Delhi District Court
Anis Ahmed vs Sh. Kuldeep Kumar on 3 September, 2007
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IN THE COURT OF SH. SIDHARTH MATHUR, CIVIL JUDGE,
DELHI
IN THE MATTER OF: - Suit No. 468/06
Anis Ahmed
S/o Late Sh. Ali Ahmed
R/o 360, DDA Flats (Top Floor)
Ranjit Nagar, New Delhi - 110 015 ........ Plaintiff
Vs.
Sh. Kuldeep Kumar
S/o Late Sh. Om Prakash
R/o B-2, Tagore Garden Extn.,
New Delhi - 110 027 ......... Defendant
JUDGMENT
1. The present judgment under my hand shall decide the suit of the plaintiff filed herein for relief of declaration and permanent injunction. Before I advert on to adjudicate and decide the present controversy involved between the parties, the facts giving rise to the present suit are required to be narrated and discussed though in brief.
2. The plaintiff has filed the present suit on the basis of the averment that defendant was the owner of the property bearing No. 360, 2 Top Floor, DDA Flats, situated at New Ranjit Nagar, New Delhi (hereinafter referred to as the "suit property"). As per the version of the plaintiff, the suit property was sold by the defendant to the plaintiff through the execution of certain documents, namely, Agreement to Sell, Special Power of Attorney, General Power of Attorney, Affidavit, Possession Letter, Receipt and Will, all dated 03.09.1998 for a total sale consideration of Rs. 60,000/-. The instruments, namely, SPA, GPA and the Will executed in favour of the plaintiff by the defendant were also got registered with the Sub Registrar. In pursuance of these documents, the defendant had even handed over the possession of the suit property to the plaintiff on 03.09.1998.
The plaintiff averred that thereafter, the defendant became dishonest and filed a suit for permanent injunction against the plaintiff, bearing No. 392/98 in the civil court at Delhi. In the said suit, the defendant alleged that he had only executed the registered GPA dated 03.09.1998 in favour of the plaintiff and that he had revoked the GPA, SPA, Will through the registered deeds of cancellation of these documents on 03.11.1998 and consequently, prayed for a decree of permanent injunction therein against the plaintiff from dispossessing the defendant herein from the suit property and also further restraining the plaintiff from alienating/transferring/selling the suit property to anybody else. However, 3 as per the version of the plaintiff, the application U/O 39 Rule 1 & 2 CPC filed in that suit was dismissed.
The plaintiff further urges that the Powers of Attorneys in question were executed for consideration i.e., sale consideration of Rs. 60,000/-, which amount was duly received and acknowledged by the defendant vide receipt dated 03.09.1998, pursuant to which the possession of the property in question was also handed over by the defendant to the plaintiff and as such the defendant had no legal right whatsoever to revoke the GPA, SPA and the Will, all dated 03.09.1998 executed in plaintiff's favour, since they being irrevocable in nature. As such, the plaintiff urges that the said act of cancellation/ revocation of the GPA, SPA and the Will by the defendant, is illegal in nature.
The plaintiff averred that now on the basis of said cancellation / revocation deeds, the defendant has threatened to dispose off/sell the suit property to a third person and the defendant is even trying to negotiate deals in this regard with the third parties. It is further alleged that since the property stood sold to the plaintiff by the defendant after receiving the entire sale consideration, the defendant has no legal power whatsoever to sell the property any further.
In this factual backdrop, the plaintiff has filed the present suit seeking, inter alia, the following reliefs:-
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a) A decree for declaration, thereby, declaring the duly registered revocation/cancellation deeds dated 03.11.1998 executed by the defendant in respect of the suit property as illegal and void, and
b) Decree for permanent injunction against the defendant, his agents / servants, etc., restraining them from selling/alienating/transferring the suit property to anybody else.
3. The summons of the suit were issued against the defendant so as to enable him to appear and answer the claim of the plaintiff and accordingly, the defendant was served in the court itself on11.03.2003. Thereupon, the W.S. was filed by the defendant on 24.04.2003.
In the W.S. apart from denying on merit the averments alleged on behalf of the plaintiff, the defendant even agitated certain preliminary objections. The preliminary objections sought to have been urged on behalf of the defendant, inter alia, includes:-
a) That the plaintiff has not approached the court with clean hands.
b) That the present suit has been filed without any cause of action.
c) That the present suit is a counter blast on behalf of the plaintiff, in view of the factum of filing of the suit for permanent injunction bearing No. 392/98 by the 5 defendant against the plaintiff.
Coming on to the reply on merits, the case of the defendant as being culled out from his W.S. is that the defendant categorically denies the factum of the sale of suit property to the plaintiff on 03.09.1998. The defendant also denies that neither the defendant has received any consideration, much less the sale consideration as alleged by the plaintiff neither the possession of the suit property has been handed over by the defendant to the plaintiff. The defendant bases his defence on his averment that the plaintiff got the signatures of the defendant on certain blank papers and later on used those signed blank papers for the purposes of the Receipt and the Possession Letter, purported to have been executed by the defendant in plaintiff's favour. The case of the defendant further is that the defendant has cancelled the SPA, GPA and the Will, vide registered cancellation deeds dated 03.11.1998. In respect of possession of the suit property being with plaintiff, it is stated by the defendant that the plaintiff has forcibly taken the possession of the suit property from the defendant.
In the light of aforesaid averments, the defendant prays for dismissal of the present suit.
4. In the replication, the plaintiff has reiterated and reaffirmed 6 the stand taken by him in his plaint. However, in the replication it is stated by the plaintiff that the suit filed by the defendant against the plaintiff i.e., Suit No. 392/98 was dismissed in default by the concerned Civil Judge on 02.05.2002 and now an application for restoration of that suit had been moved on behalf of the defendant herein. Apart from it, it is being agitated on behalf of the plaintiff that the defendant in his W.S. has admitted the execution of the documents pertaining to the sale transaction in question with regard to the suit property. As regards the allegation of the defendant, that the plaintiff has forcibly taken the possession of the suit property, it is being stated that the defendant himself had handed over the possession of the suit property to him, consequent upon the execution of the documents dated 03.09.1998.
5. On the basis of the aforesaid allegations and counter allegations, the parties went in to the trial of the present case. However, it is pertinent to mention that even before the issues could have been framed in the present matter, the defendant was proceeded exparte vide order dated 01.11.2003, reason being the non-appearance on behalf of the defendant. Even thereafter, during the course of the complete exercise of trial in the present matter, the defendant remained exparte. Except for filing his defence in form of his W.S., the defendant neither cross 7 examined the plaintiff's witnesses, nor did he adduce any evidence in support of his defence. Instead of contesting the suit, the defendant preferred to remain exparte for the reasons best known to him.
6. In support of his case, the plaintiff apart from examining himself as PW-1, had examined three other official witnesses, namely, PW-2 Sh. Bhupesh Gupta, LDC Record Room Civil, Tis Hazari Courts, Delhi, PW-3 Sh. Bhim Singh, LDC Sub-Registrar Office, Janak Puri and PW-4 Sh. Jagdish Yadav, Record Clerk from the office of Sub-Registrar, Janak Puri, Delhi. Needless to say, neither of these witnesses were put to the test of cross examination on behalf of the defendant, since the defendant was exparte throughout the process of evidence.
7. The plaintiff entered the dock as PW-1 and deposed on oath that the suit property was sold by the defendant to him for a sale consideration of Rs. 60,000/- and that the defendant even executed a receipt in lieu thereof. In the witness box, the plaintiff proved the site plan as Ex. PW-1/2. It was further deposed by PW-1 in the dock that the defendant also executed an Agreement to Sell, Possession Slip, Affidavit, duly registered GPA, Registered SPA, Registered Will, all dated 03.09.1998 in favour of the plaintiff, in token of the sale transaction 8 entered into between the parties in respect of the suit property. The PW-1 further stated in the witness box that the possession of the suit property, consequent upon the execution of the aforesaid documents, was handed over by the defendant to the plaintiff. It was further deposed that the cancellation of the registered GPA, SPA, Will, all dated 03.09.1998 by the defendant on the strength of the respective cancellation deeds (registered) dated 03.11.1998 in respect of the aforesaid registered documents was of no consequence, since, after the execution of the documents dated 03.09.1998, the defendant had no right whatsoever in respect of the suit property. It was further deposed that the plaintiff has become the owner of the suit property by virtue of the documents dated 03.09.1998.
With regard to suit bearing No. 392/98 (New No. 942/02), it was stated on oath by PW-1 that the suit was already dismissed in default and the application filed by the defendant herein for the restoration of that suit was also dismissed by the court of Ms. Ruby Alka Gupta, Ld. Civil Judge, Delhi vide her order dated 05.08.2003 and as such, the suit is now no more existing in the eyes of law. PW-1, during his examination even exhibited the copy of the ration card bearing No. 124746 dated 14.06.2001 issued in his favour at the address of the suit property, as Ex. PW-1/12. Rest of the documents were placed on record in form of the certified copies.
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8. The plaintiff summoned Sh. Bhupesh Gupta, LDC from the record room civil, Tis Hazari Courts, Delhi, with the record of suit bearing No. 942/02 (old No. 392/98) as PW-2. From the record and comparison thereof by PW-2, the agreement to sell dated 03.09.1998 was proved as PW-2/1, the possession slip dated 03.09.1998 as PW-2/2, the receipt dated 03.09.1998 was proved as PW-2/3 and the copy of affidavit dated 03.09.1998 was proved in the dock by PW-2 as Ex. PW-2/4.
The plaintiff had also summoned Sh. Bhim Singh, LDC, from Sub Registrar Office, Delhi with the summoned documents i.e., the GPA, SPA and the Will, all dated 03.09.1998 duly registered with his office together with the deeds of cancellation of GPA and SPA dated 03.11.1998. After comparing the certified copies of these documents with the originals filed thereof, the PW-3 proved the certified copy of SPA dated 03.09.1998 as PW-3/1, that of Will dated 03.09.1998 as PW-3/2, the deed of cancellation of GPA dated 03.11.1998 as PW-3/3, the deed of cancellation of SPA dated 03.11.1998 as PW-3/4 and lastly, the true copy of GPA dated 03.09.1998 was proved as PW-3/5.
PW-4, Sh. Jagdish Yadav after comparing with the summoned record proved the deed of cancellation of Will as Ex. PW-4/1. 10
9. Now, the facts of the case are required to be appreciated in light of the testimonial dispositions of the aforesaid witnesses. If, the testimonies of PW-1 to PW-4 is read and understood in its clear perspective, there are certain facts and documents which have been proved on behalf of the plaintiff beyond any cavil.
It is proved beyond any shadow of doubt that the defendant executed documents Exhibited and proved as PW-2/1, PW-2/2, PW-2/3, PW-2/4, PW-3/1, PW-3/2 and PW-3/5 in favour of the plaintiff on 03.09.1998. The documents proved as PW-3/1, PW-3/2 and PW-3/5 have been proved to be duly registered documents, which fact is evidently and manifestly clear from the testimony of PW-1 and PW-3. It is further proved beyond any iota of doubt that the defendant executed the respective cancellation deeds in respect of documents proved as PW-3/1, PW-3/2 and PW-3/5, by means of registered instruments proved as exhibit PW-3/3, PW-3/4 and PW-4/1 on 03.11.1998. The cancellation deeds are also proved to be registered instruments, as by the testimonial statements of PW-3, PW-4 and even that of PW-1.
The testimony of all these aforesaid witnesses goes unchallenged in absence of any cross examination on behalf of the defendant. Moreover, in the written statement, the defendant has not denied the execution of all the documents dated 03.09.1998 in favour of 11 the plaintiff. The defendant only states that the receipt and the possession letter i.e., Ex. PW-2/3 and PW-2/2 were got signed by the plaintiff on the blank papers. No amount of evidence has come through the defendant so as to substantiate and prove this plea of his. On the other hand, the testimonial disposition of PW-1 read with that of PW-2 categorically proves the execution of PW-2/3 and PW-2/2. Moreover, there is no reason to disbelieve the testimonies of PW-2 and PW-1, since they being unchallenged and un-rebutted.
Although, the defendant has stated that neither he has received any sale consideration from the plaintiff nor he has handed over the possession of the suit property to the plaintiff. In the dock, the plaintiff by means of his unchallenged testimony proved beyond any shackles of doubt that the possession of the suit property was handed over by the defendant to the plaintiff on 03.09.1998. For the reason of being exparte throughout, the defendant neither adduced any amount of evidence so as to substantiate his allegation either with regard to non- receiving of sale consideration, or not handing over the possession of the suit property to the plaintiff. In absence of any adducing of evidence by the defendant, the defendant has miserably failed to substantiate and prove his plea of he being in possession of the suit property. Rather, shockingly and surprisingly, it has come from the horses mouth itself i.e., 12 by the defendant in his written statement, that he has been forcibly dispossessed by the plaintiff and also on the contrary, states in same written statement that he is in possession of suit property. These two pleas taken in his defence by the defendant are difficult to reconcile, since they being in contradistinction with each other. On the basis of appraisal of evidence which has come on record, it is proved that plaintiff is in possession of suit property and the defendant has failed miserably to prove that he was forcibly dispossessed by plaintiff, it can even otherwise be safely inferred that the possession of suit property was handed over by defendant himself to plaintiff. The reason of drawing this inference is that Cardinal Rule of Civil Jurisprudence that in civil cases, the plaintiff is required to show preponderance of probabilities in his favour, he is not required to prove his case beyond reasonable doubt, which is a standard of proof in criminal trials only. Herein, the plaintiff has show preponderance of probabilities w.r.t. his possession over suit property, which being handed over by the defendant itself.
From the appreciation of PW-1, PW-3 and PW-4, it is proved that the GPA, SPA and the Will, all dated 03.09.1998 were duly revoked/cancelled by the defendant on 03.11.1998 by means of registered instruments proved as PW-3/3, PW-3/4 and PW-4/1.
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10. From the appraisal of the aforesaid testimonies and evidence on record, it stands proved that the defendant executed documents Ex. PW-2/1 to Ex. PW-2/4, PW-3/1 to PW-3/2 and Ex. PW-3/5 in favour of the plaintiff on 03.09.1998. It further stands proved that the possession of the suit property was handed over by the defendant to the plaintiff on 03.09.1998 itself, in pursuance of the aforesaid documents and the receipt of sale consideration of Rs. 60,000/-. The plaintiff has also proved the factum of the cancellation of exhibits PW-3/3, PW3/4 and PW-4/1. Although, in order to prove his possession, the plaintiff has placed on record the copy of the ration card issued in his favour at the address of the suit property as PW-1/12, however, the original was not produced and as such it cannot be taken the plaintiff has duly proved the PW-1/12 in accordance with the procedure laid down in Section 62 of the Indian Evidence Act. However, the non-proving of exhibit PW-1/12 is not fatal to the case of plaintiff, reason being that the possession of the plaintiff over the suit property stands established beyond any cavil as discussed by me in the preceding discussion.
Now that it stands established that the documents dated 03.09.1998 were executed by the defendant in plaintiff's favour, whereupon, the possession of the suit property was handed over to the plaintiff and it is also proved beyond doubt that the registered GPA, SPA 14 and the Will, all dated 03.09.1998 were revoked/cancelled by the defendant on 03.11.1998 by means of respective registered documents, the only question which requires my consideration and opinion is that "whether the defendant was legally entitled to revoke the documents Ex. PW-3/1, PW-3/2, PW-3/5?"
11. The Hon'ble High Court of Delhi had the occasion to deal with the same question in the case of "Kuldip Suri Vs. Surinder Singh"
1999 RLR 20. In this precedent, the facts were such the plaintiff executed a Construction Agreement, Receipt, Irrevocable Registered POA, Registered Will, Affidavit, undated letter of repudiation in favour of defendant and accordingly cancelled POA, Will by Cancellation Deeds and sued the defendant for specific performance and possession. The suit was contested by the defendant on ground that plaintiff had sold the plot to him and POA being irrevocable and for consideration could not be revoked. After appraisal of evidence adduced therein, the Hon'ble Single Judge held as follows: -
" 21. Before closing the discussion on this aspect of the matter it needs to be noticed that the plaintiff was not legally competent to revoke the registered irrevocable power of attorney in favour of 15 Sardar Saran Singh as the defendants had paid the entire sale consideration to the plaintiff who had in turn handed over possession of the property to the defendants.......... Section 202 of the Contract Act interdicts termination of agency where an agent has an interest in the subject matter of the agency. The power of attorney executed by the plaintiff expressly stated that it could not be revoked by the plaintiff. In the absence of an express contract permitting termination of the agency, Section 202 of the Contract Act barred such termination."
"22. Therefore, I hold that the registered deed (Ext. P-3) canceling the power of attorney dated March 6, 1978 (Ext. D-7) is of no consequence and the power of attorney Ext.D-7 in favour of Sardar Saran Singh still subsists."
"40. Thus it is clear that doctrine of public policy is a variable concept which must be fine-tuned with demand of time and changing concerns for public good and public interest. Whether in the instant case the above said policy had achieved its desired goal is a question to be considered. The answer is not far to seek. Despite the incorporation of the restrictive clauses in the perpetual sub-leases executed by and between the DDA or L &DO on the one hand and the sub-lesses on the other, properties have been changing hands through, 16 what are known as, power of attorney sales. This has deprived the state of the stamp duty and registration fee chargeable on the sale deeds. Restrictions have created a situation where there is no incentive for observing honesty. Rather the policy has given boost to dishonesty. If such restrictive clauses did not exit, the sellers and buyers would have entered into straight and regular sale transactions resulting in generation of revenue for the State inasmuch as the buyers would have been liable to pay the stamp duty and registration fee. In practice the restrictive clauses have work to the deter of the State. In order to get over the restrictions a method of sale of the property through execution of power of attorney, Wills, affidavits and agreements to sell has been devised. It may be mentioned that Government of India on February 14.02.1992 has introduced a Scheme whereby lease hold properties acquired from the Government can be converted into free hold. This decision also provides for regularisation of power of attorney sales on payment of penalty. The Scheme originally applied to the DDA and the L&DO plots measuring 500 sq. meters. However, by a subsequent office order No. V-11-6/92 dated 14.02.1992 has been made applicable to plots up to 505 sq. meters. Therefore, by virtue of the office order plots measuring up to 505 sq. are to be treated as falling under the 17 Scheme dated 14.02.1992. This policy decision of the Government is an eloquent testimony of the fact that the requirements of public interest change with the times and are not static. A time had come where in keeping with the ground realities the Government has to introduce a Scheme for regularizing the sales on the basis of the power of attorney. Experience shows that unnecessary restrictions lead to deceitfulness in arranging ones affairs. The Government had rightly recognised the need for removal of such restrictions."
"44. The plaintiff illegally cancelled the General Power of Attorney and superseded the Will executed in favour of the defendants only on June 4, 1982. Since this was done by registered documents, a constructive notice thereof to the defendants can be assumed."
12. The question again came up for consideration of Hon'ble High Court of Delhi, though this time before the Division Bench, in case of "Asha M. Jain Vs. Canara Bank & Ors." reported as 94(2001) DLT 841(DB). It has held by the Hon'ble DB that:-
" 13. In order to appreciate the nature of the controversy it is necessary to examine transactions which are called the power of attorney sales in Delhi, normally executed in respect of lease hold 18 properties due to restrictive nature of covenants of the terms of the lease or the terms of allotment.
The Delhi Development Authority undertook the task of land development of Delhi and the process constructed a large number fo flats. The property in question is one such flat. Registered documents were not executed in respect of sale transaction because of the liability to pay unearned increase. The unearned increase is a difference between the market value of the sale and the original cost of purchase a part of which is required under the terms of allotment or conveyance to be paid to the perpetual lessor. The nature of such transaction has been considered by the Delhi High Court in different judgments. In Harbans Singh Vs. Shanti Devi, 1997 Rajdhani Law Reporter 487, it was held that if a person owning a property executing an agreement for sale in favour of a lady and executes a irrevocable power of attorney in respect of the same property in favour of her husband then he cannot cancel or revoke power of attorney on account of interest or right created in the subject matter so as to prejudice the said interest. The provisions of Section 202 of the Contract Act, Section 54 of the Transfer of Properties Act, 1882 and Section 12 of the Registration Act, 1908 were analysed and it was held that the interest in 19 property means right, benefit or advantage whether tangible or intangible.
In Shikha Properties (P) Limited Vs. S. Bhagwant Singh and Ors. 74 (1998) DLT 172=1998 (46) DRJ 286, it was held that cases where agreement to sell is executed with irrevocable power of attorney and full consideration having been paid would be conveyed by Section 202 of the Contract Act since the purchasers deal with such properties practically as owners for fairly long and have "interest" in it. Thus in such a case agent has a interest in property which is the subject matter of the agency and which cannot be terminated to the prejudice of such interest in terms of Section 202 the Contract Act, 1872."
"16. We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power of attorney sales have been recognized as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the present case. There are two General Power of Attorneys, Special Power of Attorney and the Will apart from 20 the agreement to Sell. One of the General Power of Attorney is registered. Further the Will is also registered. Thus there are two contemporaneous documents which are registered and they lend authenticity to the date of execution of documents. The power of attorneys' are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus, there is no doubt that interest has been created in the property in favour of the appellant. Possession is also been handed over. Thus the previous of Section 53A of the Transfer of Property Act would also come into play. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell. The agreement to sell has nowhere reserved any right on the transfer or either for resuming the property or payment of any additional money. The transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have been created in favour of the appellant which cannot be defeated by the attachment order".
13. Keeping in view, the aforesaid legal propositions enunciated by our own High Court, it can be safely inferred that if the irrevocable POA with payment of consideration is executed, then such POA creates 21 interests of transferee in the property and such POA cannot be revoked in view of Section 202 of Indian Contract Act.
In this present case, as well, it has been proved beyond shackles of doubt, that Ex. PW-3/1, PW-3/2, PW-3/5 were executed for consideration, which consideration was duly received by defendant. Consequent thereupon, the possession of suit property was delivered by defendant to plaintiff. Accordingly, it can be safely holded that Ex. PW- 3/1, PW-3/5 were irrevocable in nature, in view of aforesaid law and Section 202 of Indian Contract Act, moreso, when there is no express contract to the effect that Ex. PW-3/1, PW-3/5 could be revoked. The defendant did not bolster his case with evidence so as to prove revokable nature of these POA's. In absence of any evidence by defendant, the case of defendant as to revocation of POA's in question collapses like a proverbial House of Cards. Consequently, the Ex. PW-3/1 and PW-3/5 created irrevocable interest in favour of plaintiff in respect of suit property and as such, act of defendant, thereby revoking the GPA, SPA, Will, all dated 03.09.1998 is illegal being contrary to law.
Even otherwise, the plaintiff was given possession of suit property in part performance of Ex. PW-2/1 and as such he is entitled to protection of S-53-A of Transfer of Property Act, which lays down as under:-
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"53A. Part performance - Where any person contracts to transfer for consideration any immovable property 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 the contract, though required to be registered has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore 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 23 the part performance thereof".
All ingredients of Section 53-A, TPA have been proved to be in existence in present case.
14. In view of the evidence adduced by the plaintiff on record, the plaintiff has been successful in proving his case. On the other hand, the defendant remained exparte and as such, failed to disprove the case set up by the plaintiff or the defence alleged by him in the written statement. After the plaintiff proving his case, the defendant was carry to bowl in his hands to prove his defence, which he has failed.
RELIEF
15. Now coming to the relief of declaration as sought for by the plaintiff in the suit, the perusal of records shows that the cancellation deeds were executed on 03.11.1998, whereas, the present suit was filed on 15.01.2002 so it has become important to him to discuss as to whether the relief of declaration has been sought by the plaintiff within the period of limitation or not.
16. With regard to the relief of declaration, Article 58 of the 24 Limitation Act assumes importance in the present scenario which is reproduced as follows:-
"58 - To obtain any other declaration - period of limitation - 3 years - starting point of limitation - when the right to sue first accrues.
17. The accrual of right to sue means accrual of cause of action for the suit and the cause of action for the suit accrues when the right is asserted by the plaintiff and it is infringed or threatened to be infringed by the defendant. Now, in this case even though, the cancellation deeds were executed on 03.11.1998, however, the cause of action would only arise for the relief of declaration when the interest of the plaintiff in respect of the suit property is infringed or threatened to be infringed by the defendant. It is clear from the meaningful reading of the plaint that only on 13.01.2002, the plaintiff came to know that the defendant is trying to dispose off the suit property to some third party, on which the day third party came to inspect the suit property for the purposes of purchasing it and hence the suit filed for declaration on 15.01.2002 is well within time. Even though the defendant filed a suit bearing No. 392/98 seeking permanent injunction, wherein he had disclosed the factum of cancellation deeds dated 03.11.1998, the mere acquisition of knowledge as to the 25 factum of cancellation of deeds cannot said to have initiated the period of limitation for seeking the relief of declaration as prayed for, since, the said cancellation deeds as discussed by me herein above, were of no legal consequence and had no legal sanctity at all. Merely, because the plaintiff had the knowledge as to the factum of cancellation deeds from the other suit between the parties, cannot be construed as to the infringement of the interest of the plaintiff in the suit property. The interest of the plaintiff with regard to the suit property came to be infringed or being threatened to be infringed by the defendant only when he tried to dispose off / sell the suit property to a third party, which act took place on 13.01.2002 and hence the present relief as has been sought by the plaintiff is well within time.
The other relief sought by the plaintiff herein for the decree of permanent injunction, is also within time and since the plaintiff has been able to establish his irrevocable interest in the suit property by virtue of the irrevocable power of attorneys, all dated 03.09.1998, the said interest of the plaintiff in the suit property is deserved to be protected.
Accordingly, keeping in view my aforesaid discussion on the factual controversy involved between the parties herein and also various legal aspects, as applicable on to those facts, a decree for declaration is hereby passed in favour of the plaintiff and against the 26 defendant and declaring the revocation cancellation deeds dated 03.11.1998 i.e., Ex. PW-3/3, PW-3/4 executed and got registered by the defendant with the office of Sub-Registrar, Janak Puri on 03.11.1998 in respect of the property bearing No. 307, DDA Flats, Top Floor, Ranjit Nagar, New Delhi as being illegal and void.
Further, a decree for permanent injunction is also hereby passed in favour of the plaintiff and against the defendant, restraining the defendant / agents/ servants/ representatives, etc., from selling, alienating or transferring the suit property to anybody else.
In the peculiar facts and circumstances of the case, the cost of the suit are also awarded in favour of the plaintiff and against the defendant. In view of the aforesaid observations, the suit of the plaintiff stands decree. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court 03.09.2007 (SIDHARTH MATHUR) CIVILJUDGE/ DELHI