Delhi District Court
Sh. Naresh Kumar Narang vs Sh. Ram Sewak on 19 March, 2015
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.660/14
Case ID No.02406C0381752010
Sh. Naresh Kumar Narang
S/o Sh. P. R. Narang
R/o A103, Amar Colony,
Ground Floor, Lajpat NagarIV.
New Delhi110024. .............Plaintiff
Versus
1. Sh. Ram Sewak
S/o Late Sh. Raja Ram
R/o B579, Sangam Vihar,
New Delhi.
2. Sh. Raj Pal
S/o Sh. Mukhtiar Singh
R/o 644/2, Devli Gaon,
New Delhi.
3. Smt. Veerwati Siwas
W/o Sh. Mehtab Singh Siwas
R/o 272, Devli Village,
Near Devli Apartments,
New Delhi. ............Defendants
Date of institution :09.06.2009/06.02.2014
Date of reserving the judgment :05.03.2015
Date of pronouncement :19.03.2015
Decision :Decreed
SUIT FOR CANCELLATION OF DOCUMENTS AND INJUNCTIONS
Present: None.
Suit No.660/14
Naresh Kumar Vs. Ram Sewak & Ors. Page no. 1 of 23
JUDGMENT:
The present suit has been filed seeking relief of cancellation of documents i.e. General Power of Attorney, Agreement to Sell, Affidavit,Will and receipt all dated 17.05.1990 executed by defendant no. 3 in favour of Sh. Ram Chander Singh in respect of premises bearing no. C300, Sangam Vihar, New Delhi by declaration that these documents are sham, bogus, forged and invalid. The plaintiff has also sought directions against defendant no. 1 for production of these documents in original. Declaration was also sought for declaring the plaintiff as lawful owner in possession of the plot and lastly plaintiff has sought permanent injunction restraining defendant no. 1 and 2 from claiming any right, title or interest in the property or causing any interference or obstruction in the possession of the plaintiff over the plot. Plaintiff's version as averred in the plaint:
2. Succinctly, it is averred that plaintiff is the owner of plot measuring 50 Sq. yards forming part of Khasra No. 16/24 (Mustatil No.16, Killa No. 44) situated in abadi of C Block, Sangam Vihar, Village Devli, New Delhi now known as plot no. C300, Sangam Vihar, New Delhi (hereinafter referred as "suit property") bound on the East by gali of 18 feet, on the West by a plot of Sh. Ram Chander Singh on the North by a 20 feet wide road and on the South by plot of other. It is averred that property was purchased through documents dated 05.01.1994 from Sh. P. R. Narang and Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 2 of 23 since then plaintiff has been in possession over the plot and a boundary wall was also constructed.
3. The plaintiff also traced the history of the suit property that Sh. P. R. Narang had bought the said plot from Sh. L. B. Mishra vide documents dated 25.03.1991. Sh. Mishra had purchased from defendant no. 3(Smt. Veerwati) vide documents dated 17.05.1990 and she had purchased the plot measuring 200 Sq. Yard from Sh.
Ashok Kumar on 31.07.1984. It was also mentioned that from this plot measuring 50 Sq. Yards was sold to Sh. L. B. Mishra and the remaining portion to some other person. It was further mentioned that Sh. Ashok Kumar had purchased the land measuring 5 Bigha 2 Biswa bearing Khasra no. 16/24 (4 Bigha 16 Biswa) 16/23 min (0.6) Village Devli and covered the entire land into various plots.
4. It is further averred in the plaint that in the first week of June, 2008, the plaintiff was getting the boundary wall repaired when Constable from P.S. Sangam Vihar informed about the pending dispute between defendant no. 1 and 2 inter se which was referred to the court of Ld. SDM U/S 145 Cr. PC. Plaintiff lodged complaints dated 10.06.2008 and 24.06.2008 to the SHO PS Sangam Vihar. The plaintiff got to know that defendant no.1 was claiming ownership of the said plot on the basis of documents dated 07.01.2008 executed by Sh. Sheesh Ram and defendant no.2 was claiming ownership as he was the son of Sh. Mukhyar Singh and alleged that the property was in the name of his father. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 3 of 23
5. It was alleged in the plaint that the ancestors of defendant no. 2 had sold the plot in question about 25 years back and defendant no. 2 has no right or title in the property. A kalandara U/S 145 Cr. PC was prepared upon the dispute between defendant no.1 & 2. Defendant no.1 had also submitted his documents before the court of Ld. SDM to show that Smt. Veerwati had sold the property on 17.05.1990 to Sh. Ram Chander Singh who had sold the property to Sh. Mukesh Kumar on 09.10.1990. Sh. Mukesh Kumar had sold the property to Sh. Sheesh Ram on 12.12.1997, Sh. Sheesh Ram had sold the property to defendant no.1 on 07.01.2008. Plaintiff further alleges that the documents in favour of defendant are forged documents which is apparent from the signatures of defendant no. 3 and also from the back side of the stamp papers based upon the above averments. Therefore the present suit was filed seeking declaration, cancellation of documents, permanent and mandatory injunction was sought. Defendant's version as per written statement:
Defendant no. 1:
6. On notice, defendant no.1 filed the written statement objecting to the maintainability of the present suit on the ground that the plaintiff has no locus standi to file the present suit as he is neither the owner nor in possession of the suit property. It was counter alleged that the documents of the plaintiff were forged and Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 4 of 23 fabricated. Concealment of material facts was also a ground for challenge as mentioned in the written statement.
7. On merits, defendant no. 1 claimed himself to be a actual owner of the suit property. He claimed that suit property was purchased by him from Sh.Sheesh Ram vide Agreement to Sell dated 07.01.2008 for sum of Rs.2,50,000/. It was submitted that defendant no. 3 had sold the property to Sh. Ashok Kumar and Sh.
Ashok Kumar had sold the suit property to Sh. Ram Chander Singh who sold the property to Sh. Mukesh Kumar. Sh. Mukesh Kumar had sold the property to Sh. Sheesh Ram and from him defendant no.1 had purchased the property. It was submitted that defendant no. 2 had filed false complaint against defendant no. 1 at P.S. Sangam Vihar. Rest of the contents of the plaint were denied and it was prayed that defendant no. 1 is owner of the property hence, the present suit be dismissed.
Defendant no. 2:
8. Defendant no. 2 also filed written statement on receipt of notice challenging the maintainability of the present suit and the documents placed on record. It was contended that documents are forged and manipulated by father of the plaintiff and plaintiff. It was submitted that papers alleged to have been executed by Sh. P. R Narang father of the plaintiff were outcome of manipulation & fabrication done by plaintiff who prepared unregistered documents in his name by manipulating and manufacturing a false receipt of Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 5 of 23 payment made to his father. It was averred that the documents filed on record unregistered and have no worth in eyes of law. Description of the property was also challenged. It was submitted that property is under possession of defendant no. 2 and is his ancestral property which has never been sold to any person at any point of time. It was submitted that plot no. is CI384, Sangam Vihar, Village Deoli, New Delhi not C300 as has been averred in the plaint. It was also mentioned that there is no cause of action in favour of the plaintiff. It was also contended that matter is subjudice before Ld. ADJ, Patiala House Court in criminal revision and proceedings U/S 145 Cr. PC captioned as 'State Vs. Rajpal and Ram Sewak' is also pending. Valuation of the suit was questioned.
9. On merits, it was submitted that plot number was wrong, documents have been manipulated and plaintiff is not in possession over the suit property. The boundary wall made by plaintiff was denied along with contents of the plaint. It was prayed that suit be dismissed.
Defendant no. 3:
10. Defendant no. 3 was proceeded exparte in this matter vide order dated 11.12.2009.
Replication:
11. Plaintiff had filed the replication to the written statement filed by defendant no. 1 denying the contents of the written statement maintaining the maintainability of the present matter. It Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 6 of 23 was contended that the plaintiff was the owner in possession of the property and claim sought was reaffirmed. Similarly, replication was filed to the written statement filed by defendant no. 2 as well denying the contents of the written statement and asserting that the plaintiff is owner in possession over the property. Identification of issues:
12. Admission/ denial of the documents was not conducted by the parties. From the pleadings of the parties following issues were framed by Ld. Predecessor vide order dated 18.12.2013. Issue no.1 Whether the suit has been properly valued for the purpose of court fees?OPD Issue no. 2 Whether the plaintiff has no locus standi to file the present suit?OPD1 Issue no. 3 Whether the plaintiff is entitled to a decree for cancellation of documents as prayed for in the plaint?OPP Issue no. 4 Whether the plaintiff is entitled to decree of declaration as prayed for in the plaint?OPP Issue no. 5 Whether the plaintiff is entitled to permanent injunction as prayed for in the plaint?OPP Issue no. 6 Relief.
Evidence:
13. Plaintiff examined following witnesses:
(i) PW1 was the plaintiff who deposed vide his affidavit, Ex.
PW1/A and placed reliance upon the Ex. PW1/1 to Ex. PW1/4, Ex. PW1/19 to Ex. PW1/23 and Ex. PW1/25. Reliance was also placed on Mark A to Mark M. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 7 of 23
(ii) PW2 Mr. Shashi Shankar, Assistant Programmer from the office of the SubRegistrar. This witness was summoned and he filed the status report which was Ex. PW1/1.
(iii) Mr. Sushil Kumar stepped into the witness box as PW3. He was the witness to General Power of Attorney dated 05.01.1994 which is Ex. PW1/1. He identified his signatures at point A on the documents. He also identified his signatures as witness on Agreement to Sell dated 05.01.1994 Ex. PW1/2. Similarly, he also identified his signatures on receipt Ex. PW1/3 and Will dated 05.01.1994.
(iv) PW4 Mrs. Veerwati was also called in witness box. It is pertinent to mention that she is the defendant no.3 in this matter. This witness did not rely upon any documents but admitted her signatures on General Power of Attorney dated 17.05.1990 which was Ex. PW4/1, Agreement to Sell Ex. PW4/2, affidavit Ex. PW4/3, Will Ex. PW4/4 and receipt which is Ex. PW4/5.
(v) Mr. Manoj Kumar, LDC, from the office of the SubRegistrar was summoned as PW5 who brought the Will dated 26.03.1991. The will was exhibited as Ex. PW5/1.
(vi) Sh. Ashok Kumar was summoned as PW5 who identified his signatures on Mark K, Mark L, Mark M and Mark N on the documents thereafter exhibited as Ex.PW6/1 i.e. General Power of Attorney, Agreement to Sell as Ex. PW6/2, Affidavit as Ex. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 8 of 23 PW6/3 and Receipt as Ex. PW6/4 thereafter the evidence of the plaintiff was closed vide a separate statement on 24.05.2014.
14. Defendants no. 1 and 3 were proceeded exparte in this matter vide order dated 29.03.2012. Defendant no.1 cross examined the witnesses therefore, defendant no. 1 was partook in the proceedings, but despite effective opportunities he did not had lead any evidence in this matter.
15. Whereas defendant no. 2 vide a separate statement dated 24.05.2014 stated that he did not wish to lead any evidence in the present matter. This is entire evidence produced by the parties in the present case.
Arguments:
16. Ld. Counsel for plaintiff argued that the plaintiff had purchased the property on 05.01.1994 by executing General Power of Attorney, Agreement to Sell etc. the boundary wall was also constructed in June, 2008 wherein plaintiff came to know proceedings initiated U/S 145 Cr. PC by defendant no. 1 and 2.
Impleadment of plaintiff was dismissed in that proceedings but was allowed in revision petition and as soon as the plaintiff became the party to the proceedings U/S 145 Cr. PC the proceedings were withdrawn by defendant. It was further argued that defendant no. 1 claims to be the owner by alleged General Power of Attorney and Agreement to Sell. From the documents filed by both defendant no.1 and plaintiff show the common link is Smt. Veerwati. Smt. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 9 of 23 Veerwati was impleaded as defendant no. 3 in this matter and was also called as witness in this matter. It was further argued that defendant no. 2 claimed the property to be ancestral. In this back ground, Ld. counsel for the plaintiff argued that no evidence has been led by any of the party. He further argued that it is already established on record that plaintiff is in possession and therefore cancellation has been sought. He further argued that the cancellation can be sought U/S 31 of Specific Relief Act. It was also argued that defendant no. 2 has also failed to prove that he became the owner of the property by succession. He further argued that out of reliefs sought by plaintiff, Relief (b) is now become redundant as documents were never registered and thirdly declaration has been sought that the plaintiff be declared as owner of the property. Plaintiff has fairly conceded that documents have not been registered however the benefit of Section 53, Transfer of Property Act can be granted as documents were executed before amendment. He also placed reliance upon the judgment in RSA No. 50/2013 decided on 07.03.2014 by Hon'ble High Court of Delhi in matter titled as G. P.Sharma Vs Hari Shankar Sharma.
17. On the date fixed for final arguments, Ld. Counsel for defendant no.2 stated that he had instructions not to advance final arguments on behalf of defendant no. 2. Defendant no. 2 was also present in the court and conformed the submissions of his counsel. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 10 of 23
18. I have heard the submissions of Ld. Counsel for plaintiff in this matter. I have also perused the entire case record meticulously. I have gone through various documents, pleadings and testimonies on record My issue wise findings are as below:
Issue no. 1:
Whether the suit has been properly valued for the purpose of court fees?OPD
19. The onus to prove this issue was upon defendant. Both defendants have claimed in their respective written statements that the suit has not been valued properly for the purpose of court fees.
20. From perusal of the plaint, it can be observed that plaintiff has sought relief of cancellation of documents by declaration, mandatory injunction as well as relief of declaration for declaring the plaintiff as owner and further decree of permanent injunction. Valuation of the suit for cancellation of documents is done at Rs. 200/, for the relief of declaration at Rs. 200/ and for the relief of injunction at Rs. 140/. Court fees of Fifty Five Rupees has also been affixed.
21. The claim has arisen from the fact that the plaintiff has sought cancellation of documents. However, it can be clearly observed that plaintiff is not executant of the documents alleged to be sham and bogus. Land mark judgment of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors, (2010) 12 SCC 112 settles the controversy on reading of the aforesaid judgment it Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 11 of 23 holds that where a person is party to a document of which cancellation is sought, such a person must pay advalorem court fee on the consideration as stated in the document. In the present case, the plaintiff is an non executant and can only seek declaration of the documents to declared as non est and therefore, court fees to be affixed be fixed only. Therefore, this issue is decided in favour of plaintiff and against defendants.
Issue no. 2:
Whether the plaintiff has no locus standi to file the present suit?OPD1
22. The onus to prove this issue was upon defendant no. 1. It was the contention of the defendant that the plaintiff does not have any locus to file the present matter. The defendant has not led any evidence to show that the plaintiff does not have any locus to file. Thus in dearth of any evidence, this issue is decided against defendant no.1.
Issue no.3:
Whether the plaintiff is entitled to a decree for cancellation of documents as prayed for in the plaint?OPP
23. The onus to prove this issue was upon plaintiff. The plaintiff has claimed decree for cancellation of documents i.e. General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt all executed on 17.05.1990 by defendant no. 3 in favour of Sh. Ram Chander Singh as sham and bogus documents. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 12 of 23
24. Plaintiff has himself stepped into the witness box as PW1 to establish the case and to corroborate the testimony. He has filed the documents purportedly establishing the tile in his favour. Ex. PW1/1 is General Power of Attorney is executed by Sh. P. R. Narang to Sh. Naresh Kumar Narang dated 05.01.1994. It is correct that this General Power by father to his son. Similarly on the same date of hearing another Agreement to Sell, Receipt and Will were also executed between Sh. P. R. Narang and Sh. Naresh Kumar Narang which is Ex. PW1/2, Ex. PW1/3 and Ex. PW1/4. The plaintiff also produced PW3 Sh. Shushil Kumar who was the witness to the execution of the documents. PW3 also identified his signatures on these documents. Nothing material was extracted from this witness during cross examination done by defendant no. 2.
25. The plaintiff has also placed reliance upon Mark A, Mark B, Mark E and Ex. PW5/1 along with Mark C. These are documents i.e. General Power of Attorney, Agreement to Sell, Will, Affidavit and receipt respectively executed by Sh. L. B. Mishra in favour of Sh. P. R. Narang. The Will dated 26.03.1991 which is exhibited as Ex. PW5/1 was also proved by summoning PW5 from the office of SubRegistrar. This document was part of record maintained by the office of SubRegistrar. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 13 of 23
26. Mark F General Power of Attorney, Mark C Agreement to Sell, Mark J Affidavit, Mark I Will and Mark H Receipt were documents executed by Smt. Veerwati in favour of Sh. L. B. Mishra. Smt. Veerwati is defendant no.3 in the present matter and she was also called as witness i.e. PW4 by the plaintiff. She had deposed that she had purchased the property from Sh. Ashok Kumar and Sh. Lachchhi Ram and that she had sold 100 Sq Yards of the property to Mr. Sharma, 50 Sq. Yards to Mr. Ram Chander Singh, 50 Sq. Yards to Mr. Mishra. She admitted her signatures on the documents dated 17.05.1990 which were then exhibited as Ex. PW4/1 to Ex. PW4/5. During the cross examination of the witness by defendant no. 2 the witness had stated that she did not remember the date when she had singed the documents and she also did not remember the number of the plot. She clearly mentioned that she had not sold the vacant plot rather a boundary wall and room was constructed at the suit premises at that time she had sold the same.
27. Thereafter, the documents i.e. General Power of Attorney, Agreement to Sell, Affidavit, receipt allegedly executed by Sh. Ashok Kumar in favour of Smt. Veerwati were also relied upon by the plaintiff. The plaintiff had called Sh. Ashok Kumar as PW6 in this matter. He had stated that he did not have the original documents of the sale and purchase but identified the documents Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 14 of 23 placed on record and his signatures thereupon and documents were executed as Ex. PW6/1 to Ex. PW6/4.
28. Therefore, the plaintiff has taken efforts to establish the entire chain of the documents. He had averred that Sh. Ashok Kumar had sold the property to Smt. Veerwati who had sold the property to Sh. L. B. Mishra and Sh. L. B. Mishra had sold to Sh. P. R. Narang from whom plaintiff had purchased the property. What needs to be seen is whether this is the same property which is exchanging hands in above mentioned manner.
29. From the documents of the plaintiff i.e. Ex. PW1/1 to Ex. PW1/4 the property has been described as C300 measuring 50 Sq. Yards (11 ½ X 40 feet) out of Khasra no. 16/24 (Mustatil No. 16, Killa No. 44) situated in abadi of C Block, Sangam Vihar, Village Devli, New Delhi. Description of the property is give as:
East Gali 18 feet.
West Plot of Sh. Ram Chander Singh. NorthMain road 20 feet.
SouthPlot of others.
30. From will Ex. PW5/1 executed by Sh. L. B. Mishra in favour of Sh. P. R. Narang it can observed that the property is described in exact consonance. Moving further from documents of Smt. Veerwati executed in favour of Sh. L.B. Mishra again the property is described in exactly same fashion. After looking at the document Ex. PW6/1 to Ex. PW6/5 again the property bears the Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 15 of 23 same Khasra number and block number. Though the area of the property is different as Sh. Ashok Kumar had sold 200 Sq. Yards to Smt. Veerwati. Therefore from the above discussion, it can be observed that it is the same property. At the same time, it can be also observed that none of these documents have been registered, therefore they can not be read in evidence as per Section 49 of the Code of Civil Procedure, 1908 and they also do not confer any title upon the plaintiff.
31. More over, it is worth noting that defendant no. 1 also claims the title over the suit property through similar documents i.e. General Power of Attorney and Agreement to Sell. He traces the property from defendant no. 3 who had sold the property to Sh. Ashok Kumar and Sh. Ashok Kumar had sold the property to Sh. Ram Chander Singh and Sh. Ram Chander Singh had sold the property to Sh. Mukesh Kumar and Sh. Mukesh Kumar had sold the property to Sh. Sheesh Ram from whom defendant no. 1 had purchased the property. The common link seems to be of Smt. Veerwati i.e. defendant no. 3 who has stepped into the witness box as PW4 and has categorically deposed that she had sold the property to Mr. Sharma, Mr. Sharma had sold the property to Sh. Ram Chander Singh and Sh. Ram Chander Singh had sold the property to Sh. Mishra. (50 Sq. yards were sold to Sh. Ram Chader Singh, Sh. Ram Chander Singh had sold the property to Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 16 of 23 Mr. Mishra). Whereas defendant no.1 has mentioned that defendant no. 3 had sold the property to Sh. Ashok Kumar. This is belied by deposition of PW4 rather PW4/ Defendant no. 3 had purchased the property from Sh. Ashok Kumar. Further defendant no. 1 has not filed his documents showing the alleged sale. He has also not stepped into the witness box to support his case or cross examined the witnesses of the plaintiff to refute their testimony. Though these documents have never been proved on the record and have not been tendered in evidence. However, plaintiff has produced these documents with his plaint. These documents have been executed by Smt. Veerwati in favour of Sh. Ram Chander Singh. Property in question is again 50 Sq. yards however it admeasured 12 ½ X 40 feet of the same Mustatil number as well as Khasra number. Khasra number is also same but property is described as below:
East - Gali 18 feet WestRemaining portion of the said plot. North Main Road 20 feet South Plot of others.
32. The area is completely different as area in question of plot purportedly to be of the plot measuring 11½ X 40 feet whereas plot in these documents is a plot measuring 12½ X 40 feet. Similarly, in West, plot purported of the plaintiff is bound by plot of Sh. Ram Chander Singh but in these documents it is bound by remaining portion of the same plot. Therefore these documents are not of the Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 17 of 23 same plot which plaintiff has purported to be his. PW4 had admitted that she had sold the property to Mr. Mishra and to Sh. Ram Chander Singh. Though there is no evidence on record for the court to the conclude that Sh. Ram Chander Singh mentioned in documents at page 40 attached with the plaint is the same Sh. Ram Chander Singh to whom PW4 is referring but it appears to be more than a coincidence.
33. From the documents relied upon by the plaintiff himself, it can be observed that Smt. Veerwati (the common link shown by both defendant and plaintiff) had sold the property of 50 Sq. Yards each to one Sh. Ram Chander Singh and 50 Sq. yards to one Sh. Mishra. The plaintiff had purchased the property which was sold to Sh. Mishra. It is deposed in testimony as well as mentioned in plaint that plot in question is the plot purchased by the plaintiff from his father and this plot was same property from Sh. L. B. Mishra. Therefore the relief documents sought to be declared sham executed by defendant no. 3 in favour of Sh. Ram Chander Singh is of a different plot other than plot purported to be of plaintiff. The distinction can be drawn from the face of the document as property has been differently described in the set of the documents sought to be cancelled and on the set of the documents relied upon by plaintiff. Area of the property is also completely different though resulting in 50 Sq. yards but the property in which the plaintiff Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 18 of 23 claims his possession is described as 11½ X 40 feet and documents which are sought to be declared sham describe the property as 12 ½ X 40 feet.
34. It is the case of the plaintiff that these documents were forged and fabricated. However, the court can not draw the conclusion of forgery and fabrication of the documents but yes, it is apparent on the record that these documents are of a different property than the property in question.
35. As documents are for some other property which appears to be adjacent to the suit property, it has no bearing on the property mentioned in plaint and therefore there is no requirement of any cancellation or declaration of these documents. Therefore relief sought can not be granted and this issue is decided against the plaintiff.
Issue no. 4:
Whether the plaintiff is entitled to decree of declaration as prayed for in the plaint?OPP
36. The onus to prove this issue was upon plaintiff. The plaintiff is seeking declaration that he be declared as the lawful owner in possession of the plot measuring 50 Sq. Yards bearing no. C300, Sangam Vihar, New Delhi.
37. The plaintiff is relying upon the General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt of the property in question. These documents are unregistered can not confer any title upon the plaintiff. Reliance can be drawn upon the Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 19 of 23 Registration Act Section 49 (c). The provision is reproduced as under:
S.49(c) Effect of non registration of documents required to be registered. No document required by Section 17 to be registration shall be received as evidence of any Transaction affecting such property or conferring such power, unless it has been registered.
38. Though the will Ex. PW1/4 does not require compulsory registration but at the same time it is not been averred by the plaintiff that his father has expired and Will can only be applicable once the testator has expired. It can not be forgotten that Will is testament of the testator which is applicable only after the testator has died. Therefore this Will also does not confer any title upon the plaintiff. From the document on record, plaintiff can not be declared as lawful owner in possession over the property.
39. Ld. counsel for the plaintiff placed heavy reliance upon the judgment of G. P.Sharma Vs. Hari Shankar in RSA (Regular Second Appeal) No. 50/2013 decided on 07.03.2014 by Hon'ble High Court of Delhi He argued that even if declaration can not be granted in favour of the plaintiff he has right by virtue of Agreement to Sell to get the benefit of doctrine the part performance U/S 53 A of the Transfer Property Act,1882. The provisions reads as:
S.53A Part performance Where any person contracts to transfer for consideration any immovable property Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 20 of 23 by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract.
and the transferee has performed or is willing to perform his part of the contract.
Then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
40. It can be noted that under provisions of Section 53 A the transferee is entitled to resist any attempt on the part of the transferor or any person claiming under him to disturb tranferee's lawful possession under the contract of sale but in this matter protection is not sought from the transferor or a person claiming under him. In the judgment of G. P. Sharma (Supra), the protection was granted against the transferor. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 21 of 23
41. Hence, in this case, the relief of declaration can not be granted to the plaintiff as his document can not be read in evidence. This issue is therefore decided against the property. Issue no. 5:
Whether the plaintiff is entitled to permanent injunction as prayed for in the plaint?OPP
42. Onus to prove this issue was upon the plaintiff. The plaintiff has sought permanent injunction, restraining defendant no. 1 and 2 from claiming any right, title or interest in suit property and further from interfering or obstructing the peaceful possession of the plaintiff.
43. The plaintiff asserts his possession over the suit property. The defendants asserted their possession but did not produce any evidence to establish their possession. Therefore, it is now a deemed admission of the defendants and also is the unrebutted testimony of the plaintiff. Being in possession, the plaintiff is entitled to peaceful use and occupation.
44. The defendants have not shown their interest in the property and hence, can not interfere or obstruct the peaceful possession of the plaintiff illegally or unlawfully.
45. However, injunction can not be granted against and legal proceedings. I seek guidance from Section 41 (a&b) Specific Relief Act. Hence the blanket injunction against claiming any right interest and so on can not be granted.
46. This issue is accordingly decided in favour of the plaintiff. Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 22 of 23 Relief:
47. Consequent to the detailed findings of issue no. 3,4 and 5 the suit of the plaintiff is decreed only to the extent that he is entitled to relief of permanent injunction against defendant no. 1 and 2 from interfering or obstructing peaceful possession of the plaintiff in the suit property bearing no. C300, Sangam Vihar, New Delhi. The relief of declaration and mandatory injunction as sought can not be granted. The suit be decreed with costs. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 19th March 2015. (TANVI KHURANA) The judgment contains 23 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 19.03.2015 Suit No.660/14 Naresh Kumar Vs. Ram Sewak & Ors. Page no. 23 of 23