSA no. 20/09 dated 30.05.2011.
68. As noted earlier that in order to plead a fraud, the plaint need to disclose the material averments by giving the complete particulars as to how fraud was played. The aforementioned discussion and the analysis of plaint would also show that in strict sense, plaint does not conform to the requirement as provided in Order CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 39 / 45 VI Rule 4 CPC.
In view of the above mentioned discussion, Issue No.2 and 4 are decided against the plaintiff and in favour defendants.
69. Issue no.1:- Whether the plaintiff is entitled for declaration thus declaring the sale deed dated 14.11.1996 in favour of defendant no.2 ? OPP AND Issue no.3:- Whether any sale consideration qua sale deed dt 14.11.1996 has been paid by defendant no.3 to the plaintiff ? OPD-3 I will be taking issue no.1 and 3 for the consideration. There is a typographical error in framing issue no.1 and same should have been "Whether plaintiff is entitled for decree of declaration to the effect that sale deed dated 14.11.1996 as null and void".
Both these issues are interconnected with each other and are being disposed of together.
Before deciding on these two issues, it would be appropriate to take note of Section 91 and 92 of Indian Evidence Act, 1872 which provides that when the terms of contract have been reduced to form a document then no oral evidence shall be given in proof of the terms of such contract except the document itself. Section 92 of Indian Evidence Act is an extension of Section 91 of Indian Evidence Act and it provides that no evidence of any oral agreement or statement shall be admitted between the parties to such instrument CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 40 / 45 for the purposes of contradicting, varying, adding or subtracting its term except in the situation as contemplated in exceptions as laid down in Section 92 of Indian Evidence Act.
70. As held in the discussion pertaining to the determination of issue no.2 and 4 that GPA dated 19.07.1996 was validly executed, it would be appropriate to take note of the recitals stated in the Sale deed dated 19.11.1996 Ex.PW1/2 as per which plaintiff had given power of attorney to defendant no.1 and the land in dispute is sold for Rs. 4,65,000/- and amount of Rs. 99/- was received by the confirming party(defendant No.3) from vendee (defendant no.2) in cash on 14.10.1996 and sum of Rs. 4,64,901/- is to be received by the confirming party i.e defendant no.3 from defendant no.2 vide cheque no.162405 dated 14.11.1996. It is also recorded in the recitals of sale deed that vendor (plaintiff) and the confirming party are left with no right, title or interest in the land and defendant no.2 had become the absolute owner of the land. Since sale deed was signed on behalf of plaintiff by defendant no.1. As rightly contended on behalf of defendant while relying upon the judgment of Nanjappan vs Ramsamy and Anr (2015)14 SCC 341 when terms of any contract have been reduced to a form of document no evidence of oral agreement or statement to be admitted in between the parties to any such instrument for contradicting varying and adding to or subtracting from its term.
CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 41 / 4571. Registered sale deed was executed by defendant no. 1 being the agent of plaintiff it does not lie in the mouth of principal to deny the act of an agent. Section 226 of Contract Act provides that when a contract is entered through an agent and the obligation arising out of the act done by an agent, need to be enforced in the same manner and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person
72. It is also relevant to mention that one more fact which probabilises the factum of receipt of consideration amount was the fact as the per the case set up by defendant was that original sale deed of the property (previous chain of documents vide Ex DW-2/1) was given to Mahinder Singh and who handed over the same to defendant no.2 and same is coupled with the deposition of DW-1 who also spoke about the payment of consideration.
73. Since registered general power of attorney was held to be executed by plaintiff in favour of defendant No.1 and therefore, the sale deed executed by an agent in exercise of its authority given by principal cannot be questioned and even otherwise defendants have explained and provided the complete background with regard to the receipt of consideration.
74. Plaintiff has maintained total silence with regard to the alleged conduct of defendant no 1 and it is baffling discovery of fraud CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 42 / 45 no attempt was made by the plaintiff to initiate any criminal action against defendant. It is seen from the perusal of various documents as placed on record that plaintiff took her own time in filing the present suit and same goes on to establish that plaintiff has concealed the vital facts from the Court and furthermore, no justification has been given as to why husband of plaintiff did not enter into a witness box although as claimed in the plaint that he received an information in respect of the fact that sale deed and GPA was executed in fraudulent manner. Plaintiff even did not file any Police complaint against any of the defendants.
75. Time gap of more than four months in executing the GPA and the sale deed and this time gap further raises the question with regard to the genuineness of the claim of plaintiff.
76. Moreover, in Dharamvir and ors vs Ved Singh (Deceased) RSA no. 20/09 dated 30.05.2011, Hon'ble Delhi High Court formulated substantial question of Law formulated as "Whether the courts below were right while dismissing the suit of appellant seeking declaration and cancellation of Sale Deed dated 30.10.1995 because the appellant did not seek the relief of cancellation of General Power of Attorney dated 12.08.1993 which according to appellant is forged and fabricated?" In answering the substantial question it was held Hon'ble High Court that in the absence of the relief seeking declaration of GPA null and void the relief for CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 43 / 45 cancellation of sale deed cannot be granted in the absence of relief of cancellation of GPA and in the case in hand there is no prayer for cancellation of General Power of Attorney and therefore prayer for cancellation of Sale Deed cannot be granted.
77. Plaintiff has also prayed for cancellation of mutation order dated 13.01.1997. No relief in this respect can be granted as suit land and land in dispute admittedly is an agricultural land and provisions of Delhi Land Reforms Act are applicable. In so far as the question of possession of the land in dispute is concerned, no evidence is led by plaintiff to establish that she is in possession of the suit land and furthermore, revenue record shows the name of defendant no.2 as recorded owner. It would be apt to rely on Phoolwati vs Ram Dei and Ors 150 (2008) DLT 105 in which it was held that possession of agricultural land goes with title and revenue records are prepared in respect of agricultural land is prepared on the physical verification and aggrieved party has avail his remedy in terms of Delhi Land Reforms Act.
In view of the above mentioned discussion, Issue no.1 and 3 are decided in favour of defendants and against the plaintiff.
78. Issue no.5:-Whether the suit has been filed without cause of action? OPD Bare reading of the averment as made in the plaint would reveal CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 44 / 45 that plaint discloses cause of action and raises mixed question of law and facts which merits trial as discussed above. Hence issue No.5 is decided in favour of plaintiff as against defendants.
79. Issue no.6:- Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ?
OPD Suit has been correctly valued for the purposes of court fees and jurisdiction as plaintiff has valued the suit for Rs.4,65,000/- and had paid advalorem court fees of Rs. 6931/ and on the relief of injunction, plaintiff had paid fixed court fees of Rs. 13/-. Therefore, this issue is decided in favour of plaintiff as against defendants.
80. Relief.
In view of the finding recorded on issue no.1 to 4, the suit filed by plaintiff is dismissed. No order as to cost.
Decree sheet be prepared.
File be consigned to record room as per rules.
Announced in the Open Court on 10.02.2020 (Hasan Anzar) Additional District Judge-06 West District, THC CS No.612639/16 Lakshmi Devi Vs. Gajender Singh and Ors. Page 45 / 45