Delhi District Court
Ravinder Kumar vs Haseena on 15 May, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR NO. DLWT01-003290-2018
CIV DJ NO. 431/2018
SH. RAVINDER KUMAR
S/o Sh. Mohinder Pal
R/o GH-5 & 7, Flat No. 29,
Paschim Vihar, New Delhi-110087. ....Plaintiff.
Versus
HASEENA
W/o Late Mohd. Jahangir
R/o RZ-Q-218-219, Q Blcok,
Nihal Vihar, New Delhi-110041. ...Defendants.
SUIT FOR POSSESSION, DAMAGES AND
MANDATORY INJUNCTION.
DATE OF INSTITUTION : 12.04.2018
JUDGMENT RESERVED ON : 09.05.2024
JUDGMENT PRONOUNCED ON : 15.05.2024
Digitally
signed by
ANIL
Counsel for the Plaintiff : Mr. Sahil Aeron, Adv. ANIL CHANDHEL
CHANDHEL Date:
Counsel for the Defendants : Mr. Manoj Tomar, Adv. 2024.05.15
18:01:06
+0530
________________________________________________________________
Ravinder Kumar Vs. Haseena Page No. 1 of 34
CIV DJ NO. 431/2018
JUDGMENT
1. The Plaintiff has filed the present suit, against the Defendant, for possession, recovery of the damages/user charges and mandatory injunction, with regard to the suit property.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief hereinbelow:
i. The property bearing No. RZ-Q-218 and 219 are adjacent to each other having an area of 25 sq. yd. each and both are falling in khasra no. 33/16, situated in the revenue estate of Village Kamruddin Nagar, Delhi now known as Nihal Vihar, Colony, New Delhi110041. The property No. RZ-Q-218 was initially taken on rent by husband of Defendant, namely Late Mohd. Jahangir, from Sh. Nand Lal vide rent agreement dated 28.05.2016, Thereafter, the Defendant claimed to have purchased property bearing no. RZ-Q-218, Q-Block, Nihal Vihar from Sh. Nand Lal some-where in January2017.
ANIL CHANDHEL ii. After death of the Defendant's husband, the Digitally signed by ANIL Defendant requested the Plaintiff to sell the property CHANDHEL Date: 2024.05.15 18:01:21 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 2 of 34 CIV DJ NO. 431/2018 RZ-Q-219, Q-Block, measuring 25 sq. yd., situated in Nihal Vihar, New Delhi-110041, with the condition that she will pay the sale consideration within a period of one year. The Plaintiff in fact is not living in the said area and was also interested in selling this property and accordingly accepted the Defendant's proposal. Thereafter, mutual agreement dated 18.02.2017 was reduced to writing.
iii. The suit property measuring 25 sq. yd. bearing property no. RZ-Q-219, Q Block, Nihal Vihar, New Delhi-110041, being part of Khasra No. 33/16, situated in the revenue estate of Village Kamruddin Nagar, New Delhi- 110041, was a built up property comprising of ground floor and first floor at the time of execution of mutual agreement dated 18.02.2017. The suit property is more specifically shown in red color in the site plan enclosed with the plaint.
iv. The Defendant because of her bonafide needs and paucity of accommodation requested the Plaintiff to sell the suit property to her, being adjacent to her property bearing no. RZ-Q-218. After negotiations between the parties, the Defendant showed her inability to pay the sale consideration immediately as her husband had expired recently on 29.01.2017. The husband of the Defendant was known to Plaintiff and ANIL CHANDHEL keeping in view the condition of Defendant, the Digitally signed by ANIL ________________________________________________________________ CHANDHEL Date: 2024.05.15 Ravinder Kumar Vs. Haseena Page No. 3 of 34 18:01:29 +0530 CIV DJ NO. 431/2018 Plaintiff agreed to sell the suit property to the Defendant.
v. At the request of Defendant, the possession of suit property was handed over to the Defendant, which is also recorded in the mutual agreement dated 18.02.2017. As per clause 4 of mutual agreement dated 18.02.2017, the consideration amount was fixed at Rs.9,15,000/- which was to be paid by the Defendant, to the Plaintiff by or before 18.02.2018, failing which the Defendant shall have to vacate the suit property without any hesitation or objection. It has been specifically mentioned in the agreement that the previous original title documents as well as photo-copies shall be handed over to the Defendant at the time of receiving the full payment.
vi. The Defendant failed to make the payment as per clause 4 of mutual agreement dated 18.02.2017. The Plaintiff visited the suit property on 16.02.2018 for requesting the Defendant personally to make the payment as per agreement dated 18.02.2017. However, the Plaintiff was surprised to found that the Defendant had dismantled the adjoining the wall and had got amalgamated the suit property with property bearing no. RZ-Q-218, Q Block, Nihal Vihar, New ANIL CHANDHEL Delhi- 110041, which was already in her possession.
Digitally signed by ANIL CHANDHELThe Plaintiff was astonished to see that the Date: 2024.05.15 18:01:44 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 4 of 34 CIV DJ NO. 431/2018 Defendant had constructed a room above the first floor part of which is on suit property and part of which is on property bearing no. RZ-Q-218, Nihal Vihar, New Delhi-110041.The Plaintiff protested the same but the Defendant told Plaintiff that she made the construction as per her needs and threatened the Plaintiff of dire consequences in case he (Plaintiff) would not leave the suit property immediately. The Defendant also refused to make the payment as recorded in the mutual agreement dated 18.02.2017.
vii. The Plaintiff immediately dialed number 100, who told the Plaintiff that they would be coming to the spot, but nobody turned up despite Plaintiff waiting there for about one hour. The Plaintiff visited the Police Station on the same day and narrated the entire story to the concerned officer but he told the Plaintiff that the police cannot taken any action in this matter as it is a civil matter and they have no jurisdiction to intervene. They also refused to take the complaint to the Plaintiff.
viii. The Plaintiff issued a legal notice dated 28.02.2018 to the Defendant and requested her to vacate the suit property immediately and also to pay user and occupation charges from 19.02.2018 at Rs. 5,000/-
ANIL per month which is prevalent market rate of rent in CHANDHEL the area. It was also requested in the said notice to Digitally signed by ANIL CHANDHEL Date: 2024.05.15 18:01:51 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 5 of 34 CIV DJ NO. 431/2018 demolish the portion of room above first floor constructed illegally by the Defendant above the suit property, which is shown in blue color in site plan enclosed in the plaint.
ix. The Defendant has neither responded to the legal notice nor vacated the suit property and therefore, the Plaintiff has filed the present suit. The Plaintiff has sought three prayers in the suit, i.e., the recovery of possession of the suit property, the payment of user. & occupation charges, and prayer of mandatory injunction for demolition of the construction above the first floor in the suit property.
3. The facts stated in the Written Statement:
The Defendant was duly served with the summons of the suit on 06.06.2018 and entered appearance. The Defendant has filed written statement, wherein the averments of the plaint have been denied. The averments, made in the written statement, are summed up in brief, in paras hereinbelow:
i. The Plaintiff is not the owner of the suit property and had not given the possession to the Defendant either on 18.02.2017 or even in the year 2013. The alleged mutual agreement dated 18.02.2017 is a false, ANIL CHANDHEL manipulated and fraudulent document, which was not Digitally signed by ANIL CHANDHEL Date: 2024.05.15 ________________________________________________________________ 18:01:59 +0530 Ravinder Kumar Vs. Haseena Page No. 6 of 34 CIV DJ NO. 431/2018 prepared with the consent of the Defendant.
ii. It is admitted that property bearing no. RZ-Q-218 and 219 are adjacent to each other having an area of 25 sq. yards each and both are situated in Khasra No. 33/16, in the revenue estate of Village Kamruddin Nagar, Delhi Colony known as Nihal Vihar, Colony, New Delhi-110041. It is not denied that property No. RZ-Q-218, was initially taken on rent by husband /defendant namely Late Mohd. Jahangir from Shri Nand Lal and thereafter the property No. RZ-Q-218 was purchased by the Defendant from Shri Nand Lal on 01.03.2017.
iii. The Defendant is an illiterate and a widow. The Plaintiff had taken signature of the Defendant on certain papers which were typed and no notary stamp was affixed on the agreement. The contents of the alleged papers were not read out to the Defendant. The coloured copy of site plan has not been supplied to the Defendant and hence the site plan is denied.
iv. The alleged documents and mutual agreement dated 18.02.2017 etc. are totally fraudulent, fabricated documents, the contents of which were not read out to the Defendant, who is a widow and illiterate woman and the said alleged documents have no legal Digitally signed by sanctity and the same are liable to be declared null ANIL ANIL CHANDHEL CHANDHEL Date:
2024.05.15 18:02:05 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 7 of 34 CIV DJ NO. 431/2018 and void.
v. The Defendant is in possession of the suit property since 2013. The property No. RZ-Q-219 and the property No. RZ-Q-218 have been made joint by raising construction by late husband of the Defendant namely Late Mohd. Jahangir. The Defendant along with her family is residing in both the properties which are joint. Both the properties are having Ground floor, First Floor, Second Floor and Third Floor. The late husband of the Defendant had invested huge amount in the construction in both the properties which are joint. The photograph of both the properties which are joint is also being annexed. The Defendant is also in possession with electricity bills since 2013 and in the said electricity bills of BSES the mobile number mentioned by the BSES is 8375831664 and the said mobile number is of Late husband namely Late Mohd. Jahangir of Defendant. It also shows that the Defendant is in possession of the suit premises. The death certificate of Late husband Mohd. Jahangir also clearly showing the permanent address as RZQ 219/218, Nihal Vihar, Delhi. The date of death mentioned in the death certificate is 29.01.2017 and the date of Registration of Death is 07.02.2017.
ANIL CHANDHEL vi. The Plaintiff does not have any title documents and Digitally signed by ANIL CHANDHEL ________________________________________________________________ Date: 2024.05.15 Ravinder Kumar Vs. Haseena Page No. 8 of 34 18:02:12 +0530 CIV DJ NO. 431/2018 the Plaintiff cleverly by playing mischief, fraudulently prepared alleged papers to cheat and play fraud upon the Defendant and the contents of the said papers were not read out to the Plaintiff who is an illiterate woman and all the alleged papers are product of fraud, misrepresentation.
vii. The alleged agreement is totally a product of fraud, misrepresentation upon illiterate woman, whose husband has expired. In order to show falsely that the Defendant is in possession of the suit premises since 18.02.2017, the Plaintiff manipulated, concocted and through misrepresentation prepared the alleged agreement dated 18.02.2017, which was not even read out to the Defendant and signature of the Defendant were obtained through fraud misrepresentation. whereas the Defendant is in physical possession of the suit premises and residing with her family since 2013.
4. The facts stated in the Replication:
4.1. The Plaintiff has filed the replication, wherein the Plaintiff has traversed the contents of the written statement of the Defendant and has made the necessary denials, reiterating ANIL CHANDHEL the contents of the plaint.Digitally signed by ANIL CHANDHEL Date: 2024.05.15
________________________________________________________________ 18:02:20 +0530 Ravinder Kumar Vs. Haseena Page No. 9 of 34 CIV DJ NO. 431/2018
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 16.01.2019:
i. Whether mutual agreement dated 18.02.2017 is a forged and fabricated document, if so, its effect? OPD.
ii. Whether the Plaintiff is entitled to decree of possession of the suit property from the Defendant, as prayed for vide prayer clause (a)? OPP.
iii. Whether the Plaintiff is entitled to decree for recovery of mesne profits @ Rs. 8300/- per month, if so, for what period? OPP.
iv. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP.
v. Relief.
ANIL
CHANDHEL
6. The Plaintiff's Evidence: Digitally signed
by ANIL
CHANDHEL
Date: 2024.05.15
18:02:31 +0530
6.1 The Plaintiff has led its evidence and has examined two
witnesses in support of his case.
________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 10 of 34 CIV DJ NO. 431/2018
6.2. The Plaintiff has appeared as PW-1 and has exhibited and relied upon the following documents in his examination-in- chief:
i. Exhibit PW-1/1(OSR): Rent Agreement dated 28.05.2016.
ii. Exhibit PW-1/2 (OSR): Agreement dated 18.02.2017.
iii. Exhibit PW-1/3(Colly)(OSR): Title documents of the suit property.
The PW-1 was cross-examined by the Ld. Counsel for the Defendant and was discharged, upon conclusion of his cross- examination.
6.3. The PW-2 is son of the Plaintiff. The PW-2 has relied upon the documents, relied upon the PW-1, in his examination in chief. The PW-2 was cross-examined by the Ld. Counsel for the Defendant and was discharged, upon conclusion of his cross-examination.
Digitally
7. The Defendant's Evidence:
signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.05.15 18:02:37 +0530 7.1 The Defendant has examined only one witness in support of their case. The Defendant herself appeared as the DW-1 in the matter. The DW-1 has relied upon and exhibited the following documents, in her examination-in-chief:
________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 11 of 34 CIV DJ NO. 431/2018 i. Exhibit DW-1/1(OSR): Death certificate of Mohd.
Jahangir;
ii. Exhibit PW-2/DA: Photograph of House No. RZQ-
218 & 219, Nihar Vihar, Delhi;
iii. Exhibit DW-1/3 (OSR): The progress report of Irfan Ali;
iv. Exhibit DW-1/3 (OSR): The progress report of Rehana;
v. Mark DX: Copy of declaration by Mohd. Jahangir; vi. Exhibit PW-2/DB: Electricity Bill dated 24.01.2016.
The DW-1 was cross-examined by the Ld. Counsel for the Defendant and was discharged, upon conclusion of his cross- examination.
8. Submissions of the Parties.
8.1 After conclusion of the evidence, the Ld. Counsels for the parties have addressed their final arguments. The Ld. Counsel for the Plaintiff has submitted that the Defendant has failed to prove onus of the Issue No.1. It is submitted that the Plaintiff has proved a better right, entitlement and interest in terms of the documents produced in the evidence.
ANIL Therefore the legal requirements for suit for possession have CHANDHEL duly been made out. It is submitted that the prayer for Digitally signed by ANIL CHANDHEL Date: 2024.05.15 possession leads to other prayers and the suit should be 18:02:44 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 12 of 34 CIV DJ NO. 431/2018 decreed in terms of the prayers of the Plaint. Ld. Counsel for the Plaintiff has relied upon the following judgments:
i. Swadesh Ranjan Sinha Vs. Haradeb Banerjeet AIR 1992 SC 1590 ii. Aarti Kumari Vs. Rakesh Kumar Chhabra and Ors. 2019XAD (Delhi)28 iii. Jamila Begum Vs. Heena Ansari RFA 705/2017. iv. Komal & Ors Vs. Panchi Devi 2018(168) DR244.
v. Hardip Kaur Vs. Kailash & Ors. 193(2012) DLT168.
vi. Sharda Vs. Kusum Gupta: RSA196/2017. vii. Vikas Wadhwa Vs. Pardeep Kumar & Ors.
256(2019)DLT787.
viii. Bimla Chopra & Ors. Vs. Kuldeep
2023/DHC/002997.
ix. Hemant Verma Vs. Mithilesh Rani &
Ors.280(2021)DLT105.
x. Ramesh Chand Vs. Suresh Chand &
Ors.2012(2)CCC586.
xi. Bishundeo Narain & Ors. Vs. Jagernath AIR
1951SC280.
ANIL
xii. K.M. Madhavakrishnan Vs. R.S. Sami & Ors. CHANDHEL
(1980)2MLJ398. Digitally signed
by ANIL
CHANDHEL
xiii. Martin Cashin & Ors. Vs. Peter J. Cashin AIR Date:
2024.05.15
18:02:49 +0530
1938PC103.
________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 13 of 34 CIV DJ NO. 431/2018 xiv. P.S. Bedi Vs. The Project & Equivalent Corporation of India Ltd. 1994IIAD(Delhi)937 xv. Subhash Chand Aggarwal Vs. Yashveer Singh & Ors. RFA 354/2017.
8.2. Ld. Counsel for the Defendant has submitted that the Plaintiff has failed to prove his ownership and therefore, suit for possession has to fail. It is submitted that there are inherent contradiction in version of the Plaintiff, about the handing over of the possession of the suit property to the Defendant. The Defendant has proved that she has been in a possession of the suit property since 2013 and therefore, falsity of contentions of the Plaintiff have been proved on record. The construction of the suit property is joint with the other property and the Plaintiff was not even aware of the status of structure in the suit property, which makes his claim of ownership completely doubtful. Ld. Counsel for the Defendant has relied upon the following judgments in support of his contentions:
i. Suraj Lamps Industries Pvt. Ltd. vs. State of Haryana:
SLP (Civil) No. 13917/2009.
ii. Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023):
2023 INSC 1016.
ANIL
9. Conclusions on Issues & Reasons for such conclusions: CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.05.15 9.1. Issue No.1 Whether mutual agreement dated 18:02:56 +0530 18.02.2017 is a forged and ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 14 of 34 CIV DJ NO. 431/2018 fabricated document, if so, its effect? OPD.
9.1.1. The onus to prove the Issue No.1 is upon the Defendant. The agreement dated 18.02.2017 has been exhibited by PW-1 as Exhibit PW-1/2, in his examination in chief. The Defendant has admitted her signatures on the aforesaid document, however denied the contents of the same. The Defendant has stated in para 2 of reply on merits of the written statement that Plaintiff has taken signatures of the Defendant on certain pages, which were already typed and there was no notary stamp on the same. The contents of aforesaid document are stated to have not been read out to the Defendant. It is further stated in the written statement the signatures of the Defendant were obtained through fraud and misrepresentation. The Defendant has appeared as the sole witness in the matter and reiterated the contentions of written statement in her examination-in-chief.
9.1.2. The Defendant has been cross-examined on the aspects of Exhibit PW-1/2. The relevant cross examination dated 01.02.2023 at page 2 is being reproduced hereinbelow:
"......It is wrong to suggest that my husband has never ANIL CHANDHEL purchased the property bearing no. RZQ-219 and no documents were ever executed. I have never asked the Digitally signed by ANIL plaintiff to hand over the titled documents for the CHANDHEL Date: 2024.05.15 property bearing No. RZQ-219. I remember that I had 18:03:01 +0530 an agreement with the plaintiff. (Vol. I was not aware ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 15 of 34 CIV DJ NO. 431/2018 about the contents of the agreement which was signed by me as I am illiterate person). I have never asked the plaintiff about the contents of agreement above- mentioned. (Vol. the plaintiff told me that the documents are related to some financial transaction). I have never made any construction in property bearing no. RZQ-219 after demise of my husband. I do not remember whether my son namely Mr. Khusbuddin Ali between me & plaintiff which was marked as Ex. PW- 1/2. (Vol. copy of agreement Ex. PW-1/2 was not notarized at the time when I signed the agreement. The plaintiff Ravinder Kumar handed over the copy of the said agreement which was also not notarized). I do not remember whether I have attached the copy of the said agreement with my written statement. I have never affirmed the contents of the aforesaid agreement with any other persons as well. (Vol. I have once asked the plaintiff to hand over the documents however, the plaintiff has not handed over the same till date). I do not know from whom my husband purchased the property. Electricity bill of the property bearing no. RZQ-219 is in the name of some punjabi person but I do not know the name of that person...."
The Defendant has also stated in her cross-examination at the outset that she was not aware as to what was written in her affidavit of evidence nor did her Counsel informed her about the contents of the same.
9.1.3. The Defendant further states that an agreement was executed between her and Plaintiff. She was not aware of the contents ANIL of the same nor did she ask the Plaintiff about the contents of CHANDHEL the same. It is stated that she was not informed by the Digitally signed by ANIL CHANDHEL Plaintiff and the aforesaid agreement pertained to a financial Date: 2024.05.15 18:03:07 +0530 transaction. It is also stated by her in the cross examination ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 16 of 34 CIV DJ NO. 431/2018 that a copy of the aforesaid agreement was given to her by the Plaintiff.
9.1.4. Thus if the evidence of the Defendant is examined in totality, the same fall short of proving the forgery or fabrication of Exhibit PW-1/2. The Defendant has not averred the foundational fact as to why would she sign the Exhibit PW1/2, at all or what was the financial transaction between her and the Plaintiff. Further if the Plaintiff intended to play a fraud upon the Defendant, why would she be given a copy of the agreement.
9.1.5. Therefore, the Defendant has failed to prove the Issue No.1 in the affirmative and forgery, in the strict sense, as pleaded by the Defendant has not been established. However, Issue No.1 is not decided in favour of the Plaintiff either, for the reasons related to the Exhibit PW-1/2, which are being stated, in the discussion under the Issue No.2.
9.2. Issue No.2 Whether the Plaintiff is entitled to decree of possession of the suit property from the Defendant, as prayed for vide prayer clause (a)?
OPP.
ANIL CHANDHEL 9.2.1. The onus to prove this Issue is upon the Plaintiff. The Digitally signed by ANIL CHANDHEL narrative of the plaint is set up in an implied tone of Date: 2024.05.15 18:03:12 +0530 ownership. In the entire plaint, the ownership or rights of the ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 17 of 34 CIV DJ NO. 431/2018 Plaintiff have not been explicitly stated in the affirmative and the same has to be inferred from the documents relied upon by the Plaintiff.
9.2.2. It is stated that after death of her husband in January, 2017, the Defendant approached the Plaintiff to purchase the suit property and an agreement dated 18.02.2017 was executed between the parties. It is further stated that the suit property was constructed till first floor, at the time of execution of the aforesaid agreement. It is stated that the possession of the suit property was handed over to the Defendant on 18.02.2017. It is stated that the Defendant did not make payment of sale consideration in terms of agreement dated 18.02.2017 nor vacated the suit property and therefore the Plaintiff has filed the present suit.
9.2.3. The Plaintiff has examined two witnesses, i.e., the Plaintiff and his son. The examination in chief of the PW-1 and PW-2 is identical and their cross examination is also almost identical. Both the witnesses have affirmed the contents of the plaint, in their examination in chief. Though the Plaintiff does not expressly state in the affirmative that he is the owner of the suit property, however it is mentioned in the Exhibit PW-1/2, relied upon by the Plaintiff that the Plaintiff is the owner of the suit property. Therefore, it has to be examined, whether the Plaintiff has proven his ownership or not. Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.05.15 18:03:17 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 18 of 34 CIV DJ NO. 431/2018 9.2.4. Nature of the Plaintiff's right in the suit property:
i. The Plaintiff in order to assert his rights in the suit property has relied upon the documents, i.e., Exhibit PW1/3(colly). The Exhibit PW1/3(Colly) are the following documents:
a. Unregistered general power of attorney dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff;
b. Unregistered agreement to sell dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff;
c. An affidavit dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff;
d. Unregistered receipt dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff;
e. Possession letter dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff;
f. Unregistered Will dated 03.12.2012, executed by Ms. Surinder Kaur in favour of the Plaintiff.
ii. The aforesaid documents are mentioned in the examination in Digitally
signed by
ANIL
ANIL CHANDHEL
chief as title documents. The aforesaid documents are CHANDHEL Date:
2024.05.15
18:03:23
+0530
disputed by the Defendant. The afore-mentioned documents ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 19 of 34 CIV DJ NO. 431/2018 are unregistered and therefore, do not confer any title in law on the Plaintiff. Ld. Counsel for the Plaintiff has stated that the Plaintiff does not have to prove the absolute ownership in the suit property and has only to prove a better right than the Defendant. It is stated that the Defendant does not have any documents in her favour and therefore, the better right of the Plaintiff, in terms of Exhibit PW-1/3(colly) is sufficient for seeking possession from the Defendant. It is stated that the Plaintiff can be construed as an attorney of the previous owner, who does not have any objection to the rights of the Plaintiff to seek possession from the Defendant. He has further relied upon the judgment passed by the Hon'ble High Court of Delhi in 'Hardip Kaur Vs. Kailash & Ors. 193(2012) DLT168'. Ld. Counsel for the Defendant has relied upon the judgment passed by Hon'ble Supreme Court in, "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016."
iii. The facts of the present case are more in sync with the facts of the judgment passed by the Hon'ble Supreme Court in "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023):
2023 INSC 1016" In the aforesaid case, the Plaintiff has filed a suit for possession on the basis of unregistered documents. The Hon'ble High Court has decreed the suit on the ground that the Defendant has failed to prove his defence, the Plaintiff had a better title and further the Plaintiff could be ANIL CHANDHEL construed as attorney of previous owner. The relevant Digitally signed by ANIL CHANDHEL observations of the Hon'ble High Court of Delhi in "Shakeel Date: 2024.05.15 18:03:28 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 20 of 34 CIV DJ NO. 431/2018 Ahmed Vs. Syed Akhlaq Hussain:2018:DHC:5311", are being reproduced hereinbelow:
"6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed. I completely agree with the reasoning and conclusions of the trial court because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff. I also agree with the trial court that the issue of Gift Deed could not be believed because in the written statement filed by the appellant/defendant there were no names which were given as to who were the relatives and the other persons present when the alleged oral gift had taken place by Laiq Ahmed to his brother/appellant/defendant. Even in his affidavit by way of evidence filed by the appellant/defendant there was complete silence as regards the persons/their names who were present at the time of the alleged oral gift of the suit property made by Laiq Ahmed to his brother/appellant/defendant. I therefore agree with the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother.
7. Though not argued on behalf of the appellant/defendant one other issue which requires consideration is as to whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 Digitally signed by ANIL becoming effective from 24.1.2001 and by which Act, ANIL CHANDHEL CHANDHEL Date:
2024.05.15 documents such as agreement to sell cannot be looked 18:03:35 +0530 into for conveying the title of part performance under ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 21 of 34 CIV DJ NO. 431/2018 Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr.: 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. This additional reasoning I am giving under Order XLI Rule 24 CPC. Trial court therefore, in my opinion, was justified in decreeing the suit for possession and mesne profits."
However the Hon'ble Supreme Court has disagreed with the aforesaid reasoning, as highlighted above. The relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer Digitally signed by ANIL any right, much less a legally enforceable right to ANIL CHANDHEL CHANDHEL Date:
2024.05.15 approach a Court of Law on its basis. Even if these 18:03:42 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 22 of 34 CIV DJ NO. 431/2018 documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i) Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors. : 2018:INSC:578.
(ii) Balram Singh v. Kelo Devi : 2022:INSC:10111.
(iii) M/S Paul Rubber Industries Private Limited v.
Amit Chand Mitra: 2023:INSC:8542.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the Respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court Digitally have taken the same view.
signed by
ANIL
ANIL CHANDHEL
CHANDHEL Date:
2024.05.15
18:03:48
________________________________________________________________ +0530 Ravinder Kumar Vs. Haseena Page No. 23 of 34 CIV DJ NO. 431/2018
14. In case the Respondent wanted to evict the Appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the Appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
iv. The facts of the present case are akin to the facts stated in the above-mentioned case. The Plaintiff does not state expressly in the plaint or evidence that he has filed the suit as an attorney of the previous owner, with her permission to evict the Defendant. In fact, the Plaintiff, does not disclose his nature of rights in the suit property in the affirmative either in plaint or in examination-in-chief and the same has to be inferred from the documents relied upon by him. The documents relied upon by the Plaintiff are unregistered and thus, do no confer any legal title in favour of the Plaintiff. Therefore, in terms of the law laid down by the Hon'ble Supreme Court of India in Shakeel Ahmed (Supra), the suit for possession, solely on the basis of aforesaid unregistered documents, on the facts stated in the plaint, would not be ANIL maintainable, irrespective of the nature of possession of the CHANDHEL Defendant. Besides the defective title, there are other reasons, Digitally signed by ANIL CHANDHEL Date: 2024.05.15 18:03:54 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 24 of 34 CIV DJ NO. 431/2018 which dis-entitles the Plaintiff to seek any decree for possession and the same are being discussed in the paras hereinafter.
9.2.5. Suit property being part of joint structure with the property No. Q-218:
i. The suit property is stated to be 25 square yards built up structure in property No. Q-219. The Plaintiff has filed a site plan, which shows the suit property as an independently constructed unit upto second floor. The aforesaid site plan is denied by the Defendant. Further the Plaintiff has not relied upon the aforesaid site plan in evidence and thus the same has not been proved.
ii. The Plaintiff has stated in para 5 of the Plaint and para 6 of the examination in chief that on 16.02.2018, he came to know that the Defendant has dismantled the adjoining wall between the property No. Q-218 and Q-219 and amalgamated the suit property with the other property. The Defendant has stated in para 4 of reply on merits of the written statement that the suit property is jointly constructed with the property No. Q-218 and the construction was raised by her husband.
iii. The documents relied upon by the Plaintiff do not clearly establish the physical status of the suit property. The ANIL CHANDHEL Defendant has not filed any site plan of the suit property, Digitally signed by however the Defendant has filed colour photograph of the ANIL CHANDHEL Date: 2024.05.15 18:04:00 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 25 of 34 CIV DJ NO. 431/2018 suit property. During the cross-examination, the PW-1 and PW-2 are confronted with the aforesaid photograph, which is Exhibit PW-2/DA. The aforesaid photograph and state of structure shown in the same are admitted by the PW-1 and PW-2. If one examines the structure in the aforesaid photograph,i.e., in Exhibit PW-2/DA, it is visible to the naked eye that there is only one built up structure, from the foundation till roof, with single points of entry and exit. The structure in the suit property is not such, which can be considered two units, wherein the possession of one unit can be given to the Plaintiff, without dismantling/interfering the property from foundation till roof. The aforesaid structure is one indivisible and impartible building. Though the Plaintiff has claimed mandatory injunction for demolition of the construction from first floor onwards, however in order to give possession of the suit property, the structure has to be dismantled or demolished from ground floor itself, which is not the prayer in the present case. Therefore, the Plaintiff was liable to provide better specifications of the suit property. The documents on record do not establish the identity of the physical structure in the suit property with clear specifications, to warrant a decree of possession in favour of the Plaintiff. Further in order to seek the decree for possession in such a case, the facts has to be clearly stated and established as to how the aforesaid structure came to being and the Plaintiff has not acquiesced in the same, so ANIL CHANDHEL that the equities related to other property, i.e., Q-218 are also Digitally signed by ANIL CHANDHEL being taken care of. However there are no pleadings to that Date: 2024.05.15 18:04:07 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 26 of 34 CIV DJ NO. 431/2018 effect and the evidence, in terms of equity is completely against the Plaintiff.
iv. It has also been established on record that the aforesaid joint construction was raised prior to the year 2013. The Plaintiff has stated in plaint that the construction above the first floor was raised by the Defendant after 2017. The Defendant has stated in the written statement that the joint construction of the suit property and property No.Q-218 was raised by her husband. The Plaintiff does not dispute the aforesaid fact in the cross-examination. The cross-examination of the Plaintiff, dated 01.05.2019 @ page No.3 is being reproduced hereinbelow:
"It is correct that as of today property bearing no. RZ-Q- 218 and RZ-Q-219 have been constructed after joining the two properties with common terrace. (Vol. This fact came to our knowledge when we visited there on 18.02.2017 along with my son (Gaurav). The said two properties were constructed by the late husband of the Defendant. It is correct that as of today the said properties are constructed with ground floor, first floor, second floor and third floor. It is wrong to suggest that I never visited inside the said property as it was never purchased by me. I do not know if substantial amount was spent by the late husband of the Defendant in raising the said construction.
At this stage, a photographs Ex. PW2/DA has been shown to the witness, who admits it to be of the joint said properties. At this stage, electricity bill, Ex.PW2/DB has been shown to the witness who admits that the same has been raised at the address of the suit property. I do not ANIL CHANDHEL know if the mobile number 8375831664 as mentioned in the said bill at point X belonged to the late husband of the Digitally signed by ANIL Defendant namely, Mohd. Jahangir. CHANDHEL Date: 2024.05.15 18:04:12 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 27 of 34 CIV DJ NO. 431/2018 I cannot say anything about the declaration of Mohd. Jahagir, Mark-DX on record."
Thus on the basis of above-mentioned testimony, it can be concluded that the construction of joint structure was raised by the late husband of the Defendant. Further cross- examination on page 4 dated 01.05.2019 is also relevant for discussion and is being reproduced hereinbelow:
"It is correct that my office is near to the suit property and is approximately 100 meters away. I have not made any complaint to the Police or any other authority, when the Defendant joined the suit property with the other property and raised construction upon it since it never came to my notice. (Vol. I visit my office near the suit property about once or twice a month. I had only verbally permitted the Defendant's husband to construct the toilet and bathroom.) "..........I am aware of the fact while construction of bathroom was being raised in the suit property, a girl namely Tamannna got injured from a stone which fell from the top while she was playing downstairs but I do not know if she was taken to Mansaran Hospital."
Thus the Plaintiff states that he has permitted the Defendant's husband to construct one bathroom in the suit property. It is relevant to note that the Defendant's husband has passed away on 29.01.2017, and whereas the Plaintiff claims in Exhibit PW1/2 to have given the possession to the Defendant after the death of her husband. The office of the Plaintiff was 100 meters away from the suit property and it is completely unbelievable that structure being built up-to 3rd floor would go ANIL CHANDHEL unnoticed by the Plaintiff. Thus the testimony of the Plaintiff Digitally signed by ANIL is more aligned with the contentions of the Defendant that the CHANDHEL Date: 2024.05.15 18:04:18 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 28 of 34 CIV DJ NO. 431/2018 joint construction of the suit property and property No. Q-218 was raised by the Defendant's husband, prior to his death.
v. Therefore, the Plaintiff has failed to explain as to how did he permit the Defendant's husband to construct the suit property in a manner, completely prejudicial to the interests of the Plaintiff. The Plaintiff has thus acquiesced in the aforesaid construction and the subsequent claims of the Plaintiff have to examined in light of acquiescence of the Plaintiff, for amalgamation of property No.Q-218 with property No. Q-
219. Therefore, the equities created in favour of the Defendant, on account acquiescence of the Plaintiff are to be considered and balanced before the Plaintiff seeks any decree for possession. The acquiescence of the Plaintiff and the equities created on account of the same become relevant for consideration of the prayers of mandatory injunction. Though in the present case, the Plaintiff has only restricted the prayer of mandatory injunction with regard to construction above the first floor, whereas the suit property is joint from the ground floor since the ground floor.
9.2.6. Possession of the Defendant:
i. The Plaintiff has stated in the plaint that the possession of the ANIL suit property was handed over to the Defendant in 2017. It is CHANDHEL also mentioned in the Exhibit PW1/2 that the possession of Digitally signed by ANIL CHANDHEL the suit property was handed over to her in the year 2017. The Date: 2024.05.15 18:04:24 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 29 of 34 CIV DJ NO. 431/2018 Defendant has stated in the written statement that she is in possession of the suit property since 2013. The Defendant has further relied upon the school certificates of her children and death certificate of her husband, to show that even prior to year 2017, she was in possession of the suit property. In the cross-examination dated 01.05.2019 (para 1 @ page 3), the Plaintiff himself states that the Defendant is in possession of the property since 2013. Thus contentions of the Plaintiff, in the plaint as well as the factum of possession, as stated in Exhibit PW1/2 is not correct. The Plaintiff has not explained as to how and in what capacity the Defendant has come into possession into suit property in the year 2013.
9.2.7. Exhibit PW1/2: The Defendant has failed to prove that the Exhibit PW1/2 is forged document, however she maintains that she did not understand the terms of the document and it was related to a financial transaction. The Plaintiff has admitted in the cross-examination that the Defendant is a widow and illiterate. The document was stated to be executed after 20 days of death of the Defendant's husband.
The document records that the Plaintiff has given the possession of the suit property, at the time of signing of the agreement, which fact is incorrect, as the Defendant was in possession of the suit property since 2013. No advance money/earnest money has been stated to be taken/given in terms of agreement. The sale consideration is payable within Digitally signed by ANIL a period of one year. If the parties were not known to each-
ANIL CHANDHEL
CHANDHEL Date:
2024.05.15
18:04:32
+0530
other, there was no need for the Plaintiff to enter into a ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 30 of 34 CIV DJ NO. 431/2018 transaction of this nature. Further if the parties were known then the Plaintiff had to explain, as to why would Defendant being illiterate, whose husband had recently died, would enter into an agreement, completely against her interest. The signatures of the Defendant are in Hindi and the entire document is in English. The date of execution and stamp of notary are on different dates. The aforesaid document is an unregistered one. The structure in the suit property has been raised up-to third floor by the husband of the Defendant with his own expenses. The structure is joint with the property No. Q-218. Therefore, there was no need for the Defendant to execute a document such as Exhibit PW-1/2. The Plaintiff has not been truthful in his case and there is question mark on the document, in the view of the facts emerged on record. The Plaintiff has not been able to explain the afore- mentioned contradictions and therefore, this Court is unable to believe the Exhibit PW-1/2.
9.2.8. The facts, as established on record and discussed hereinabove, are being summed up in brief hereinbelow:
i. The Plaintiff has relied upon unregistered documents, which do not confer any legal title upon him. The documents relied upon by the Plaintiff are disputed by the Defendant. The case set up in the affirmative does not expressly state the nature of rights of the Plaintiff. The ANIL CHANDHEL documents, being the basis of title, do not prove Digitally signed by ANIL ownership in favour of the Plaintiff. The facts of present CHANDHEL Date: 2024.05.15 18:04:39 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 31 of 34 CIV DJ NO. 431/2018 case are akin to the fact of "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016", and therefore, no decree for possession is maintainable on the aforesaid facts.
ii. The Defendant is in possession of the suit property since 2013. The Plaintiff has never been in possession of the suit property. The Plaintiff has failed to show as to how and in what capacity, the Defendant has come into possession, that too immediately after execution of the documents in favour of the Plaintiff.
iii. The Plaintiff has failed to prove the physical structure in the suit property with clear pleadings and evidence. The suit property is one joint structure with property No. Q- 218 and possession of the same cannot be given to the Plaintiff, without first demolishing the other part from ground floor till third floor. The prayer for demolition is limited to construction over the first floor and further the equities arising out of property No.Q-218, as well as from the acquiescence of Plaintiff in permitting the construction of joint structure, are to be taken into consideration and balanced, before passing any such decree for possession or mandatory injunction.
iv. The joint structure in the suit property was built up by the late husband of the Defendant and the facts ANIL CHANDHEL established on record prove the acquiescence of the Digitally signed by ANIL Plaintiff for the construction. Therefore, no decree for CHANDHEL Date: 2024.05.15 18:04:45 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 32 of 34 CIV DJ NO. 431/2018 possession can be passed, unless the equities are balanced by the Plaintiff.
v. The Exhibit PW1/2 is an agreement against the normal circumstances and is not in synch with facts of the present case. The Plaintiff has failed to explain the contradictions associated with the same.
vi. The Plaintiff has not stated the true and correct facts in the case and the contradictions, emerging on record, should be interpreted against the Plaintiff.
Therefore, the Plaintiff, even on account of preponderance of probabilities the Plaintiff is not entitled to the decree for possession of the suit property. The Issue No.1 is accordingly decided against the Plaintiff and in favour of the Defendant.
9.3. Issue No.3 Whether the Plaintiff is entitled to
decree for recovery of mesne
profits @ Rs. 8300/- per month, if
so, for what period? OPP.
9.4. Issue No.4 Whether the plaintiff is entitled to
decree of mandatory injunction,
as prayed for? OPP.
ANIL
CHANDHEL
Since the Issue No.1, containing the principal and Digitally signed foundational prayer has been decided against the Plaintiff, by ANIL CHANDHEL Date: 2024.05.15 18:04:51 +0530 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 33 of 34 CIV DJ NO. 431/2018 therefore, the Plaintiff is not entitled any mesne profits or mandatory injunction as prayed for. The aforesaid Issue No.3 and 4 are accordingly, decided against the Plaintiff and in favour of the Defendant.
10. Relief:
The suit of the Plaintiff is Plaintiff is dismissed. The Decree sheet be drawn accordingly. Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.05.15 18:04:58 +0530 Announced in the open Court (ANIL CHANDHEL) today on 15th of May, 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/15.05.2024 ________________________________________________________________ Ravinder Kumar Vs. Haseena Page No. 34 of 34 CIV DJ NO. 431/2018