Delhi District Court
Smt. Madhu Arora vs Smt. Sonia Dhamija on 20 October, 2020
IN THE COURT OF MS MEDHA ARYA: CIVIL JUDGE: SOUTH
WEST DISTRICT: DWARKA COURT: NEW DELHI
CS SCJ NO.24/11/2011 26730/16
IN THE MATTER OF :
SMT. MADHU ARORA
W/o. Shri Devinder Arora
R/o. IV/1/51-A, Gopi Nath Bazar
Delhi Cantt. ............. Plaintiff
Versus
SMT. SONIA DHAMIJA
Wd/o. Late Narender Dhamija
R/o. IV/1/39, Gopi Nath Bazar,
Delhi Cantt. ........... Defendant
Date of filing : 27.07.2011
Date of Institution : 28.07.2011
Date of pronouncing judgment : 20.10.2020
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
JUDGMENT.
1.This judgement shall dispose of the suit of the plaintiff seeking a de- claration that the sale deed in favour of the defendant in 07.01.1998 per- taining to property IV/1/83, Gopinath Bazar, measuring 50 square yards built on Survey No. 52/15 registered as document no. 73, Addl. Book No.1, Vol.No.70 on pages 182-183 dated 8.1.1998 as well as the GPA, affidavit and receipt pertaining to the same property dated 14.05.1990 all executed in favour of the plaintiff by her husband Sh Narender Dhamija are null and void, and also for the relief of mandatory injunction in the form a direction to the defendant to produce the impugned sale deed dated 07.01.1998 so it may be cancelled.
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2. It is the case of the plaintiff, as culled out from the amended plaint that she is the owner of the suit property ie property IV/1/83, Gopinath Bazar. The plaintiff claims that previously the suit property used to bear the old survey number of No.80, Church Road, Delhi Cantt. and now can be identified as 52/15, Delhi Cantt situated in Gopi Nath Bazar, Delhi Cantt. It is the case of the plaintiff that the erstwhile owner of the suit prop- erty was one Mr. Ajay Gupta, who acquired the title to the suit property by virtue of judgement and decree in a suit for partition dt. 03.10.1964. It is the case of the plaintiff that she purchased the property from said Mr. Ajay Gupta by virtue of documents such as agreement to sell, receipt and Will dated 14.5.1990 for consideration and thereafter a sale deed dt. 30.12.1993 was also executed in her favour. It is the case of the plaintiff that when she purchased the suit property from its erstwhile owner Mr. Ajay Gupta, the suit property was in the occupation of Sh. Hot Lal Dhamija in the capacity of a tenant. The plaintiff requiring the possession of the suit property from the tenant, filed an eviction petition bearing No. 8/2011 against the said tenant Sh. Hot Lal Dhamija. In the said petition, an application under Or- der 1 Rule 10 CPC was filed by the defendant herein, who alleged to be the owner of the suit property on the basis of the sale deed dt. 07.1.1998. That is to say, in the said application, the defendant set up, for the first time to the knowledge of the plaintiff, the sale deed dt. 07.01.1998, which has been impugned by way of the present suit, executed in her favour by her hus- band Sh. Narender Dhamija. It is the case of the plaintiff that Sh. Narender Dhamija was never the owner of the suit property and therefore could not have sold the same to his wife, being the defendant herein. It is the case of the plaintiff that she had already purchased the suit property from the erstwhile owner in the year 1990 and therefore, Sh. Narender Dhamija could not have conveyed the valid title of the suit property to the defendant herein. It is the case of the plaintiff that the defendant relies upon certain forged documents such as GPA, affidavit, receipt etc dt. 14.5.1990 in which Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.2 the erstwhile owner of the suit property Sh. Ajay Gupta is shown to be the executant. It is the case of the plaintiff that bare perusal of the documents reveals that they are forged as the sale deed, GPA, affidavit purportedly ex- ecuted by Sh. Ajay Gupta in favour of Sh. Narender Dhamija have been witnessed by one Sh. Rajender Singh, who has also witnessed the sale deed dated 07.1.1998 subsequently executed in favour of the defendant herein but who has mentioned two different addresses on the two different docu- ments. By way of the present suit, the plaintiff has sought the following re- liefs:
"(i) That the alleged Sale deed dated 07.1.1998 stated to be executed by Shri Narender Dhamija in favour of Smt. Sonia Dhamija in respect of the property No. IV/1/83, Gopi Nath Bazar, mesuring 50 sq. yards built on Sur-
vey No. 52/15 registered as document No.73, Addl. Book No. I, Vol No. 70 on pages 182-183 dated 08.01.1998 and General Power of Attorney dated 14.5.1990 and appointing Sh. Narender Dhamija as General Power of At- torney, Affidavit dated 14.05.1990 and receipt dated 14.05.1990 be de- clared as forged, fabricated document and be declared as forged and fab- ricated document executed without any authority and is null and void and does not convey any right, title or interest to the defendant in respect of the suit premises and void abinitio.
(ii) That the decree of mandatory injunction be also passed in favour of the plaintiff and against the defendant directing defendant to produce the ori- ginal alleged Sale Deed dated 07.1.1998 and thereafter same be ordered to be cancelled/ destroyed and authorities be directed to remove all entries from the records of the Sub-Registrar-IX or any other authority as the case may be.
(iii) Costs of the suit be also awarded in favour of the plaintiff and against the defendant.
(iv) Any other relief."
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3. Defendant duly appeared upon the service of summons. In the writ- ten statement filed by her, the defendant has taken certain preliminary ob- jections such as that the suit is not maintainable in the present form; the suit is liable to be dismissed on account of the bar contained in Section 41
(h) of the Specific Relief Act, 1963; that the suit is not maintainable by virtue of Order 6 rule 14 A CPC which provides that the plaintiff ought to have provided her correct address in the address form; that the suit is not maintainable as the plaintiff has not filed any site plan and that it is barred by limitation. On merits, the defendant has claimed herself to be the owner in possession of the suit property. It is the case of the defendant that her husband purchased the suit property from Sh. Ajay Gupta vide documents such as Agreement to sell, receipt, Will dated 14.05.1990 and thereafter, he had executed the impugned sale deed in favour of the defendant herein. It is the case of the defendant that while she admits the title of the erstwhile owner Sh. Ajay Gupta to the suit property, the title was never conveyed by the said Sh. Ajay Gupta to the plaintiff but in fact, it was conveyed by him to the husband of the defendant Sh. Narender Dhamija. It is further the case of the defendant herein that the suit property was in the occupation of Sh. Hot Lal Dhamija who attorned his tenancy in favour of the defendant and on 02.12.2009 itself, the said tenant had surrendered his rights and the pos- session of the suit property was handed over to the defendant. The written statement further records the averments of the defendant to the effect that the defendant has duly obtained the mutation with respect to the suit prop- erty in her favour. It is the case of the defendant that while this fact is well within the knowledge of the plaintiff, she chose to file a false and frivolous petition against the said tenant Sh. Hot Lal Dhamija, who was not even re- siding in India at the relevant time, after serving a false legal notice upon the tenant dated 14.02.2011. It is the case of the defendant that the sale deed relied upon by the plaintiff is not sustainable in the eyes of law, as the plaintiff is both the vendor and the purchaser in the said document, and no Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.4 consideration exchanged hands at the time of the execution of the said doc- ument. It is further the case of the defendant that the other chain of docu- ments such as the GPA, Agreement to sell and receipt relied upon by the plaintiff do not pertain to the suit property but to a property bearing no. 1/83 T, as distinct from the suit property which bears the number "IV-1/83- T", and as the power of attorney pertains to 1-83 T, the plaintiff could not have obtained a sale deed with respect to the suit property in her favour on the basis of the said power of attorney. The defendant has further averred in the WS that her application under Order 1 Rule 10 CPC filed in the evic- tion petition of the plaintiff was dismissed after it was observed that title of a party cannot be adjudicated upon in proceedings under Delhi Rent Con- trol Act, 1958. The defendant has averred in the WS that she has already obtained the mutation of the suit property in her favour, and in the present suit, the plaintiff is mala-fidely relying on certain forged and fabricated documents to claim title over the suit property, which is in peaceful posses- sion of the defendant. The defendant has averred in the written statement that on the basis of title documents executed in her favour being the im- pugned sale deed dt. 07.01.1998, the mutation of the relevant record in the Cantonment Board has already been made in favour of the defendant. The defendant has categorically denied the allegations of fraud and forgery and the written statement records her averments to the effect that the documents relied upon by the plaintiff herein are forged and fabricated and the defen- dant is the true and genuine owner of the suit property by virtue of im- pugned sale deed dt. 07.1.1998. It is asseverated in the written statement that the documents relied upon by the plaintiff themselves show overwrit- ing and this is indicative of the fact that the documents relied upon by the plaintiff are tampered / forged documents and do not convey the title to her. It is the case of the defendant that she had already served the legal notice dated 09.03.2011 upon the plaintiff and the plaintiff has concealed the said legal notice and has falsely stated that cause of action of her suit to be ap-
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plication of impleadment under Order 1 rule 10 CPC filed by the defendant herein, in the eviction petition filed by the plaintiff. It is the case of the de- fendant that the plaintiff is well aware that the defendant has the title docu- ments of the suit property in her favour and also has possession of the suit property and the instant suit filed by the plaintiff is barred on the ground of limitation. The defendant has also prayed for dismissal of the suit of the plaintiff as the plaintiff has failed to seek the proper relief of possession of the suit property as well as a declaration of her title over the suit property, and has omitted to file proper court fee. It is the case of the defendant that even on merits, the suit of the plaintiff deserves to be dismissed as it is the defendant who is owner of the suit property and there is no ground for can- cellation of the impugned sale deed dated 07.01.1998 or the GPA, affidavit, receipt etc executed in favour of the husband of the plaintiff.
4. In the replication filed by the plaintiff, the plaintiff has denied the al- legations of the defendant to the effect that the defendant is in possession of the suit property. The plaintiff has specifically averred that the posses- sion of the suit property is with the tenant Sh. Hot Lal Dhamija who has at- torned his tenancy to the plaintiff and therefore, the plaintiff need not seek the relief of possession in the present suit. It is the case of the plaintiff that the defendant's plea that she was given the vacant possession of the suit property is false and has been included in the WS as an afterthought, as no such plea was taken by the defendant in the reply sent by her, to the legal notice of the plaintiff. The plaintiff has categorically denied the title of the defendant over the suit property and has reiterated her contention to the ef- fect that the erstwhile owner of the suit property Sh. Ajay Gupta had sold the suit property to the plaintiff herein and the documents relied upon by the defendant are forged and fabricated. In the replication, the plaintiff has further reiterated that the impugned sale deed dt. 07.1.1998 came to the knowledge of the plaintiff only when the defendant filed an application un- der Order 1 rule 10 CPC to be impleaded as a party in the eviction petition Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.6 filed by the plaintiff against the tenant Sh. Hot Lal Dhamija and as such the above captioned suit has been filed by the plaintiff within the period of lim- itation.
5. On the basis of pleadings, the following issues were settled by Ld. Predecessor of this court:
1) Whether the plaintiff is the owner of the suit property? OPP.
2) Whether the plaintiff is entitled to a relief of declaration, as prayed for? OPP.
3) Whether the plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP.
4) Whether the present suit is not maintainable in its present form? OPD.
5) Whether the present suit is barred by limitation? OPD.
6) Relief.
6. The matter thereafter was fixed for PE.
7. Plaintiff examined herself as a first witness of her case PW1. PW1 in her examination in chief, tendered evidence affidavit Ex. PW1/A. In the said evidence affidavit Ex.PW1/, PW1 has deposed on the lines of the plaint and her testimony is not being reproduced herein on account of brev- ity. PW1 also relied upon the following documents in her testimony:
1. GPA Ex.PW1/12. Affidavit Ex.PW1/2.
3. Receipt in favour of Narender Dhamija are Mark A to Mark C.
4. Copy of sale deed os Narender Dhamija to Sonia Dhamija is Mark D.
5. Letter under RTI dated 03.05.2010 of transfer mutation Mark E. Thereafter, PW1 was duly cross-examined by the defendant at length and discharged.
8. Plaintiff next examined Sh. Gaurav Kumar son of Sh. Nanak Chand, LDC in the office of Sub-Registrar-II, Basai Darapur, New Delhi. The said Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.7 witness was summoned by the plaintiff to produce before the court the ori- ginal sale deed dated 30.12.1993 executed in favour of Smt. Madhu Arora and registered vide registration No. 10216 of Book-I vol. 7535 at Page no . 86-90 along with the site plan. The photocopy of the sale deed was exhib- ited as Ex PW2/1 (colly) (OSR). PW2 was not cross-examined despite op- portunity being given.
9. Plaintiff next examined Ms. Pragya Tiwari, Draughtsman Grade-II, from Delhi Cantonment Board, Delhi Cantt., Delhi-10. This summoned witness testified on oath in his examination in chief that a land admeasur- ing 3.89 acres comprising of Survey No. 52/15, Shastri Bazar, Delhi Cantt. was originally leased out to the firm L Gopi Nath for a period of 30 years and the second and third terms of the lease was renewed uptil 08.06.2022 in favour of Sh. Ajay Gupta. In support of her testimony, PW3 brought on record the copy of the renewal of lease Ex.PW3/1, the renewal of the lease deed in favour of the property Ex.PW3/1, the computerised copy of the General Land Register Ex.PW3/2 as well as third term renewal lease Mark A. In her cross-examination, PW3 deposed that as per the record produced by her in the court, Madhu Arora is neither the owner nor the lessee nor the sub-lessee of any part of the aforesaid property. PW3 was discharged thereafter.
10. Plaintiff next examined Sh. Jai Bhagwan, Asstt. HRA DC office, Jharjhar, Haryana, to prove the power of attorney executed in her favour by Sh. Ajay Gupta on 14.5.1990. The said power of attorney is exhibited as Ex.PW4/1. The exhibition of this document was objected to by the defend- ant on the ground that the document or its copy was not filed earlier on the record by the plaintiff. In his cross-examination, PW4 stated that the record that he has reduced on record is not the photocopy of the document Ex- .PW1/1. PW4 further deposed in his cross-examination that the stamp which is bearing on the reverse side of the document Ex.PW1/1 is not Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.8 present on the record brought by him to the court. PW1 accepted as correct the suggestion that the date mentioned on the document Ex.PW1/1 is 14 th May and the date mentioned brought in the document by him to the record is 14.5.1990. PW4 was discharged thereafter.
11. No other witnesses were examined by the plaintiff and PE was closed vide order dt. 29.09.2016.
12. The matter was then fixed for Defendant's evidence. Defendant ex- amined herself as DW1. In her examination in chief, DW1 tendered her evidence affidavit Ex.DW1/A in which she has deposed on the lines of the written statement. The testimony of DW1 in her examination in chief is not reproduced herein to avoid repetition. DW1 in her testimony also relied upon the following documents:
1.General Power of attorney and agreement to sell dt. 14.5.1990 Ex.DW1/1(OSR) (Colly).
2. Affidavit dt. 14.5.1990 Ex.DW1/2(OSR)
3. Receipt dt. 14.5.1990 Ex.DW1/3(OSR)
4. Sale deed dt. 07.1.1998 Ex.DW2/A.
5. Copy of letter dt.30.10.2000 Mark DA.
6. Postal Receipt Ex.DW1/6(OSR)
7. Legal notice dt. 09.3.2011 Ex.PW1/DX1.
8. Acknowledgment card Ex.PW1/DX2.
DW1 was duly cross examined and discharged.
13. Defendant next examined Sh. Pranav Chaudhary, UDC from the of- fice of Sub-Registrar-IX, Kapashera. In his examination in chief, DW2 pro- duced the sale deed Ex.DW2/A (earlier Marked as Mark D) dt. 08.1.1998 which was registered with the said Registrar office. In his cross-examina- tion, DW2 deposed that he has no personal knowledge of the document. DW-2 was discharged thereafter.
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14. Defendant further examined Sh. Mukesh, Ahlmad from the court of Sh. Sunil Beniwal, Ld. SCJ/RCA/Dwarka, New Delhi as DW3. In his ex- amination in chief, DW3 brought on record the summoned record i.e. court file of case Madhu Arora vs. Hot Lal Dhamija bearing CS No. 4400/16. DW3 deposed on oath that power of attorney dt. 29.4.2011 in the said file brought by him is the same power of attorney which has been filed on the record in the above captioned suit and exhibited the copy of the same as Ex.DW3/A(OSR). DW3 was not cross-examined by the plaintiff despite opportunity being given.
15. Defendant then examined Sh. Ajay Kumar Gupta, s/o S.K Gupta, Ju- nior Engineer, Delhi Cantt. Board as DW4. DW4 was summoned as a wit- ness to prove the certified copy of the letter dt. 30.10.2010 the certified copy of which was exhibited as Ex. DW4/1. In his cross-examination, DW4 accepted as correct the suggestion that the application for the muta- tion of the properties in Delhi Cantt., are filed at the office of Delhi Cantt. Board. DW4 further stated that proposal in context of the mutation regard- ing the property situated in Delhi Cantt., is sent to the Commander office at Chandigarh. DW4 was discharged thereafter.
16. No other witnesses were examined by the defendant and the matter then fixed for final arguments, after DE was closed on 04.08.2017 upon the statement of the counsel for the defendant.
17. While the matter was pending at the stage of final arguments, the plaintiff moved an application for re-summoning PW3 for further evidence and also for summoning an additional witness. This application was filed by the plaintiff on 27.10.2017. Finally, the said application came to be withdrawn by the plaintiff and a fresh application under Section 151 CPC for recalling of Record Keeper of Delhi Cantonment board and for sum- moning Sh. Ajay Gupta as additional witness was filed by the plaintiff on 11.4.2019. Vide order of this court dated 16.11.2019, the application of the Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.10 plaintiff under Section 151 CPC was partly allowed subject to payment of cost of Rs. 5000/- by the plaintiff to the defendant and the plaintiff was al- lowed to summon Sh. Ajay Gupta as an additional witness.
18. Sh. Ajay Gupta was examined by the plaintiff as PW5. In his exam- ination in chief, PW5 deposed that he has perused the document Ex.PW5/1 i.e. agreement to sell dt. 14.5.1990 which has been signed by him at point A on all the three pages. PW5 further deposed that the receipt Ex.PW5/2 has also been signed by him at point B and the affidavit dt. 14.5.1990 Ex.PW5/3 has been signed by him at point C. PW5 was duly cross ex- amined by the defendant at length and discharged thereafter.
19. The matter was then listed for final arguments.
20. During the course of final arguments, ld. Counsel for plaintiff ar- gued that the plaintiff has been able to establish her title over the suit prop- erty by virtue of documents such as GPA etc. executed in her favour by the previous owner Mr. Ajay Gupta. It was argued by ld. Counsel for the plaintiff that even the defendant claims title over the suit property through the said Ajay Gupta but chose not to confront Mr. Ajay Gupta PW5 with the documents executed in his favour. Ld. Counsel for plaintiff adverted to the testimony of PW5 Ajay Gupta and argued that it has been admitted by the predecessor in interest of the plaintiff that he had duly executed the documents with respect to the suit property in favour of the plaintiff and that Mr. Ajay Gupta PW5 denied the execution of any documents with re- spect to the suit property in favour of Mr. Narender Dhamija, which decis- ively proves the case of the plaintiff. It was further argued by ld. Counsel for plaintiff that the plaintiff is entitled to the relief of declaration as the case of the plaintiff has been proved on all the corners of law. It was ar- gued by ld. Counsel for plaintiff that a frivolous objection with regard to the bar of limitation was raised by the defendant, but the suit of the plaintiff is well within limitation as the plaintiff has approached this court immedi-
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ately upon coming to know of the execution of the impugned documents by the defendant in her favour, in the eviction proceedings which were initi- ated by the plaintiff in the court of Rent Controller against Sh. Hot Lal Dhamija, who had the possession of the suit property in the capacity of a tenant. Written arguments have also been filed by the plaintiff on the above same lines. Inter-alia, it has been submitted by the plaintiff in the said written arguments that she has been able to prove the execution of the GPA dated 14.5.1990 in her favour by Sh. Ajay Gupta and consequently the exe- cution of the sale deed dt. 30.12.1993 with respect to the suit property in her favour. It has been specifically argued by the plaintiff that a document can be proved by its executant, and the plaintiff has duly summoned Mr. Ajay Gupta as a witness to the suit who has proved the execution of GPA dt. 14.05.1990 in favour of the plaintiff and the fact that defendant chose not to confront her documents to Mr. Ajay Gupta can lead to the inference that the defendant's documents are forged and fabricated. The written argu- ments further contains the submissions of the plaintiff to the effect that the instant suit is maintainable in the present form even though the plaintiff has not sought the relief of possession as the possession of the suit property is not with the defendant but one Mr. Hot Lal Dhamija and although Mr. Hot Lal Dhamija had surrendered the tenancy in favour of the defendant herein, the plaintiff is still entitled to seek the relief of possession from the defend- ant in appropriate proceedings for eviction of tenant as Sh. Hot Lal Dham- ija ought to have surrendered the possession of the suit premises to the plaintiff herein. It has been argued by ld. Counsel for plaintiff that the suit premises are located in the area which has been notified under Delhi Rent Control Act and therefore the possession of the suit property can be re- covered by the plaintiff in competent proceedings instituted under the said Act and the relief of possession could not have been granted by this court, even if sought by the plaintiff.
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21. Per contra, ld. Counsel for defendant submitted that suit of the plaintiff deserves to be dismissed as it is not maintainable in the eyes of law. It was argued by ld. Counsel for defendant that the plaintiff has admit- ted that she is not in possession of the suit property and further it has been proved on the record that the plaintiff knew that the defendant is claiming title over the suit property and yet chose not to seek declaration of her title over the suit property or the consequential relief of possession. Reliance was placed by the ld. counsel for defendant on the judgment of Hon'ble High Court of Delhi in Virender Gopal Vs. MCD AIR 2007 Delhi 183 to buttress his arguments. Further, ld. Counsel for defendant placed reliance on the legal notice served by the plaintiff upon her alleged tenant Sh. Hot Lal Dhamija, not at the address of the latter but on the address of Ms. Sonia Dhamija. It was argued by the ld. counsel for defendant that the defendant is in possession of the suit property since 2009, and this fact being the knowledge of the plaintiff, the plaintiff ought to have filed the suit for pos- session alongwith the suit for declaration of title over the suit property. Ld. Counsel for defendant argued that the defence taken by the plaintiff that the competent suit will be filed by plaintiff to seek the relief of possession un- der the Rent Control Act is not sustainable in the eyes of law as there is no landlord-tenant relationship between the plaintiff and defendant herein, and it was incumbent upon the plaintiff to seek the relief of possession from this court itself. Ld. Counsel for defendant then drew the attention of this court to the document Ex.PW1/1 and argued that the said power of attorney is executed on a document which although purchased in Kashmere Gate was registered by the plaintiff in the State of Haryana and contains certain blank-spaces. Ld. counsel for plaintiff further argued that the power of at- torney has been executed without mentioning any sale consideration which exchanged hands between the plaintiff and erstwhile owner Sh. Ajay Ku- mar Gupta and all of these circumstances show that the document Ex.PW1/1 relied upon by the plaintiff is forged and fabricated. Ld. Counsel Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.13 for the defendant also pointed out some discrepancies between the docu- ments ExPW1/1 being the power of attorney and sale deed being Ex. PW1/2 such as the dates on which consideration was purportedly paid by the plaintiff to the erstwhile owner of the suit property. Ld. Counsel for de- fendant argued vehemently that the bare perusal of the sale deed dt. 30.12.1993 reveals that the same is a forged and fabricated document as the plaintiff occupies the position of both the seller as well as the buyer in the said document, and such document is unsustainable in law. Ld. Counsel for defendant further argued that the sale deed does not mention the amount of consideration and does not even properly describe the suit property which further reflects upon the fact that the sale deed is a forged and fabricated document. Certain other lacunas such as the use of the pronoun "he" in- stead of "she" in the sale deed; the same being executed in Haryana al- though the suit property is situated in Delhi and being barred by virtue of the Registration Act 1908, were also pointed out by ld. Counsel for defend- ant during the course of final arguments.
22. Written arguments/ submissions were also by the defendant. The argu- ments with regard to the suit being barred by limitation and by virtue of Section 34 of the Specific Relief Act, 1963 have been taken in the argu- ments. Reliance has been placed upon Anathula Sudhakar v. P. Buchi Reddy AIR 2008 Supreme Court 2033 ;Muni Lal v. The Oriental Fire and General Insurance Company Ltd. AIR 1996 SC 642 . Reliance has also been placed upon Virender Gopal v. Municipal Corporation of Delhi AIR 2007 Delhi 183. In the written arguments, the defendant has also adverted to specific portions of the testimony of PW1/plaintiff, wherein she has admitted the possession of the plaintiff over the suit prop- erty, and has argued that the plaintiff ought to have filed a comprehensive suit for possession and declaration of title over the suit property, and the above-captioned suit is not maintainable in the present form.
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23. In rebuttal, it was argued by ld. Counsel for plaintiff that the suit is well within limitation as the notice on which even the defendant relies is dated 2011 and present suit was filed in 2012, well within three years of the date of receipt of the legal notice. Qua the bar of Section 34 Specific Relief Act, it was argued by ld. counsel for the plaintiff that the argument of the defendant cannot be taken into consideration at this stage as no objection with regard to the bar of Section 34 Specific Relief Act has been taken by the defendant in the written statement. Even otherwise, it was argued by ld. Counsel for defendant that instant suit has been filed under Section 31 Specific Relief Act and not under Section 34 thereof, and once the docu- ment of the defendant are cancelled, the documents of the plaintiff shall ipso-facto obtain validity in the eyes of law. It was further argued by ld. Counsel for plaintiff that the possession of the suit premises can be sought only in the proceedings under Delhi Rent Control Act, 1958 and it was not incumbent upon the plaintiff to seek possession of the suit property from the defendant in the instant suit. Ld. Counsel for plaintiff lastly argued that the judgement in Virender Gopal (Supra) does not apply to the facts of the case as in the instant suit the relief of possession is not available to the plaintiff.
24. Heard. Record perused. Considered.
25. My issue-wise findings are as under:
26. ISSUE NO.1.
Whether the plaintiff is the owner of the suit property? OPP.
The onus to prove this issue was upon the plaintiff.
In the considered opinion of this Court, this issue does not arise dir- ectly and substantially in the facts of the case. The case of the plaintiff is that the documents relied upon by the defendant such as GPA, receipt and affidavit purportedly executed by Ajay Gupta PW5 in favour of the defend-
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ant are forged and fabricated. The plaintiff has not claimed declaration of her title over the suit property, and therefore the question of title of the plaintiff over the suit property need not be adjudicated upon. To claim de- claration with regard to the impugned documents, the plaintiff had to show some semblance of rights over the suit property, and as such, the locus of the plaintiff for her to claim the declaration could have been sufficiently es- tablished by the fact that the plaintiff also claims rights over the suit prop- erty by virtue of the documents such as Ex PW1/1 and Ex PW5/1-Ex PW5/3, executed in her favour by Ajay Gupta. At the cost of reiteration, title of the plaintiff is not directly and substantially in issue in the present suit.
Even otherwise, if the view is to be taken that since comprehensive evidence has been led by the parties on the issue of title, and the same may be decided (reliance being placed on the judgment titled Anathula Sud- hakar supra wherein it has been held that even if title is not in issue dir- ectly, but evidence has been led on the point the parties may not be releg- ated to the status of filing a fresh suit and the issue may be decided), the conclusion that would be reached at by this court would be that the plaintiff has not been able to prove her title over the suit property. In the amended plaint the plaintiff has claimed to be the owner of the property bearing No. IV/1/83 built in old Survey No.80, Church Road, Delhi Cantt. and now known as 52/15, Delhi Cantt. situated in Gopi Nath Bazar, Delhi Cantt. It is the case of the plaintiff as stated in the plaint that she purchased the suit property from one Mr. Ajay Gupta by virtue of documents such as agree- ment to sell, receipt, Will all dated 14.5.1990 for valuable consideration and subsequently a sale deed dated 30.12.1993 was also executed with re- spect to the suit property in favour of the plaintiff. In the written statement the defendant has also claimed herself to be the owner of the suit property, and also claims that her right to the suit property has been created by the documents such as agreement to sell, Will etc again dated 14.5.1990, ex-
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ecuted by said Mr. Ajay Gupta in the favour of the husband of the defend- ant, who subsequently executed a registered sale deed of the suit property in favour of the defendant.
Now the husband of the defendant who is the predecessor in interest of the defendant herein, derive his rights only by virtue of document such as GPA, agreement to sell dt.14.5.1990 allegedly executed in his favour by one Mr. Ajay Gupta. The notarised documents Ex.DW1/1 being the GPA, Ex.DW1/2 being the affidavit and Ex.DW1/3 being the receipt are not suf- ficient to convey title in favour of the defendant. The position of the law in this regard has been clarified by the Hon'ble High Court of Delhi in latest pronouncement titled Bishan Chand v. Ved Prakash(Since deceased) THR LRs & Anr. 2018 SCC OnLine Del 11408 wherein it has been held as under:
"14. However, as would be clear from the aforesaid paragraphs, the judg- ment does not lay down any new law or principle and is not pathbreaking and merely reiterates the well settled legal position as always understood in the past as well, Even on request to make the judgment applicable prospectively, it was clarified that SPA/GPA/Will transactions effected prior to the said judgment, could not be treated as completed transfers or con- veyances and could be treated as existing agreements of sale on basis of which conveyance deeds to perfect title could be obtained or specific per- formance sought or defence of Section 53A of Transfer of Property Act, 1882 taken on registration from development authorities sought. It was fur- ther clarified that where on basis of SPA/GPA/Will transactions, mutations had already been effected, such mutations will also not be disturbed on ac- count of the judgment. Supreme Court nowhere said that SPA/GPA/Will transactions of a date prior to the judgment will constitute of a date prior to the judgment will constitute a title. Rather, it was held, they would not. The appellant/plaintiff thus cannot claim that he has title to the property as Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.17 agreement purchaser and the courts cannot declare the appellant/plaintiff to be having title to the property."
Merely because the defendant has placed on record the letter dt. 30.10.2000 executed by the Deputy Director to the Executive Officer of Cantonment Board stating that the defendant is one of the purchasers of built up structures of the property bearing no. IV/1/83 and the same may be regularised is not sufficient to prove her title in favour of the husband of the defendant and consequently the defendant. As there is no valid convey- ance of title in favour of the husband of the defendant, he could not have conveyed the better title to the property then he himself received. There- fore, the defendant also cannot claim perfect title over the suit property. But merely because defendant has not been able to prove qua title over the suit property, does not benefit the plaintiff. The plaintiff is required to prove her case independently.
Now, it is to be examined if the plaintiff has been able to prove her title over the suit property. Foremost, an objection was taken by the defend- ant that while the power of attorney Ex.PW1/1 relied upon by the plaintiff pertains to the property 1/83 T, the sale deed which is plaintiff relied upon pertains to the suit property bearing address IV/1/83, and that the plaintiff has not been able to prove that the two documents pertain to the same prop- erty. This objection can be dismissed straightaway, in view of the admis- sion of DW1 in her cross-examination that a survey number was alloted to the suit property as well as all the properties in the vicinity. The argument of the plaintiff that the property described in the two documents is identical , and the address is slightly varied because of a survey number being accor- ded to the property appears to be resonable. Even otherwise, the identity of the suit property is not in dispute, and the defendant had herself filed an ap- plication for impleadment in eviction proceedings initiated over the same property on which the plaintiff stakes a claim. Besides, perusal of the other Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.18 evidence on the record also reveals that the defendant does not seriously dispute the identity of the suit property.
Plaintiff claims the ownership of the suit property. The claim of the plaintiff is also based upon certain documents such as power of attorney being Ex.PW1/1, agreement to sell Ex.PW5/1, receipt Ex.PW5/2 and affi- davit Ex.PW5/3. The documents Ex.PW5/1 to Ex.PW5/3 were put by the plaintiff to be the additional witness who was summoned at the end of the evidence i.e. Mr. Ajay Gupta. In view of the fact that both the parties claimed their rights to the suit property through said Mr. Ajay Gupta ac- cords a special status to the testimony of the said witness. Surprisingly however, in his examination in chief, the plaintiff only put the questions with regard to the aforesaid three documents Ex.PW5/1 to Ex.PW5/3 to the said witness. Undeniably, the witness testified in favour of the plaintiff and deposed that he has duly executed these documents being the agreement to sell, receipt and affidavit in favour of the plaintiff. PW5 remained consist- ent in his testimony to this effect during the cross-examination as well. However, as has been noted above these documents in the light of the judgement of Hon'ble High Court of Delhi in Bishan Chand (Supra) not sufficient to convey title to the plaintiff. In any event, plaintiff claims her title over the suit property by virtue of a registered sale dt. 30.12.1993. It is the case of the plaintiff that the power of attorney Ex.PW1/1 was executed in her favour by Sh. Ajay Gupta PW5. On the strength of said power of at- torney, the plaintiff states that she executed a sale deed in her own favour which is Ex.PW1/2. It was contended by the defendant that the sale deed Ex.PW1/2 is not a valid conveyance deed as the seller as well as purchaser in the said document is a single person i.e. the plaintiff. Per contra, it was argued by the plaintiff that the sale deed has been executed by her in the ca- pacity of the power of attorney of Mr. Ajay Gupta PW5 as a seller and has been purchased by her in an individual capacity. It is the case of the plaintiff that she occupied two different roles- one as a Seller and one as a Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.19 Purchaser of the suit property and therefore, the sale deed is a valid docu- ment. This court finds favour with the argument of the plaintiff. The ex- ecutant of the sale deed is Ms. Madhu Arora, the power of attorney holder of Mr. Ajay Gupta and the purchaser of the suit property as per said sale deed is Ms. Madhu Arora in her individual capacity. A power of attorney holder has a right to all such acts which the granter of power of attorney could have done. Although it has rightly been argued by the defendant that the power of attorney Ex.PW1/1 does not specifically confer upon the plaintiff the right to sell the property to herself, even if this act could have been impeached as an act of breach of trust, it was only the prerogative of the granter of power of attorney i.e. Sh. Ajay Gupta PW5 to so impeach the transaction. Reliance in this regard can be placed upon the judgement of Hon'ble High Court of Delhi in Ramesh Chand v Suresh Chand & Anr 2012 SCC OnLine Del 1985. However, surprisingly the document on which the plaintiff places reliance being the power of attorney Ex.PW1/1 has not been proved by the plaintiff in accordance with law. The defendant was able to rebut the presumption contained in Section 85 of the Evidence Act in favour of the power of attorney by objecting to the testimony of PW4, who admitted that the power of attorney that she has brought is dif- ferent from the power of attorney Ex PW1/1. The objection raised by the defendant is found to be meritorious, and is decided in her favour. The ex- ecutant of the power of attorney PW5 was not confronted with the docu- ment. The plaintiff did not elicit the testimony of PW5 to the effect that he had executed the power of attorney in the favour of the plaintiff. In fact, PW5 went so far as in his own cross-examination to depose that he does not recall if he had authorized anybody to execute registered sale deed with respect to the suit property. In this backdrop, the other objections taken by defendant such as the blank spaces in power of attorney beng filled by pen later on also assumes importance, in as much as they shake the veracity of the document Ex PW1/1. As such, the plaintiff has miserably failed to Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.20 prove the document ExPW1/1. Further, the sale deed Ex.PW1/2 itself is also suspect. In the sale deed it has been described that the plaintiff was the tenant of Mr. Ajay Gupta PW5 prior to purchasing the property from him. No such averment contained in the plaint. In fact, in the plaint case of the plaintiff that when she purchased of the suit property from Mr. Ajay Gupta, the same was in possession of one Mr. Hot Lal Dhamija, the brother-in-law of defendant as a tenant who had attorned his tenancy in favour of the plaintiff. The recitals of sale deed Ex.PW1/2 are thus contrary to the case of the plaintiff herself making the sale deed suspect. Further, the execution of the sale deed is doubtful in view of the contradictory stands taken by the PW1. In her examination in chief, PW1 has deposed that the sale deed Ex- .PW1/2 was executed in the year 1993 whereas in his cross-examination dated 29.10.2015 PW1 deposed that sale deed was executed in the year 1990, but it was registered in the year 1993. PW1 denied the knowledge of the place from which the stamp papers on which the sale deed was ex- ecuted were purchased. PW1 has further deposed in her cross-examination that power of attorney was prepared in the year 1993, whereas in her exam- ination in chief as well as as per recitals contained in th sale deed Ex.PW1/2, the power of attorney was executed in the year 1990. The testi- mony of the PW1 is replete with contradictions with regard to the execu- tion of the sale deed. In view of these observations, it is concluded that the plaintiff has not been able to prove her title over the suit property. This is- sue is decided accordingly.
27. ISSUE NO.2 & 3.
Whether the plaintiff is entitled to a relief of declaration, as prayed for? OPP.
AND Whether the plaintiff is entitled to a relief of mandatory injunction, as prayed for? OPP.
Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.21
The above issues are being taken up together as they are intercon- nected. Onus qua both these issues was placed upon the plaintiff. It is the case of the plaintiff that the documents relied upon by the defendant GPA, Agreement to sell being Ex.DW1/1, Affidavit being Ex.DW1/2 and receipt being Ex.DW1/3 all dated 14.5.1990 are forged and fabricated documents and have not been executed by PW5 in favour of husband of the defendant. It is averred in the plaint as well as ,along the same lines, in the affidavit of PW1 i.e. plaintiff herein that it is clear that the GPA and agreement to sell relied upon by the defendant are forged and fabricated documents as the GPA has been attested by one Rajender whose name written as Sh. Rajinder Singh S/o. Sh.Krishan Lal r/o. V& PO Dhani, District Sonipat, Haryana and the same Rajinder has witnessed the sale deed executed by the husband of the defendant in favour of the defendant Ex.DW1/4 wherein he de- scribed his address to be B-10A, Manjlis Park, Uttam Nagar, New Delhi. It is the case of the plaintiff that the fact that the same person has described his address to be different in two different documents goes on to show that the documents relied upon by the defendant are fabricated. The defendant put suggestions to the plaintiff PW1 in her cross-examination by putting her case to the plaintiff that the documents Ex.DW1/1 to Ex.DW1/3 are genuine documents and were duly executed in the favour of her husband by Mr. Ajay Gupta. The onus thereafter shifted back to the plaintiff to prove her case. To prove her case, however, the plaintiff was required to lead co- gent evidence on record that the documents relied upon by the defendant are forged and fabricated. No independent witness has been examined by the plaintiff on the record. Further, the plaintiff was given the opportunity at the conclusion of final arguments to summon Mr. Ajay Gupta, through whom both the parties to the suit claim their title. However, in his examin- ation in chief, not a single question was put to the said Mr. Ajay Gupta PW5 to the effect that document relied upon by the defendant are forged and fabricated. The signatures allegedly affixed on the said documents Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.22 were not brought to the notice of the witness PW5. This lacuna, in the opinion of this court, is sufficient to totally negative the case of the plaintiff that the document relied upon by the defendant are forged and fabricated. Merely because DW1 has accepted as correct the suggestion that the docu- ments Ex. DW1/1 to Ex. DW1/3 bear the signatures of Ajay Kumar Gupta instead of Ajay Gupta does not go on to prove that these documents are forged and fabricated. The onus of prove cannot shift only at the denial of this suggestion. It was argued by ld. counsel for the plaintiff that the de- fendant failed to confront her documents to PW5 show that the documents of the defendant are not forged and fabricated. This argument of the de- fendant does not find the favour with this court. The primary onus of prov- ing that the documents relied upon by the defendant are forged was of the plaintiff as per Section 101 of Indian Evidence Act, 1872. It was incum- bent upon the plaintiff that to put questions and to put these documents Ex- .DW1/1 to Ex. DW1/3 to the alleged executant of the documents PW5. As the same was not done, the onus never shifted upon the defendant to prove that the documents relied upon by her are not forged and fabricated. The fact that the plaintiff has omitted to put such an important question to the best witness who was called for examination at the conclusion of the trial and has also failed to lead any independent evidence such as forensic ex- amination of the signatures on the impugned documents to show that the documents relied upon by the defendant Ex.DW1/1 to Ex.DW1/3 are forged and fabricated leads to the conclusion that the plaintiff has failed to discharge the onus placed upon her. Neither the particulars of the forgery have been pleaded, nor proved.
Accordingly, it cannot be held that the plaintiff is entitled to a decree of declaration or the consequential relief of the mandatory injunction as per which the documents deserve to be delivered up cancelled. These issues are decided accordingly.
Cs no. 24/11/2011 26730/2016
Smt. Madhu Arora vs. Smt. Sonia Dhamija
Judgment dt. 20.10.2020 Page no.23
28. ISSUE NO. 4
Whether the present suit is not maintainable in its present form? OPD.
The onus qua this issue was placed upon the defendant. Qua this is- sue, it was pleaded in the written statement, as well as argued by Ld Coun- sel for the defendant that the fact that the plaintiff has failed to seek the re- lief of declaration of her title over the suit property, and the relief of pos- session makes the suit of the plaintiff liable to be dismissed on account of the law laid down by the Hon'ble Supreme Court of India in Anathula Sudhakar.
It is the case of the plaintiff as contained in the plaint that the suit property is in possession of Hotlal Dhamija, as a tenant, and he was already in possession of the suit property at the time the plaintiff purchased the same, and he also attorned his tenancy in favour of the plaintiff.
The defendant's case in the written statement is that she is in posses- sion of the suit property. It is the case of the defendant that the suit property was purchased by her husband from Mr Ajay Gupta PW 5 on 14.05.1990 and the tenant Hot Lal Dhamija attorned his tenancy to the defendant, and thereafter surrendered his tenancy in favour of the defendant on 02.12.2009. The defendant's case is that she has been in possession of the suit property ever since.
To meet the case of the defendant as set out in the written statement, it was averred in the replication that the suit property is in possession of Hotlal Dhamija, who has attorned his tenancy in favour of the plaintiff and the plaintiff has already initiated action by way of an eviction petition. It has further been averred in the replication that even if the vacant possession of the property has been given by the said Hot Lal Dhamija to the defen-
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dant, the plaintiff is still entitled to seek possession of the suit property from the defendant, as an assignee of the tenant Hot Lal Dhamija.
The argument of the plaintiff is liable to be rejected. Firstly, plaintiff is not permitted to take contrary pleas, and the plaintiff should have clearly averred the suit property is in favour of which person. The plaint contains the averments of the plaintiff that the suit property is in possession of the tenant Hot Lal Dhamija. However, in her cross examination PW1 accepted as correct the suggestion that the property is in the possession of the defen- dant. This is contradictory to the case pleaded by the plaintiff. Next, in the replication it was pleaded that even if the defendant is in possession of the suit property, the possession of the defendant is through the tenant, as an assignee thereof, and therefore the plaintiff can recover the possession of the suit property from the defendant in proceedings under Delhi Rent Con- trol Act, 1958. The plaintiff has failed to prove this argument both on the anvil of law and facts. The legal position that the assignee of the tenant can be made to give up possession of a property in eviction proceedings, even if an independent right and title has been set up by the defendant, to the knowledge of the plaintiff, has not been proved by the plaintiff. Further, the plaintiff has failed to prove that the tenant Hot Lal Dhamija ever attorned his tenancy in favour of the plaintiff, making the defendant an assignee of the tenant. In fact, in the cross examination, PW1 admitted that she has no document to prove that Hot Lal Dhamija ever attorned his tenancy in her favour. PW1 further deposed that she had never taken any rent from the said Hot Lal Dhamija, and never executed any rent receipt in his favour. As regards a person (the said Hot Lal Dhamija) the plaintiff had averred in the plaint in 2011 that he is in possession of the suit property, the plaintiff/PW1 deposed in her cross examination dated 22.11.2014 that he has died in America. The testimony of PW1 during her cross examination brings to front the falsity of her claims, and proves that the tenant never attorned his tenancy to the plaintiff. This view is strengthened by the fact that the plain-
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tiff brought no independent evidence on the record to prove that the ten- ancy was ever attorned by Hot Lal Dhamija in favour of the plaintiff. The plaintiff failed to elicit the testimony from Mr Ajay Gupta PW5 that he had asked the tenant to attorn his tenancy in favour of the plaintiff, after selling the property to the plaintiff. In fact, in his cross-examination, PW5 deposed that he does not even remember if Hot Lal Dhamija was the tenant of the suit property at the time when the same was sold to the plaintiff. In view of these circumstances, it can be concluded that the plaintiff has failed to prove on scale of balance of probabilities that Hot Lal Dhamija ever at- torned his tenancy in favour of the plaintiff. As such, the plaintiff cannot ar- gue that she was entitled to seek the possession of the property from the de- fendant herein also in eviction proceedings. The plaintiff/PW1 admitted in her cross examination that the suit property is in possession of the defen- dant. In her cross examination dated 29.10.2015, the plaintiff has further admitted the legal notice Mark PW1/DX1 from the defendant, in which the defendant has claimed to be the owner in possession of the suit property. As such, in view of the law laid down in the judgment titled Anathula Sud- hakar (supra), the plaintiff was required to seek the relief of declaration of her title over the suit property, a cloud being raised over her title, meaning thereby that a doubt has been raised over the title of the plaintiff by the de- fendant on the basis of certain documents. Further, the plaintiff was re- quired to seek the consequential relief of recovery of possession of the suit premises, and as the plaintiff has failed to do so, in view of the bar con- tained in the proviso to Section 34 of the Specific Relief Act, 1963, the suit of the plaintiff is not maintainable. Reliance can also be placed upon the judgment titled Virender (supra).
An argument was raised by Ld Counsel for the plaintiff that the bar of Section 34 of the Specific Relief Act, 1963 doesn't apply to the facts of the case, as the plaintiff has sought the relief of cancellation of documents under Section 31 of the Specific Relief Act, 1963 and not the relief of Dec-
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laration. This argument of the plaintiff is contrary to the first prayer clause in the plaint. Moreover, it is well settled that where an executant of a docu- ment wants to avoid a document, he is bound to seek cancellation, but where a non-executant wants to avoid a document, he is required to seek the relief of declaration instead. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India titled Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors (2010) 12 SCC 112, wherein it has been held as follows-
"Where the executant of a deed wants it to be annulled, he has to seek can- cellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancella- tion and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is differ- ent and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consid- eration stated in the sale deed. If `B', who is a non-executant, is in posses- sion and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- execu- tant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c)provides that in suits for a declaratory decree with conse-
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quential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
As the plaintiff's case is that she is not the executant of the im- pugned documents, she was required by law to claim the relief of declara- tion qua the documents, along with the consequential relief of possession. The suit of the plaintiff is barred as she has failed to claim declaration to her title, and the consequential relief of possession, the suit of the plaintiff is not maintainable in the present form. This issue is accordingly decided in favour of the defendant, and against the plaintiff.
29. ISSUE NO 5.
Whether the present suit is barred by limitation? OPD.
The onus qua this issue was placed upon the defendant. It is the case of the defendant as stated in the WS that the plaintiff was aware of the exe- cution of the impugned sale deed in her favour even prior to the date when the application under Order 1 Rule 10 CPC was filed by the defendant in the eviction proceedings, and therefore the suit of the plaintiff is barred by limitation. It is the case of the defendant, which was admitted by PW1 in her cross examination, that the defendant had served a legal notice dated 09.03.2011 upon the plaintiff. But even from the said date, the suit of the plaintiff is within limitation. Merely obtaining an admission from PW1/ plaintiff that defendant is in possession of the suit property, without any particulars pertaining to the date of her knowledge, is not sufficient to dis- charge this onus. While PW1 has deposed that when she purchased the property, she asked the defendant to not to store her cylinders in the suit property in her cross-examination, this fact alone does not prove the knowl-
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edge of the plaintiff over the continuous possession of the defendant, espe- cially in view of the fact that it is case of the defendant also that when she purchased the suit property, the same was in the possession of Sh. Hot Lal Dhamija and not in her actual possession.
Further, it was argued by ld counsel for defendant that the impugned sale deed in favour of the defendant pertaining to the year 1998 is a regis- tered document, and registration being public notice, the plaintiff is pre- sumed to have knowledge about the impugned document since 1998 itself, making the instant suit for declaration barred by limitation. However, as per Section 3 of the Transfer of Property Act, 1882 registration of a docu- ment operates as notice to only such person who subsequently claims inter- est over the property pertaining to which the registered instrument was exe- cuted. Such not being the case at hand, the plaintiff cannot be presumed to have knowledge about the impugned sale deed since 1998.
Accordingly, as the defendant has failed to discharge her burden qua this issue, this issue is decided against the defendant and in favour of the plaintiff.
30. RELIEF In view of the above observations, the suit of the plaintiff is dis- missed. Costs of the suit are awarded to the defendant.
31. Decree sheet be prepared accordingly.
32. File be consigned to Record Room after compliance with due for- malities.
MEDHA Digitally signed by MEDHA ARYA DN: c=IN, o=DELHI DISTRICT COURTS, 2.5.4.20=84841cfad5222e703d7ccaf19c74324e0fb433 b09058405edbd3955cbadda2b1, ou=DELHI HIGH COURT,CID - 6690543, postalCode=110075, st=Delhi, ARYA serialNumber=4088476eaea612f477c96faca28b4d903 ANNOUNCED IN THE OPEN COURT 7e75de4a472de5aa6726b15235f1c42, cn=MEDHA ARYA Date: 2020.10.20 18:22:40 +05'30' ON 20.10.2020. (MEDHA ARYA) CIVIL JUDGE(SW)/DWARKA COURTS NEW DELHI Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.29 Cs no. 24/11/2011 26730/2016 Smt. Madhu Arora vs. Smt. Sonia Dhamija Judgment dt. 20.10.2020 Page no.30