Delhi District Court
Bhupinder Singh vs Smt. Shikha Sehgal on 20 March, 2017
IN THE COURT OF MS.NISHA SAXENA: ADJ03 (EAST)
KARKARDOOMA COURTS, DELHI.
CS No.485/16
Bhupinder Singh
S/o Shri Gurbachan Singh
R/o Third Floor of Property
Bearing No.261, Ram Nagar,
Krishna Nagar, Delhi110091.
.........Plaintiff
Versus
1. Smt. Shikha Sehgal
W/o Shri Shally Sehgal
R/o House No.X/599,
Raghubarpura No.1, Gali No.1,
Gandhi Nagar, Delhi110031.
2. Shri Shally Sehgal
Father's Name not known
R/o House X/599,
Raghubarpura No.1, Gali No.1,
Gandhi Nagar, Delhi110031.
.........Defendants
Date of Institution : 25.08.2012
Date of reserving judgment : 20.03.2017
Date of pronouncement : 20.03.2017
CS NO.485/16 1/24
JUDGMENT:
1. The present suit has been filed by the plaintiff for declaration thereby declaring the sale deed dated 19.07.2007, pertaining to third floor of property bearing No.261, Ram Nagar, Krishna Nagar, Delhi 110051 (hereinafter referred to as suit property), as null and void and not binding on the plaintiff and also for grant of the consequential relief of injunction against defendants for restraining them from creating any third party charge on property on the basis of the said sale deed dated 19.06.2007.
PLAINTIFFS' CASE
2. The plaintiff claims to be the owner of the suit property and he along with his family members is residing there. It is alleged that defendant no.2 is a notorious money lender of the area. Both the defendants in conspiracy with each other obtained signatures of the plaintiff on various papers and documents on the plea of securing the amount of loan given to the plaintiff. The plaintiff owed the defendant no.2 a sum of Rs.5.5 lacs on which he was regularly making payment. With malafide intention they coerced the plaintiff to accompany the defendants to the office of SubRegistrar and append his signatures to certain documents holding the same out to be Rent Deed and other supporting documents for payment of monthly rent of Rs.5500/ and also mischievously got executed sale deed of his property. The actual CS NO.485/16 2/24 worth of the property even according to circle rate was much more than the amount of Rs.1,00,000/ claimed to have been paid to the plaintiff as sale consideration. The defendant no.2 similarly duped various other persons grabbing and illegally usurping their properties by adopting the same modus operandi.
2.1 The plaintiff came to know the illegal intentions of the defendants firstly when the defendant no.1 claimed the ownership right in the suit property and demanding payment of rent and seeking to terminate his alleged tenancy vide notice dated 23.06.2012. The said notice was duly replied by the plaintiff vide reply dated 17.07.2012. The defendant no.1 in conspiracy and connivance with defendant no.2 filed a suit for possession and recovery of rent and damages in the court of Shri Pran Lal Ahuja, Ld. Civil Judge, KKD Courts, Delhi.
2.2 It is alleged that the defendants have acted in connivance and conspiracy with each other while getting the sale deed dated 19.06.2007 executed for a sale consideration of Rs.1,00,000/ only; by forging and fabricating documents without paying any consideration to grab the suit property belonging to the plaintiff.
2.3 The plaintiff has, therefore, prayed:
1) for a decree of declaration thereby declaring that the sale deed dated 19.06.2007 in respect of the suit property purported to have been CS NO.485/16 3/24 executed by the plaintiff in favour of the defendant no.1, registered in the office of SubRegistrar VIII, Delhi, as null and void, ineffective and not binding on the plaintiff in any manner whatsoever and further that the sale conducted as such by the defendants is illegal and without consideration
2) for a decree for grant of consequential decree of injunction thereby permanently restraining the defendants, their agents, accomplices, henchmen, representatives and assignees etc. from interfering with the peaceful, continued and settled possession of the plaintiff over the suit property or otherwise selling, transferring, alienating or creating any charge over the suit property or any part thereof in any manner without due recourse to law.
DEFENDANTS CASE:
3. The defendants in their written statement have controverted the averments made in the plaint and taken the preliminary objections that the suit is not maintainable in the eyes of law; that the plaintiff has concealed the true, material and relevant facts and has not come to the court with clean hands; that the present suit is a counterblast to the suit for possession and recovery of rent and damages filed by the defendant no.1 against the plaintiff in the court of Ms. Kiran Bansal, Ld. SCJcumRC (East), KKD Courts, Delhi as well as the complaint case filed by the defendant no.2 u/s 138 of N.I. Act and the present suit is time barred and hence, the same is liable to be dismissed.
CS NO.485/16 4/243.1 It is stated that the defendant no.1 is the owner / landlady of property bearing no.261, 3rd Floor, Ram Nagar, Krishna Nagar, Delhi 110051, by virtue of sale deed dated 19.06.2007. The defendant no.1 let out two room set on the third floor to the plaintiff on a monthly rent of Rs.5500/ excluding electricity and water charges for a period of 11 months commencing from 15.07.2011 to 14.06.2012 and rent deed was signed and executed between the plaintiff and defendant no.1, which was got registered with the SubRegistrar, Delhi, on 05.09.2011. Earlier also rent deeds were executed between the plaintiff and the defendant no.1 from time to time.
3.2 It is submitted that since there were good relations between the plaintiff and defendant no.2, so the plaintiff borrowed a sum of Rs.1,00,000/ from the defendant no.2 as friendly loan and in discharge of his liability, the plaintiff issued four cheques of Rs.25,000/ each. However, only one cheque of Rs.25,000/ was encashed and the remaining three cheques for Rs.25,000/ each were dishonoured on presentation. The defendant no.2 sent a legal notice to the plaintiff thereby calling upon him to make the payment of Rs.75,000/, but despite service the plaintiff failed to make the payment. Finding no other alternative, the defendant no.2 filed a complaint case u/s 138 N.I. Act agaist the plaintiff in the court of Sh. Sanjeev Kumar, Ld. M.M., KKD Courts, Delhi.
CS NO.485/16 5/243.3 It is stated that prior to execution of sale deed, various meetings were held between the plaintiff and the defendants and thereafter the plaintiff agreed to sell out the suit property to the defendant no.1 and after receiving the consideration amount from the defendant No.1, the plaintiff executed the sale deed in the presence of the witnesses before the SubRegistrar concerned.
3.4 It is averred that since the tenancy period expired by efflux of time and the plaintiff failed to make payment of monthly rent, the defendant no.1 sent a legal demand notice and terminated his tenancy. The plaintiff sent a false and frivolous reply dated 17.07.2012 and failed to vacate and handover the suit property to the defendant no.1. Thereafter the defendant no.1 filed a civil suit before Ld. SCJcumRC (East), Karkardooma Courts, Delhi. The status of the plaintiff in the suit property is of unauthorized occupant.
3.5 It is stated that the plaintiff, as per his will and consent and without any pressure, threats, coercion etc. sold out the suit property to the defendant no.1 for a sum of Rs.1,00,000/ and no cause of action ever arose at any point of time and hence, the present suit deserves dismissal.
ISSUES:
4. On the pleadings of the parties, following issues were framed: CS NO.485/16 6/24
1) Whether the suit filed by the plaintiff is not maintainable? OPD.
2) Whether the suit filed by the plaintiff is time barred? OPD.
3) Whether the plaintiff is entitled to a decree for declaration against the defendant thereby declaring that the sale deed dated 19.06.2007 purported to have been executed by the plaintiff in favour of the defendants vide registered sale deed regarding third floor, in property bearing no. 261, Ram Nagar, Krishna Nagar, Delhi110051, as null and void, illegal and without consideration? OPP.
4) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.
5) Relief. PLAINTIFF'S WITNESSES: PW1 Shri Bhupinder Singh, the plaintiff PW2 Shri Jasbeer Singh
5. PW1 Shri Bhupinder Singh, the plaintiff and PW2 Shri Jasbeer Singh have proved their affidavits as Ex.PW1/1 and Ex.PW2/A respectively.
DOCUMENTS RELIEF UPON BY THE PLAINTIFF:
Ex.PW1/A Certified copy of sale deed dated
29.06.2003
Ex.PW1/B Certified copy of rent deed dated
28.07.2010
CS NO.485/16 7/24
Ex.PW1/C Certified copy of rent deed dated
24.08.2011
Ex.PW1/D Copy of complaint to the SHO PS
(colly) Gandhi Nagar and other authorities of
Delhi Police dated 23.08.2012
Ex.PW1/E Copy of postal receipts
(colly)
Ex.PW1/F Copy of reply to the notice sent by the
defendant dated 23.07.2012
Ex.PW1/G Copy of postal receipts
Mark 1 Copy of mortgage agreement dated
23.11.2006
Mark 2 Copy of the mortgage agreement
dated 08.12.2006
Mark 3 Copy of agreement deed dated
11.03.2008
Mark 4 Copy of agreement to sell dated
18.10.2001
Mark 5 (colly) Copy of GPA and other documents
dated 02.08.2000
DEFENDANTS' WITNESSES:
DW1 Ms. Shikha Sehgal
DW2 Sh. Shally Sehgal
6. DW1 Ms. Shikha Sehgal, the defendant no.1 and Sh. Shally Sehgal, the defendant No.2 have proved their affidavits as Ex.DW1/A and Ex.DW2/B.
7. On behalf of the plaintiff written submissions have been filed CS NO.485/16 8/24 and the matter has been argued by Ld. Counsel for the defendant Mr. V.S. Panwar. I have gone through the entire record meticulously and scrupulously including the testimonies and documents proved on record and written submissions.
ISSUE NO.1 Whether the suit filed by the plaintiff is not maintainable? OPD.
8. It has been alleged by the defendants that the suit is not maintainable. As per Order 7 Rule 11 CPC, the plaint can be rejected in the following eventualities: "Rejection of plaint. The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
CS NO.485/16 9/24(e) where it is not filed in duplicate;}
(f) where the plaintiff fails to comply with the provisions of rule 9:} {provided that the time fixed by the Court for the correction of the valuation, or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied tht the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamppaper as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff}.
8.1 A case under Order 7 Rule 11 CPC can be said to be not maintainable only if it does not disclose a cause of action or it is an abuse of process of court. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated. So long as the plaint discloses some cause of action which required determination by the court, mere fact that the plaintiff may not succeed would not be a ground for holding that the case is not maintainable.
8.2 The defendants have not led any specific evidence as to how the suit is not maintainable. The onus was upon the defendants which they have failed to discharge. Accordingly, issue no.1 is decided in favour of the plaintiff and against the defendants.
CS NO.485/16 10/24ISSUE NO.2: Whether the suit filed by the plaintiff is time barred? OPD.
9. In the written statement, the defendants have alleged that the suit is time barred.
9.1 As per Article 58 under Part II of the Schedule of the Limitation Act, 1963, the period of limitation to obtain any declaration is three years from the date the 'right to sue first accrues'. Article 113 on the other hand, which is residuary article states that the period of limitation for any suit for which no period of limitation is provided elsewhere the schedule is three years from the date the 'right to sue accrues'.
9.2 It is often difficult to ascertain when the right to sue accrues specially in the declaratory suits in which there may not even be a clear cause of action. The Hon'ble Supreme Court has analyzed the phrase and laid down guidelines to determine when the right to sue first accrues. The 'right to sue' ordinarily means the right to seek relief by means of legal proceedings. Generally the right sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right ascertained in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
CS NO.485/16 11/249.3 Hon'ble Supreme Court of India has held in Khatri Hotels Pvt. Ltd. and Anr. Vs. Union of India & Anr., [2011] 15 (ADDL) SCR 299: "While enacting article 58 of the 1963 Act, the legislature has designedly made a departure from the language of article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple cause of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrues."
9.4 However, Article 58 may not be applied to a suit where in addition to the declaratory relief, there are other reliefs like injunction or possession etc. To such a suit proper Article is residuary article namely Article 113 of the Limitation Act. However, the fact remains whether we apply Article 58 or Article 113. The period of limitation starts when the right to sue accrues. In the instant case, the plaintiff executed the sale deed in question on 19.06.2007. In his crossexamination, PW1 Bhupinder Singh stated that he came to know that the sale documents were got prepared by the defendants in the year 2007. He admitted that he had filed the present suit after five years from the date of knowledge when he came to know that the sale document were got prepared by the defendants from him. The present suit was filed on 27.08.2012 i.e. beyond a period of three years from the date when the cause of action first accrued.
CS NO.485/16 12/249.5 Accordingly, I am satisfied that the present suit is time barred and issue No.2 is, accordingly, decided against the plaintiff and in favour of the defendants.
ISSUE NO.3 and 4: Whether the plaintiff is entitled to a decree for declaration against the defendant thereby declaring that the sale deed dated 19.06.2007 purported to have been executed by the plaintiff in favour of the defendants vide registered sale deed regarding third floor, in property bearing no. 261, Ram Nagar, Krishna Nagar, Delhi110051, as null and void, illegal and without consideration? OPP.
Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP.
10. Issue No.3 and 4 are interlinked and involve common discussion and therefore both the issues are being decided conjointly.
10.1 Foremost, the cause of action set up in the plaint clearly indicates that the suit is not for declaration but for cancellation of the sale deed on account of a fraud having been committed by the defendants upon the plaintiff.
10.2 Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool CS NO.485/16 13/24 Singh Vs Randhir Singh & Ors., (2010) 12 SCC 112, has held that, "if a person is not a party to a document i.e. document is not admitted to be signed by him then in such a case there is no need of seeking relief of cancellation of the document and it is enough if declaration is sought for. The difference between seeking relief of cancellation of the document and for declaration as regards the invalidity of the document has the effect as held by the Hon'ble Supreme Court on the Court Fees to be payable in the suit because if the suit is for cancellation of the sale deed, court fees will have to be paid as per the value of the sale deed but in a suit for declaration that the sale deed is void, court fees has to be paid only on the amount at which relief sought is valued in the plaint".
10.3 Where the plaintiff is the executant of the document then the proper relief which ought to be sought by the plaintiff is not the declaration qua the document but the cancellation of the document. Where the executant of a deed wants it to be annulled, he has to seek cancellation 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 nonest or illegal or it is not binding on him. In essence both may be suing to have the deed set aside or declared as non binding. But the form is different and court fees is also different. If the executant of the deed seeks cancellation of the deed he has to pay advalorum court fee on the consideration stated in the sale deed. In the case in hand, the plaintiff has paid deficient court fee of Rs.20/ only 10.4 In the present case, though in form the suit is for declaration for CS NO.485/16 14/24 declaring the subject document as null and void, however, such a declaration is being prayed for by a party to that document (the plaintiff). Accordingly, being a party to the document, the plaintiff is actually seeking cancellation as per the ratio in the case of Suhrid Singh @ Sardool Singh (supra), therefore, the suit is actually for cancellation of sale deed.
10.5 However, it is a settled law that the form / heading of the suit is not material and it is the substance which has to be seen and from the substance it is clear that the suit is for cancellation of the document.
10.6 Section 31 of the Specific Relief Act, 1963, deals with cancellation of instruments and three conditions are required to be fulfilled before a relief can be granted under this section.
(i) That the written instrument in question is either void or voidable against the plaintiff
(ii) The plaintiff may reasonably apprehend serious injury from the instrument being left outstanding
(iii) In view of all the circumstances of the case court considers it reasonable and proper to administer the protective and preventive justice asked for.
10.7 It has been submitted on behalf of the plaintiff that the plaintiff had borrowed a loan of Rs.5.5 lacs from the defendants and on the pretext of preparing loan documents, the defendants took him to the Registrar's office at Geeta Colony and got prepared the impugned sale deed.
CS NO.485/16 15/2410.8 Coming to affirmations made in the affidavit, PW1 Bhupinder Singh has stated that defendant no.2 is a notorious money lender of the area. The defendants in conspiracy with each other obtained signatures of the plaintiff on various papers and documents on the plea of securing the amount of loan given to the plaintiff. The plaintiff owed the defendant no.2 a sum of Rs.5.5 lacs on which he was regularly making payment. With malafide intention they coerced the plaintiff to accompany the defendants to the office of SubRegistrar and append his signatures on certain documents holding the same out to be Rent Deed and other supporting documents for covering of the payment of monthly rent interest of Rs.5500/ as rent and also misleading the plaintiff to accept one document which was a sale deed of his property. The actual worth of the property even according to circle rate is much more than the amount of Rs.1,00,000/ claimed to have been paid to the plaintiff as sale consideration.
10.9 In his crossexamination, PW1 Bhupinder Singh stated that he did not know the contents of his affidavit in evidence. He did not ask his Counsel to explain the contents of his affidavit. He did not know the contents of his affidavit Ex.PW1/1. He admitted the photograph affixed on the sale deed Ex.PW1/A as well as his signature and thumb impression at every page. He also admitted that he had put his signatures and thumb impression on Ex.PW1/A at SubRegistrar Office, Shastri Nagar, Geeta Colony, Delhi and at that time the defendant no.1 and 2 were with him.
CS NO.485/16 16/24Apart from the defendants, there were two witnesses who were known to him. The signatures of the witnesses were taken in his presence on the said document. He stated that he did not put his signatures or thumb impression on any document.
10.10 In his crossexamination, PW1 Bhupinder Singh has also testified that in order to repay the loan amount of Rs.1,00,000/, he had given four cheques of Rs.25000/ each to the defendants. He admitted that out of those four cheques, only one cheque was encashed and other three cheques were dishonoured. He admitted that besides the loan of Rs.1,00,000/ he had also taken other loans towards his property from the defendants. He admitted that he never gave any cheques to the defendants towards the repayment of the loan amount except the above four cheques.
10.11 In his crossexamination, PW1 Bhupinder Singh stated that he had not filed any criminal case against the defendants with respect to the aforesaid fraud committed by the defendants.
10.12 One of the contentions of Ld. Counsel for the defendants is that the present suit is a counter blast to the suit filed by the defendant No.1 for possession and recovery of rent and damages. However, in his cross examination the plaintiff denied the suggestion that the case was a counter blast to the case filed by the defendant Shikha Sehgal which was pending in the court of Sh. J.P. Nahar, Ld. Sr. Civil Judge, KKD Courts, Delhi. He stated that he did not remember whether he had received the summons of CS NO.485/16 17/24 the case which was filed by the defendant Shikha Sehgal against him.
10.13 In his crossexamination, PW1 Bhupinder Singh stated that when he went to the Registrar's office for the first time, no one accompanied him from his family. He knew that the documents would be prepared in English language. He knew the witnesses prior to the execution of the documents. He asked the witnesses to explain him the contents of the documents before signing the same. He had not lodged any complaint against the witnesses when he came to know that the defendant got executed a sale deed in her favour in place of a loan agreement. No FIR was registered u/s 420 IPC against the said witnesses.
10.14 The plaintiff has alleged that the defendant No2. is a notorious money lender and he has grabbed the property of many people under the garb of lending them money. However, in his crossexamination, PW1 Bhupinder Singh stated that he could not tell the name of any person who was cheated in the same manner as he was cheated. He could not tell the addresses of those persons. He did not tell his Counsel at the time of preparation of his affidavit about the fact that the defendants must have bribed the staff in the office of SubRegistrar concerned who had helped the defendants in concealing the factum of such documents.
10.15 PW2 Jasbeer Singh who is elder brother of the plaintiff, also stated that he could not tell the name and addresses of other persons with whom the defendant no.2 had played the same trick of lending the money CS NO.485/16 18/24 and grabbing the property.
10.16 PW3 Manjeet Singh, who is nephew of the plaintiff, also stated that he did not know the name and address of any person in the area who had taken loan from the defendant no.2 on interest basis. He could not tell the name and addresses of other persons with whom the defendant no.2 had played the same trick of lending the money and grabbing the property.
10.17 In view of the testimony of the plaintiff and his witnesses, they have failed to prove that the defendant no.2 was a money lender who had grabbed the property of other people under the pretext of providing them loan.
10.18 In his crossexamination, PW1 Bhupinder Singh has also stated that he had not placed any document regarding the loan which he had taken from the defendant. He never tried to obtain the copy of said loan document from the Registrar's office which he had signed in the Registrar's office earlier. He never made any complaint in the Registrar office regarding obtaining of his signatures by the defendant on sale deed in place of loan agreement.
10.19 In his crossexamination PW1 Bhupinder Singh has also stated that two persons were present at the time when he took loan from the defendant namely Manjeet Singh and Jasbir Singh. He did not remember the date, month and year when he took the said loan from the defendant.
CS NO.485/16 19/2410.20 PW2 Jasbeer Singh also stated that he did not know the name and addresses of any person in the area who had taken loan from the defendant no.2 on interest basis. He could not tell who told him that the plaintiff never sold the suit property to the defendant no.1. He did not remember the date, month and year when the plaintiff borrowed a sum of Rs.5,50,000/ from the defendant no.2 in two installments. When the amount was paid only he, the plaintiff and the defendant no.2 were present there. The gap between the two installments was 1 ½ years. He never visited the office of SubRegistrar along with the plaintiff for preparation of sale documents. He did not remember the date of execution of the documents.
10.21 PW3 Manjeet Singh stated that the plaintiff, his maternal uncle told him that he neither sold the suit property to the defendant no.1 nor gave the same on rent basis. He did not remember the date and month, but in the year 20072008 the plaintiff borrowed a loan of Rs.5,50,000/ from the defendant in two installments. When the amount was paid, only he, the plaintiff and the defendant no.2 and some neighbourers were present there. The gap between the two installments was 15 to 20 days. Statement of this witness is in contradiction to the statement PW2 Jasbeer Singh who stated that when the amount was paid only he, the plaintiff and the defendant no.2 were present there. He is silent about the presence of PW3 Manjeet Singh while PW3 Manjeet Singh has not stated about the presence of PW2 Jasbeer Singh. PW2 Jasbeer Singh stated that the gap between the two CS NO.485/16 20/24 installments was 1 ½ years while PW3 Manjeet Singh stated that the gap would be 15 to 20 days.
10.22 Both the witnesses examined by the plaintiff in support of his case do not seem to be truthful. They have not been able to prove that the defendant no.2 loaned an amount of Rs.5.5 lacs to the plaintiff in lieu of which the defendant no.2 fraudulently got the impugned sale deed executed from the plaintiff under the garb of the same being a loan document. Admittedly, both the witnesses were not present when the document in question was executed. Therefore, no reliance can be placed upon their testimony which otherwise also seems to be flawed, distorted and unfounded.
10.23 It is settled law that when in respect of a transaction, a written document is executed, any kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud if made by a party, must specify giving role of each person and all those involved in the fraud, must be made as party. The plaintiff has not brought any specific evidence regarding the manner in which the fraud was committed or could not state anything about the witnesses to the sale deed i.e. Puran and C.P.Srivastava and as to why he did not implead them as a party, if they in collusion with the defendants committed fraud upon the plaintiff.
10.24 I place reliance upon the case of Bharat Dhama Syndicate Vs. Harish Chandra, (1937) 39 BOMLR 963, it has been observed " where a CS NO.485/16 21/24 litigant prefers the charges of fraud or other improper conduct against the party, the Court which is called upon to decide such issues, should compel the litigants to place on record precise and specific details of these charges. Cases of such type will be much simplified if this practice is strictly observed and insisted upon by the Court, even if no objection is taken on behalf of the parties who are interested in disproving the accusations".
10.25 The sale deed Ex.PW1/A is a registered sale deed wherein Sub Registrar has certified that the contents of the document explained to the parties who understand the conditions and admit them as correct. It is also specifically mentioned that the vendor admits consideration of Rs.1,00,000/. Since Ex.PW1/A is a registered document, there is a legal presumption that it is a valid document executed validly as per law. It is well settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questioned the same. The plaintiff has miserably failed to discharge the onus.
10.26 In the written submissions filed by the plaintiff it has been submitted that the impugned sale deed is showing sale consideration of Rs.1,00,000/ which is totally unbelievable as the prevalent rate of property like suit property was above Rs.20 to 25 lacs in the year 2007; that the defendants have never been in possession of the suit property and have given contradictory versions on the point of possession of the suit property. It is further stated that electricity and water connections of the suit property CS NO.485/16 22/24 still exists in the name of the plaintiff which proves the plaintiff's case and the possession of the suit property was never handed over by the plaintiff to the defendants.
10.27 No doubt, there are certain anomalies in their testimony also. Be that as it may, the fact remains that the onus is upon the plaintiff to prove his case. The burden of proving the facts rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it. In the case of Lalita James vs Ajit Kumar, AIR 1991 MP 15, it was observed that:
"It is well settled rule of law that burden of proving his case to obtain from the Court is always on the plaintiff who must adduce reliable and admissible evidence for the said purpose. Section 102 of the Evidence Act contains the broad rule in this behalf and, therefore, provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the rule that the plaintiff must succeed on the strength of his own title and not be sustained by any weakness in the case of defendant."
10.28 The defects in evidence of the party on whom the onus of proof lies cannot be cured by criticism of the evidence of the other party.
10.29 In view of the aforesaid, the plaintiff has failed to prove that he is entitled to any kind of declaration / cancellation in respect of the sale deed CS NO.485/16 23/24 executed in favour defendant No.1 on 19.06.2007 pertaining to third floor of property bearing no.261, Ram Nagar, Krishna Nagar, Delhi110051, as null and void and not binding on the plaintiff.
10.30 I also hold that the plaintiff is not entitled for grant of a decree of permanent injunction in respect of the suit property. Issue No. 3 and 4 are, accordingly, decided against the plaintiff and in favour of the defendants.
ISSUE No.7 RELIEF:
11. In view of the foregoing discussion, the suit of the plaintiff is dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court
Dated: 20.03.2017 (NISHA SAXENA)
Additional District Judge03
East District/ Karkardooma Courts
Delhi
CS NO.485/16 24/24