Delhi District Court
Shri Narender Kumar Gulati vs Delhi Development Authority on 12 July, 2011
Suit No. 902/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 902/2006
Shri Narender Kumar Gulati
S/o Sh. T. R. Gulati
R/o D5/58, Ground Floor
Sector No. XV, Rohini, Delhi85
.......Plaintiff
VERSUS
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi.
........Defendant
DATE OF INSTITUTION : 20.02.1999
DATE OF RESERVATION : 07.07.2011
DATE OF DECISION : 12.07.2011
JUDGMENT: This is a suit for perpetual injunction filed by the plaintiff against the defendants. The facts in brief as averred in the plaint are that:
Narender Kumar Gulati Vs. DDA. 1/11 Suit No. 902/2006
1) The plaintiff is the owner and in possession of the flat bearing No. D 5/58, Sector15, Ground Floor, Rohini, Delhi and the said flat was alloted to Atam Singh Sachhar and after the allotment of the said flat to Sh. Atam Singh Sachhar he sold the same to the plaintiff on the basis of the agreement to sell dated 01.04.1998. That an Agreement, receipt, will and other documents regarding the transfer of the said flat and delivery of possession thereof were also executed in favour of the plaintiff and since then the plaintiff is in actual physical possession of the said flat. It is further alleged that neither the original allottee nor the plaintiff had violated any of the terms and conditions of the allotment however officials of the defendant/DDA without following due process of law are threatening to cancel the allotment and to take forcible possession of the suit property.
The aforesaid factual matrix gave the plaintiff to file the present suit for permanent injunction seeking the relief that a decree of permanent injunction in favour of plaintiff be passed thereby restraining defendant, its official, agents, employees etc from cancelling or revoking the allotment of the flat in question bearing Flat No. D5/58 (ground floor), Sector 15, Rohini, Delhi85 and also from allotting the said flat in question to anybody else and/or dispossessing the plaintiff from the suit Narender Kumar Gulati Vs. DDA. 2/11 Suit No. 902/2006 property.
2) In the written statement filed on behalf of the defendant took the preliminary objection that the plaintiff is neither the allottee nor has any right in respect of the said flat and further a notice under section 53B of the DDA Act has not been served and further stated that this is a case of fake allotment and the case is under investigation with CBI. It is categorically stated that Flat No. D5/58, Sector 15, Ground Floor, Rohini MIG category has not been alloted to the plaintiff by the answering defendant nor possession of the same has been handed over to him. As a matter of fact, it is a case of fake allotment and the case is under investigation with the CBI. The eviction proceedings under the P.P. Act have already been initiated in connection with eviction of the unauthoried occupant over the flat stated above.
3) The plaintiff filed his replication to the written statements of defendant wherein the plaintiff reiterated and reaffirmed the contents of the plaint and contested the averments made by the defendant in the written statement.
4) From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 08.05.2001 : Narender Kumar Gulati Vs. DDA. 3/11 Suit No. 902/2006
1. Whether the suit is bad for want of notice under section 53B of DD Act? OPD
2. Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for? OPP
3.Relief.
5) Plaintiff examined four witnesses i.e. Sh. Ravinder Kumar Gulati as PW1 who relied upon the document Ex. PW1/1 which is site plan. He testified that he is the owner of the flat in question and had purchased the same from one Sh. Baljor Singh on the basis of agreement and even the possession of the same was taken over. However, his examination in chief was deferred and he never entered into the witness box thereafter. Sh. S.S Danaka, Sr. Manager, Central Bank of India entered into the witness box as PW2 and relied on document Ex PW2/1. He deposed that a sum of Rs. 36,700/ was deposited by Atam Singh Sachhar resident of R35, Masjid Road, Shiva Market, Jangpura, New Delhi towards the cost of the flat situated at Sector 15/D5/58, Rohini, Delhi and the has proved the copy of the challan regarding the deposit of the said amount as Ex .PW 2/1. PW 3 Sh. R.T. Aggarwal, Junior Engineer, Civil Circle 14, Rohini, Delhi deposed that the possession in respect of the said flat was Narender Kumar Gulati Vs. DDA. 4/11 Suit No. 902/2006 handed over to Sh. Atam Singh Sachhar on 11.03.1994 on the spot as per the order of Assistant Director (Housing), MIG vide letter dated 0.03.1994 which is Ex PW 3/1. Thereafter the chief examination of this witness was deferred and had not appeared in the witness box thereafter. PW 4 Shri Anil Kumar who through his affidavit Ex. P4 has relied upon the documents Ex.PW1/1 to Ex. PW1/22. Ex. PW 1/1 is the power of attorney, Ex PW 1/2 is agreement to sell, Ex PW 1/3 is GPA, Ex PW 1/4 is SPA. Ex PW1/5 A and PW 1/5B are the affidavits. PW 1/6 is the Will and PW 1/7 is the receipt. PW 1/8 is the agreement to sell, PW 1/9 is the GPA, Ex PW 1/10 is SPA, Ex PW 1/11 is the affidavit and Ex PW 1/12 is Will. Ex PW 1/13 and PW 1/14 are the receipts. Ex PW 1/15 is the challan and Ex PW 1/16 is the certificate issued by Central bank dated 14.11.1996. Ex PW 1/17 is the allotment letter and PW 1/18 is the allotment letter. Ex PW 1/19 is the NOC, PW 1/20 is the cash receipt with DDA, Ex PW 1/21 is letter dated 27.01.1998 and Ex PW1/22 is the site plan.
6) On the other hand, defendant/DDA has examined only one witness. Shri Attal Singh, Asstt. Director, MIG, Housing Department, DDA entered the witness box as DW 1 who vide his affidavit Ex. DW 1/X reiterated the Narender Kumar Gulati Vs. DDA. 5/11 Suit No. 902/2006 contents of the written statement and relied upon documents Ex. DW1/1. Ex DW 1/1 is the allotment letter with respect to Flat No. 59, Pocket 5, BlockD, Sector15, Rohini, Delhi alloted by Sh. M. M. Mehta.
7) My issuewise findings are as follows:
Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for? OPP The onus to prove this issue was upon the plaintiff. The plaintiff examined four witnesses in his support. PW 1 Sh. Ravinder Kumar Gulati as relied upon the document Ex. PW1/1 which is site plan. He stated that he is the owner of the flat in question and had purchased the same from one Sh. Baljor Singh on the basis of agreement and even the possession of the same was taken over. However, his examination in chief was deferred and he never entered into the witness box thereafter. Accordingly testimony of the said witness can not be relied upon.
The second witness appeared on behalf of the plaintiff was Sh. S.S. Danka, Sr. Manager, Central Bank of India. He relied upon the document Ex PW 2/1 which is photocopy of the challan regarding the deposit of Rs 36,700/. However, in his cross examination the said witness has categorically stated that at the time of receiving the payment no confirmation or verification about the fact that the payment is being Narender Kumar Gulati Vs. DDA. 6/11 Suit No. 902/2006 made for allotment is made. Thus the only inference which can be drawn from the document Ex PW 2/1 that sum of Rs. 36,700/ was deposited by the plaintiff vide challan no. 092789. However, no conclusive inference that the said amount was deposited for the allotment of flat in question can be made.
The third witness PW 3 Sh. R.T Aggarwal, Junior Engineer relied on the document Ex. PW 3/1 which is letter dated 04.03.1994 regarding handing over the possession of the flat to Shri Atam Singh Sachhar. However, thereafter his examination in chief was deferred at the objection raised by Ld. counsel for the defendant on the ground that Ex PW 3/1 was mere photocopy. PW 3 never entered into the witness box thereafter nor did the original of the said document was ever summoned by the plaintiff. In view of these circumstances the documents Ex PW 3/1 has not been proved in the eyes of law and therefore can not be relied upon.
The fourth witness Sh. Anil Kumar Arora is the attorney of the plaintiff who reteirated the contents of the plaint and relied upon documents Ex PW 1/1 to PW 1/22. Ex PW 1/1 to PW 1/14 are the various agreement to sell, GPA, Will, receipt purported to have been executed between Baljor Singh and the plaintiff.
Narender Kumar Gulati Vs. DDA. 7/11 Suit No. 902/2006 It is settled law as is held in "G. Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is stated that an agreement of sale is not a document of transfer not by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act.
A similar view has been taken by Hon'ble High Court in "M.L. Aggarwal vs. Oriental Bank of Commerce & Ors" 128(2006) Delhi Law Times 407(DB) wherein it was held that the petitioner had only produced an Agreement to Sell, Will and a Power of Attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under Section 17(1)(b) of the Registration Act, sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell.
The Division Benches of Hon'ble High Court of Delhi in the Narender Kumar Gulati Vs. DDA. 8/11 Suit No. 902/2006 abovesaid judgments clearly enunciate that on the mere execution of General Power of Attorney and Agreement to sell, the right, title or interest qua immovable property are not conferred.
Thus the title of the plaintiff is under cloud and he has not been successful in making out a prima facie case in his favour. Even for the sake of arguments, it is assumed that plaintiff is in lawful possession of the suit property, it can not be presumed that he is the owner of the flat in question in terms of law as aforesaid. Further, the document Ex PW 1/15 which is the challan issued by the Central Bank of India does not support the case of the plaintiff as is already discussed. Further the witness PW 4 in his cross examination himself has categorically admitted that the documents Ex PW 4/17 which is the allotment letter does not bear the date of issuance nor the signatures of the Deputy Director, DDA. In the light of aforesaid discussion, it can be safely inferred that plaintiff has failed to show any substantial evidence to show that the said flat was alloted to Sh. Atam Singh Sachhar from whom the plaintiff alleged to have derive his ownership.
8. Moreover DW 1 has categorically proved that plaintiff Sh.
Narender Kumar Gulati is an unauthorized occupant in flat No. 58, BlockD, Pocket5, Sector15, Rohini, Delhi on the basis of fake Narender Kumar Gulati Vs. DDA. 9/11 Suit No. 902/2006 documents and the said flat was never alloted by DDA to Sh. Atam singh Sachar. Further, the allotment letter bearing No. F.24(1169)/90/RO/NP which is alleged to have been alloted to the plaintiff is actually alloted to one Sh. M.M. Mehta and that to with respect to Flat No. 59, Pocket5, BlockD, Sector15, Rohini, Delhi and not Flat No. 58, Pocket5, Block D, Sector15, Rohini, Delhi. The said document is DW 1/1.
Whether or not the documents have been fabricated upon by the plaintiff is not an issue under consideration before this court and therefore no conclusive finding can be given in this regard but at the same time doubt is raised upon the credibility of the version of the plaintiff, more so in the light of the fact that admittedly there is also a case under investigation by CBI for fake allotment of the flat in question. It is a settled law that grant of injunction is the discretionary relief and in the light of the aforesaid discussion and appraisal of the evidence adduced on behalf of the plaintiff, I am of the considered opinion that no ground for grant of injunction is made out in favour of the plaintiff. Therefore this issue is decided against the plaintiff and in favour of the defendant.
8) Issue No. 1: Whether the suit is bad for want of notice u/s 53 B of the DD Act?OPD Narender Kumar Gulati Vs. DDA. 10/11 Suit No. 902/2006 The onus to prove this issue was on defendant. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53B of DD Act. Moreover, after analysis of provisions of Section 53B, it is clear as per clause (3) of the section in a case of injunction, the mandate of statutory notice is not applicable. This issue is decided accordingly in favour of plaintiff and against the defendant Relief
9) In view of my findings in the issue no. 1, suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 12.07.2011 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 12.07.2011 Narender Kumar Gulati Vs. DDA. 11/11