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[Cites 68, Cited by 0]

Delhi District Court

Sh. Charan Singh vs M/S. Visa Realty Ltd on 7 February, 2020

                      IN THE COURT OF MS. MEDHA ARYA ,
            CIVIL JUDGE, SOUTH­WEST, DWARKA COURTS, NEW DELHI.

Civil Suit No. 26535/16

1. Sh. Charan Singh
2. Sh. Bhagwan Singh
Both sons of Late Sh. Rattan Lal
Both residents of Village Rajokari, Delhi.                     ............. Plaintiffs.

                                                     VERSUS


M/s. Visa Realty Ltd.,
At VISA House, 8/10, Alipore Road,
Kolkata­700027.                                                ......... Defendant.


Date of filing                                                 :            29.10.2010
Date of Institution                                            :            30.10.2010
Date of pronouncing judgment                                   :            07.02.2020


                 SUIT FOR DECLARATION AND PERMANENT INJUNCTION

                                                 JUDGMENT

A BIRD'S EYE VIEW

1. On 02.11.1987, seven sale deeds were allegedly executed in favour of the defendant, by the family members of the plaintiffs herein. Two out of the seven sale deeds have been challenged before this court, and the trial in the two suits have proceeded together. The challenge by way of this suit is to the registered sale deed executed by Mamchand, Rattan Lal and Prabhu as sellers, in favour of the defendant.

2. The ground of challenge to the sale deed is this­ that Sh Rattan lal had already expired on 09.01.1987, and could not have executed the impugned sale deed. PLAINTIFFS' VERSION:

3. The plaintiffs are the sons of late Sh. Rattan Lal. It is the case of the CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 1 plaintiffs that Sh. Rattan Lal was the owner of 1/4th share in the suit property being the agricultural land comprising in Khasra No. 2125 admeasuring (4­16) situated in Revenue Estate of Village Rajokari, Delhi. It is the case of the plaintiffs that their great­grandfather Sh. Sohan was the Bhumidar of the entire agricultural land being suit property. After the demise of late Sh. Sohan, the property was inherited by his two sons Sh. Prabhu and Sh. Hem Raj in equal shares. After the demise of Sh. Hem Raj on 22.7.1976, who was the grandfather of the plaintiffs, one half share of Sh. Hem Raj further devolved upon Sh. Mam Chand as well as Sh. Rattan Lal, the father of plaintiffs. It is the case of the plaintiffs that late Sh. Rattan Lal expired on 09.01.1987, leaving behind the plaintiffs as his legal heirs. As late Sh. Rattan Lal died intestate, the plaintiffs have together become the owners of the 1/4th share of Sh. Rattan Lal in the suit property, having inherited the same simultaneously and equally.

4. It is the case of the plaintiffs that between the period of January 2010 to September 2010, the plaintiffs attained the knowledge of the impugned sale deed dt. 02.11.1987 as well as the mutation order dt. 09.09.1988, vide which their portion of the suit property has been mutated in the name of the defendant, passed upon the impugned sale deed. Thereupon the plaintiffs obtained the certificate copy of the impugned registered sale deed and found out that defendant, in collusion of some property dealers, has obtained a fabricated sale deed with respect to the suit property in his favour. It is the categorical case of the plaintiffs that since their father Sh. Rattan Lal had already expired on 09.1.1987, he could not have executed any sale deed on 02.11.1987, and therefore the impugned sale deed is null and void. It is the case of plaintiffs that impugned sale deed bears the forged and fabricated thumb impressions of Sh. Rattan Lal. It is further the case of the plaintiffs that the impugned mutation order dt. 09.09.1988 obtained by the defendant is also liable to be set aside as no notice was served to the plaintiffs or their predecessor­in­interests before said the mutation with respect to the suit property was sanctioned in favour of the defendant. By way of the present suit, plaintiffs seek the following reliefs:

"a) Pass a decree of declaration declaring the Sale Deed dated CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 2 2.11.1987 in favour of the defendant of 1/4th share of Khasra No. 2125 measuring (2­8) situated in the revenue Estate of Village Rajokari, Delhi vide Sale deed bearing Regn. No. 8455, Addl. Book No. I, Volume No.5964 pages 143 to 146 as null and void.
b) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendants restraining the defendants their agents, employees, attorneys, assigns etc. from transferring, alienating or creating third party interest in the property in suit bearing No. 2125(2­8), situated in the revenue Estate of Village Rajokari, Delhi.
c) Any other relief."

5. Defendant duly entered appearance upon the service of summons. DEFENDANT'S VERSION:

6. In the amended written statement, the defendant has taken certain preliminary objections. It has been averred in the written statement that the suit of the plaintiffs is barred by virtue of the proviso of Section 17 of the Limitation Act read with Article 59 of the Limitation Act, 1963. It has further been averred that the plaintiffs have failed to satisfy the complete particulars of the fraud purportedly done with respect to the impugned sale deed and therefore, the plaintiffs have failed to comply with provision of Order 6 Rule 6 CPC. It has also been averred in the written statement that the suit of the plaintiffs is barred under section 31 & 34 Specific Relief Act 1963 as well as Section 185 of the Delhi Reforms Act, 1955. The defendant has also taken the preliminary objection with regard to the under­valuation of the suit for the purpose of pecuniary jurisdiction as well as court fee. It is also the case of the defendant that the suit of the plaintiffs deserves to be dismissed on account of non­ joinder of necessary parties, since the other executants of the impugned sale deed ( Sh Mamchand and Sh. Prabhu) have not been arrayed as parties to the present suit.

7. On merits, it has been pleaded in the written statement that the impugned sale deed is a composite document duly executed for consideration, which was paid by the defendant as Vendee to all the three co­Vendors of the suit property namely Sh.

CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 3 Mamchand, Rattan Lal and Prabhu.

8. It is the case of the defendant that in total seven sale deeds were executed in favour of the defendant on 02.11.1987 and all these sale deeds were duly registered in the office of Sub­Registrar on the same date and at the same time. The defendant has pointed out in the written statement that Sh. Mamchand ,who is the uncle of the plaintiffs, is also a co­executant of the impugned sale deed alongwith Sh. Prabhu, but neither Mamchand nor Sh. Prabhu have been arrayed as plaintiffs in the present suit. It is the case of the defendant that whereas Sh. Mamchand, a co­executant of the impugned sale deed has filed another suit with respect to another sale deed executed by him in favour of the defendant herein, he has not impugned the sale deed which is the subject matter of the present suit.( It begs reiteration here that another suit, filed by Sh Mamchand as a co­plaintiff, is also pending before this court) It is further the case of the defendant company that all the seven sale deeds which have been executed by land owners as per the Revenue records in favour of the defendant company have been witnessed by another resident of the same village namely Rampat S/o. Sh. Girdhari, who also sold his land to the defendant on 10.8.1987.

9. To defend the mutation order in its favour, the defendant has also relied upon the fact that at the time of mutation, one Sh. Ramji was present in the capacity of the attorney of all the sellers and gave a statement in favour of the defendant before the concerned Revenue Authority, which statement was also confirmed by the village Patwari before the mutation order was passed in favour of the defendant company.

10. It is further the case of defendant that on the date of execution of impugned sale deed i.e. 02.11.1987 the suit property, as per revenue records, was in the name of Sh. Mamchand, Sh. Rattan Lal and Sh. Prabhu and an NOC was duly given by the three co­owners of the suit property, subsequent to which the suit property was sold to the defendant vide impugned sale deed.

11. It is the case of the defendant that although the impugned sale deed is not signed by any representative of the defendant company, the same has been duly executed in favour of the defendant and this fact is corroborated by the NOC issued by CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 4 the Revenue office in favour of the defendant company.

12. An alternate plea of the defence taken by the defendant company in the written statement is that the impugned sale deed was executed in favour of the defendant company in the name of Sh. Mamchand, Sh. Rattan Lal and Sh. Prabhu, and if the plea of the plaintiffs to the effect that Sh. Rattan Lal had passed away prior to the date of execution of the impugned sale deed, fraud which has been played upon the plaintiffs was done by Sh. Mamchand and Sh. Prabhu and not by the defendant company.

13. It is the case of the defendant company that the impugned sale deed was executed on the basis of the no­ objection certificate dt. 28.10.87, which was given by all the three vendors of the impugned sale deed and since the said certificate has not been challenged, the plaintiffs can be deemed to have accepted its validity. The impugned sale deed and certificate dt. 28.10.1987 being composite documents, the plaintiffs cannot seek a declaration merely with respect to the impugned sale deed only. It is further the case of the defendant that the impugned sale deed has been duly registered as per the procedure laid down in the Registration Act and there is a presumption in favour of an official act done having been done rightly. On the basis of these averments, the defendant company has prayed for dismissal of the suit of the plaintiffs.

REPLICATION:

14. Replication to the written statement was filed by the plaintiffs. In the replication, the plaintiffs have reiterated their stand that the impugned sale deed dated 02.11.87 is a forged and fabricated document. It has been averred in the replication that no consideration as mentioned in the impugned sale deed was ever received by any of the executants of the impugned sale deed. It is the case of the plaintiffs that the defendant and its associates had the knowledge of the death of Sh. Rattan Lal, who is one of the executants of the impugned sale deed, at the time when the said sale deed was executed. It has further been asseverated in the replication that the mutation with respect to the suit property which has been carried out on the basis of impugned sale CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 5 deed is also bad in law, and the same was done by the concerned Revenue Authority without following due procedure. The plaintiffs have reiterated their case of being in settled possession of the suit property. The plaintiffs have further reiterated and re­ asserted their case as set out in the plaint in the replication. ISSUES:

15. On the basis of the pleadings, the following issues were settled by the Ld. Predecessor of this court vide order dt. 03.11.2015:­
1. Whether the suit of the plaintiffs for declaration and permanent injunction is within the limitation? OPP.
2. Whether the plaintiffs are in possession of the suit property? OPP.
3. Whether the suit is barred u/s. 34&31 of Specific Relief Act, 1963? OPD.
4. Whether this court has no jurisdiction in terms of provisions of Section 185 of Delhi Land Reforms Act, 1954? OPD.
5. Whether the suit has been under value by plaintiffs for the purpose of court fee and jurisdiction? OPD.
6. Whether the suit of the plaintiffs is barred on account of non­joinder of necessary parties?OPD.
7. Whether the sale deed dt. 02.11.1987 was duly executed and validly registered in favour of defendant? OPD.
8. Whether the suit of the plaintiffs is not maintainable for want of necessary particulars in terms of Order 6 R 4 CPC? OPD.
9. Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP.
10. Whether the plaintiffs are entitled for relief of permanent injunction, as prayed for? OPP.
11. Relief.
16. Thereafter, matter was then fixed for P.E. PLAINTIFF'S EVIDENCE
17. On behalf of plaintiffs, plaintiff no.1 Sh. Charan Singh took the witness stand as PW1. In his evidence by way of affidavit Ex.PW1/A, PW1 deposed on the lines similar to the plaint, and the contents of his testimony are not being reiterated in the interest of brevity. PW1 also relied upon the following documents in his examination in chief:
a. Khatauni Ex.PW1/1
CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 6 b. Death certificate of Hem Raj Ex.PW1/2 c. Sale deed Ex.PW1/3.
PW1 was discharged after being cross­examined at length.
18. Plaintiffs next examined Sh. Mahender Singh as PW2. In his cross­ examination in chief conducted on the affidavit bearing Ex.PW2/A, PW2 deposed that he is a permanent resident of the village of the plaintiffs, and has been long acquainted with the plaintiffs and their predecessor­in­interest. PW2 deposed to the effect that suit property was inherited by the plaintiffs after the death of their father Sh. Rattan Lal on 09.01.1987. PW2 also deposed to the effect that neither Sh. Hem Raj nor Sh.

Rattan Lal had sold any land under the impugned sale deed dt. 02.11.1987 as Sh. Rattan Lal had already expired on 09.1.87. PW2 was also cross­examined at length by defendant before being discharged as a witness.

19. Ms. Renu Mann from the office of Sub­Registrar (Birth & Death), Najafgarh Zone, SDMC, New Delhi was examined as PW3 by the plaintiffs. In her examination in chief, PW3 deposed that on the basis of the order No. death/9/92/640/18/11/2010/9621014141 dated 07.12.2010 passed by Executive Magistrate, Vasant Vihar and registration fees dt. 03.1.2011, which documents are Ex.PW3/A (Colly) (OSR), the Death Registration Certificate bearing No. 4323650 dt. 27.1.2011 was issued in respect of the death of Sh. Hem Raj. PW3 also deposed that as per the record maintained by the office being the original death registration register, Sh. Rattan Singh Yadav had died on 09.1.87 and his death was registered at Sr. No.2 in the aforementioned register. Copy of the relevant page of register was exhibited as Ex.PW3/B (OSR) (Two pages). PW3 was also cross­examined at length by ld. Counsel for defendant and was discharged thereafter.

20. Plaintiff next examined Sh. Mahender Narain Shukla as PW4. In his examination in chief PW4 deposed that he is working as Purohit in Garh Mukteshwer and it is his work to do the necessary rituals for "Asthi Viserjan" (part of the last rites of Hindu) at Garh Mukteshwer for his clients and maintaining the record of the same. PW4 further deposed that he has brought the record of last 100 to 200 years with him CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 7 to court. As per the record brought by him to the court on that date, PW4 deposed that Sh. Rattan Lal s/o. Sh. Hem Raj had visited the Garh Mukteshwar on the Vikrami Sanwant 2033 for "Asthi Viserjan" of his father Late Sh. Hem Raj. PW4 further deposed that as per the record available with him one Sh. Ram Mehar S/o. Sh. Mula Ram had visited Garh Mukteshwar for "Asthi Viserjan" of Sh. Rattan Lal on Kartik Sudhi 6 Vikrami Sanwat 2043 i.e. 06.11.1986. PW4 was duly cross­examined and discharged.

21. Plaintiffs next examined Sh. Rajender Kumar, Patwari, Record Room, SDM Office Mehrauli as PW5. PW5 exhibited the original mutation record bearing No. 713/81­82 as Ex.PW5/1 and the mutation file bearing No. 868/88­89 as Ex.PW5/2. PW5 was cross­examined by defendant and discharged. No other witnesses were examined by the plaintiffs and PE was closed vide statement of ld. Counsel for plaintiffs dt. 20.9.2016. the matter was then fixed for D.E. DEFENDANT'S EVIDENCE.

22. As its first witness, defendant examined its AR. Examination in chief of DW1 was conducted on an affidavit bearing Ex.DW1/A. In his examination in chief, DW1 also relied upon the following documents:

1. Original Board Resolution dt. 22.9.2016 Ex.D­1/1.
2. Sale deed no. 8454 dt. 2.11.1987 Ex.D­1/2(OSR).
3. Sale deed no. 8460 dt. 2.11.1987 Ex.D­1/3(OSR).
4. Sale deed no. 8459 dt. 2.11.1987 Ex.D­1/4(OSR).
5. Sale deed no. 8455 dt. 2.11.1987 Ex.D­1/5(OSR).
6. Sale deed no. 8458 dt. 2.11.1987 Ex.D­1/6(OSR).
7. Sale deed no. 8456 dt. 2.11.1987 Ex.D­1/7(OSR).
8. Sale deed no. 8461 dt. 2.11.1987 Ex.D­1/8(OSR).
9. Registration receipts dt. 2.11.1987 Ex.D­1/9, Ex.D­1/10 and Ex.D­1/11 respectively(OSR).
10. Khatauni is Ex. D­1/12 (OSR),
11. Aks Shizra Ex.D­1/13 (OSR).

CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 8

12. Copy of receipts of payments made to the plaintiff as well as to other farmers Ex.D­1/14 and Ex.D­1/15 to Ex.D­1/15A and Ex.D­1/16 respectively (OSR).

13. Receipts of payment made to other farmers Ex. D­1/17(OSR) and Ex.D­1/18(OSR)

14. Khasra Girdawari for the year 1994­95, 1995­96, 1996­97, 1997­98, 1998­99, 2000­01, 2001­02, 2002­03, 2003­04, 2004­05, 2005­06, 2006­07, 2007­08, 2008­09, 2009­10, 2010­11, 2011­12, 2012­13, 2013­14 and 2014­15 Ex.D­1/21 to Ex. D­1/40 and relevant entries are marked at point A respectively (OSR).

15. Copy of Khasra Girdawari for the year 1990­91, 1993­94 Mark X and Y.

16. Consolidation pass book Ex.D­1/41(OSR).

17. Photographs Mark Z1, Z2 and Z3 respectively.

18. Copy of balance sheet dt. 31.3.1988, Audit of accounts dt. 3.9.1988, balance sheet dt. 31.3.1989, 31.3.1990, 31.3.1991, form no.10CCAC dt. 2.8.1991, audit account for the year 31.3.1991, balance sheet dt. 31.3.1994 and balance sheet dt. 31.3.1995 collectively Ex.D­1/45 (OSR).

DW1 was cross­examined at length by the plaintiffs and discharged thereafter.

23. Defendant next examined its employee Sh. Yogesh Kumar Aggarwal as DW2. In his examination in chief DW2 tendered his evidence by way of affidavit Ex.DW2/A. DW2 deposed therein that he had been looking after the agricultural land owned by defendant company as upto 2005, when his tenure ended. He further deposed that there was no hindrance whatsoever in nature with respect to the possession of the defendant company over the suit land. DW2 was cross­examined and discharged.

24. Defendant company next examined one Sh. Vijay as DW3. In his examination in chief conducted on the affidavit Ex.DW3/A, DW3 deposed that he had not deputed by Sh. Yogesh Kumar Aggarwal, who had testified as DW2 to take care of the agricultural land belonging to the defendant company. DW3 deposed that while he was deputing to take care of agricultural land owned by the defendant company, he was also doing farming activities of the agricultural land wherein two bore­wells had CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 9 been constructed. DW3 further deposed to the effect that he was residing in one of the room located in the inside the agricultural land during the period 1990­1997. DW3 further deposed that there have been no dispute with respect to the possession of the defendant company of the agricultural land owned by the said company during his tenure. DW3 was cross­examined and discharged.

25. One Sh. Ram Chandra, also the employee of the defendant company was examined as DW4. In his examination in chief conducted on the affidavit Ex. DW4/A, DW4 deposed in similar lines of DW3. DW4 deposed to the effect that he was working as caretaker of the land belonging to the defendant company, after he joined the defendant company in September 1997. DW4 deposed to the effect that when he first visited the agricultural land belonging to the defendant company, the entire land was bounded by a boundary wall and certain rooms and the building was also constructed inside the agricultural land. DW4 also deposed to the effect that he was doing farming activities on the agricultural land during the period he was taking care of the same and said land contained two bore­wells. DW4 further testified to the effect that during his tenure the plaintiffs tired to trespass in the agricultural land belong to the defendant company and the official of defendant company had made a police complaint dtd. 15.1.2013 with respect to the said incident, which is Mark A. DW4 was discharged as a witness after being cross­examined by defendant.

26. Defendant summoned the Record Attendant Sh. Sevajit from the department of Delhi Archives, Govt of NCT of Delhi as DW5. In his examination in chief, DW5 exhibited the summoned record pertainiong to the sale deed No. 8455, 8456, 8457, 8458, 8454 all dt. 02.11.1987 as DW5/1 to DW5/5(OSR). In his cross examination, DW5 deposed that he has no personal knowledge of the registration of said documents. He was discharged as a witness thereafter.

27. Defendant next examined the Patwari Sh. Ram Khilari from the office of SDM, Vasant Vihar, Palika Bhavan, New Delhi as DW6. DW6 in his examination in chief, exhibited the copy of Khatauni bearing Khata No. 167 and 232 as DW6/1(OSR) and DW6/2(OSR). The Khatauni pertaining to the Khata No. 233 was exhibited as CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 10 Ex.DW6/3. Further, DW6 exhibited Khasra Girdawari for the year 2015­16 as DW6/4, as per which record Khasra 2125 and 2126 are recorded in the name of M/s VISA Realty Ltd. DW6 also deposed that as per the record of Khatauni for the year 1981­82, the said property has been mutated in the name of the defendant company since 09.09.1988. DW6 was duly cross­examined, re­examined and discharged.

28. Sh. Ramji, who as per the case of the defendant had facilitated impugned sale transaction, was examined as DW7 by the defendant. In his examination in chief, DW7 deposed that the sale deeds Ex. DW5/1 and Ex.DW5/2 were executed in his presence at the office of Sub­Registrar, Asafali Road, New Delhi. DW7 deposed that the thumb impression of the sale deed are of the sellers in the said sale deeds. DW7 further deposed that payment of the consideration amount in respect of the sale deed was paid to the sellers in the presence of Sub­Registrar itself. DW7 also deposed to the effect that on 02.11.1987, apart from the impugned sale deed, various other sale deeds were also executed by the sellers and their family members in favour of the defendant company. DW7 further deposed that one of the witness of impugned sale deed was an advocate and other witness is Rampat, who is the relative of the sellers. DW7 also deposed to the effect that possession of the suit property was given to the defendant company by executant of the impugned sale deed after demarcation which was carried out in the presence of Firoz Patwari and 15 to 20 other villagers including the family members of the sellers. DW7 deposed in his examination in chief that defendant company had constructed a boundary wall around the said property after obtaining the possession of the same and the possession of the suit property is with the defendant company from 1987 till date. DW7 deposed to the effect that the documents Ex.DW1/13 and Ex. DW1/17 bear his signatures at point A on each document. DW7 was cross­examined and discharged thereafter.

29. Sh. Kanchan Biswas, Branch Manager in Indian Bank, Russel Street, Kolkata was examined as DW8 by the defendant. The examination in chief of DW8 was conducted over an affidavit Ex. DW8/A. In his affidavit Ex.DW8/A, DW8 has deposed to the effect that the record with respect to the PO/DD/Ch. Nos. 451901 and CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 11 45903 dt. 6.10.1987 and PO/DD/Ch. Nos. 341644, 341654 and 341646 dt. 1.09.1987 are not available with the bank as the same have been destroyed as per policy. In his cross­examination, DW8 deposed to the effect that he has no personal knowledge about the transactions pertaining to the record i.e. PO/DD/Ch. Nos. 451901 and 45903 dt. 6.10.1987 and PO/DD/Ch. Nos. 341644, 341654 and 341646 dt. 1.09.1987 and he cannot even confirm if the same were issued by the Indian Bank. DW8 accepted as correct the suggestion that he has not tendered any document pertaining to the destruction of the aforesaid record in his testimony. DW8 was discharged thereafter.

30. No other witness were examined by the defendant and matter was then fixed for final arguments.

FINAL ARGUMENTS.

31. Final arguments were commenced by ld. Counsel for defendant. Ld. Counsel for defendant argued as follows:

a) That the impugned sale deed is a genuine document and bears the thumb impression of all the sellers. The sale deed has been duly registered in the presence of all the parties, and the receipt of the consideration amount under the sale deed was duly acknowledged by the parties to the deed.
b) It has been argued by ld. Counsel for the defendant that the sale deed was executed only after an NOC was duly obtained by the parties from the Tehsildar in due compliance with the Delhi Land (Restrictions on transfer) Act, although the said NOC is not part of the judicial record. That the plaintiff has laid the challenge only to a part of the impugned sale deed dt. 2.11.1987, as the sale deed and NOC is a composite document and the sale deed cannot be set aside unless the NOC is also set aside.
c) Ld. Counsel for the defendant argued that the suit of the plaintiffs is bad for non­joinder of necessary parties and the other executants of the sale deed have not been made a party to the suit. This is impermissible in law, as the impugned sale deed pertains to a single piece of land. It was argued by ld. Counsel for defendant that a sale deed cannot be set aside in part.
d) It was argued by ld. Counsel for defendant that the impugned sale deed is CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 12 the genuine document and the plaintiffs have filed the instant suit only because the prices of real estate have sky rocketed and the plaintiffs have developed the malafide intention of obtaining unlawful gain from the defendant. Seven sale deeds were executed on the same date i.e. 2.11.1987 in favour of the defendant and out of the seven sale deed, four were executed by the same parties in favour of the defendant.

Moreover, another sale deed bearing registration no.8458 was executed by the same parties in favour of one Sh. Balbir Singh, but the said document has not been challenged and the plaintiffs have impugned only the sale deed which has been executed in favour of the defendant.

e) It was argued by ld. Counsel for defendant that Sh. Mamchand who is the co­executant of the impugned sale deed has filed another suit to impugn another sale deed, but he was not arrayed as a plaintiff in the present suit. Ld. Counsel for defendant argued that the said Sh. Mamchand was present in the court but did not take the witness stand to depose in favour of the case of the plaintiffs, although he is a material witness to the transaction pertaining to the impugned sale deed. Ld. Counsel for defendant argued that an adverse inference should be drawn against the plaintiffs as they have neither impleaded Sh. Mamchand as a party to the suit, nor have been examined him as a witness to the suit. Ld. Counsel for the defendant further buttressed this argument by pointing out that Sh. Mamchand has challenged another sale deed in another suit in the capacity of the legal heir of the executant of that sale deed, but the plaintiffs deliberately omitted examining him as a witness in the instant suit, and because of this fact the best evidence has been concealed by the plaintiffs.

f) Ld. Counsel for the defendant argued that the suit of the plaintiffs is barred by limitation as the plaintiffs have challenged the sale deed dt. 2.11.1987 much beyond the period of three years, although they were always aware of the execution of the sale deed, or at best, should be deemed to be aware of the execution of the sale deed as the same is a registered document. It was argued that the registration of a document is a public notice. Further, Ld. counsel for defendant argued that the sale deed could have been challenged by the plaintiffs either within the period of 12 years CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 13 from the date of execution of the same, or within three years from the date when the plaintiffs attained the age of majority.

g) It was argued that even if the plaintiffs are able to establish fraud, the interest of the defendant deserves to be protected by virtue of proviso of Section 17 of Limitation Act, 1963, which protects the interest of a bonafide buyer who has paid a valuable consideration.

j) It was argued by ld. Counsel for defendant that the impugned sale deed is a genuine document and the plaintiffs have filed the instant suit only because the prices of real estate have sky rocketed and the plaintiffs have developed a malafide intention of obtaining unlawful gain from the defendant. Seven sale deeds were executed on the same date i.e. 2.11.1987 in favour of the defendant and out of the seven sale deed, four were executed by the same parties in favour of the defendant. Moreover, another sale deed bearing registration no.8458 was executed by the same parties in favour of one Sh. Balbir Singh, but the said document has not been challenged and the plaintiffs have impugned only the sale deed which has been executed in favour of the defendant.

k) It was argued that impugned sale deed was executed on the basis of NOC which was obtained form the Tehsildar in compliance with Delhi Reforms (Restriction of Transfer) Act on 20.10.1987, and the sale deed was executed within 30 days from the date of the NOC i.e. on 02.11.1987.

l) It was argued by ld. Counsel for the defendant that the case of the plaintiffs become suspect in view of the fact that although several sale deeds were executed by Sh. Hemraj on 02.11.1987 and his family , the plainitffs have not challenged all the sale deeds. The plaintiffs have taken contradictory stands by not challenging the other sale deeds including the sale deed executed by the same predecessor­in­interest of the plaintiffs who have executed the impugned sale deed.

m) Ld. Counsel for defendant has argued that the land which is subject matter of the impugned sale deed and is comprised in Khasra No. 2125 has not been demarcated and the shares of the plaintiffs have not been carved out separately. Therefore, the plaintiffs cannot seek the setting aside of part of the sale deed in view CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 14 of the fact that Sh. Prabhu and Sh Mamchand, who are also co­executants of the sale deed, have neither challenged the impugned sale deed nor have been impleaded as a party to the present suit.

n) Ld. Counsel for defendant further argued that it has been established from the record that the possession of the suit property is with the defendant and the suit of the plaintiffs in the present form is not maintainable as the plaintiffs have not sought the relief of possession.

o) Ld. Counsel for defendant argued that it can be inferred that the case of the plaintiffs is defective in view of the fact that the plaintiffs have themselves not taken any effort to summon the co­executants of the impugned sale deed as a witness in the present suit.

p) It was argued by ld. Counsel for the defendant that the suit of the plaintiffs is barred by limitation as the impugned sale deed is a registered document and the plaintiffs are deemed to have knowledge of the execution of the sale deed, and they should have filed this suit within three years of attaining majority. Ld. Counsel for defendant further argued that the plaintiffs had actual knowledge of the impugned sale deed since 1987 itself, since the defendant has been in possession of the suit property from the date of purchase. Ld. counsel for defendant further argued that the plaintiffs has averred in the plaint that he got to know through some property dealers about existence of the impugned sale deed, but the plaintiffs have omitted to mention the name of the property dealers and this averment of the plaintiffs is false. Ld counsel argued that by making this false averment, the plaintiffs have filed the instant suit much beyond the expiry of the limitation.

q) On the point of limitation, ld. Counsel for the defendant argued that the plaintiff no.2 and 3 have filed another suit impugning one other sale deed executed between them and the defendant, and Sh. Mamchand who is plaintiff no.1 in the present suit is executed the said sale deed. As a co­executant of another sale deed executed on the same date, plaintiff no.1 would necessarily have the knowledge of the execution of the instant sale deed as well. The fact that no challenge was made to CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 15 either of the sale deed within three years of the execution of the same reflects lack of due diligence on the part of the plaintiffs, and this entitles the plaintiffs from the benefit of Section 17 of the Limitation Act, 1963. It was further argued on behalf of the defendant that even if some fraud was committed at the time of execution of the impugned sale deed, the defendant was not guilty of committing the fraud, and instead is a victim of the same, and the interests of the defendant deserves to be protected.

r) It is the case of the plaintiffs that the thumb impression of late Sh. Hemraj and late Sh. Rattan Lal on the impugned sale deed have been forged by a third party. However, no forensic evidence was led by the plaintiffs in order to prove this.

s) Ld. Counsel for defendant adverted to the payment receipt against the cheques which was given by the defendant to the sellers as per impugned sale deed and argued that if Rattan lal had already expired before the date of execution of the sale deed, the cheques should not have been encashed in his account. It was argued that this fact reflects the lacuna in the case of the plaintiffs.

32. In support of his arguments, ld. Counsel for defendant also placed reliance upon the following judgments:

1.Prem Singh and Ors. v. Birbal and ors. 2006 (5) SCC 353.
2. Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) through LRs and ors. 2014(14) SCC 502.
3. Union of India vs. Ibrahim Uddin and anr 2012 (8) SCC 148.
4. M/s Housing & Urban Development Corporation Ltd. v. M/s. MS Shoes (East) Ltd. & Ors. RSA No. 362/2014 & C.M. No.2349/2016 dated 03.06.2016­ Delhi High Court.
5. Snehlata (Through legal heirs) Sai Chanakya Maverick v. Priti Tandon & Anr. (Counter claim No. 12/2014 dated 11.4.2018­ Delhi High Court.
6. Shri Hari Ram v. Smt. Shanti Devi & Ors. CS(OS) No. 1908/2015 and IA No.13346/2015 dated 05.10.2015­ Delhi High Court.
7. Vinay Krishna v. Keshav Chandra and Anr. 1993 Supp. (3) SCC 129.

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8. Abhishek Gupta v. Shree Salasar Polyflex Pvt. Ltd. & Ors. CS(OS) No.628/2017­ Delhi High Court & Manu/DE/0963/2018.

9. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar vs. Chandrdan and ors. (2017) 3 SCC 702.

10. Darshan Singh v. Gurdev Singh 1994 SCC (6) 585.

11. Ram Saran and Anr. v. Smt. Ganga Devi (1973) 2 SCC 60.

12. State of West Bengal vs. The Dalhousie Institute Society (1970) 3 SCC 802.

13. Vidhyadhar v. Manikrao and Ors. 1999 (3) SCC 573.

14. Gopal Krishna v. Priti Bala and ors. AIR 2006 JK 76.

15. Hatti v. Sunder Singh AIR 1971 Supreme Court 2320.

16. Phoolwati v. Ram Dei 2008 (150) DLT 105.

17. Ram Niwas v. Pitamber Singh and Ors. MANU/DE/8544/2007.

18. Subhadara v. Surender Singh & Ors. 229 (2016) DLT 188.

19. Smt. Pushpa Saroha v. Shri Mokhinder Kumar & Ors. 157 (2009) DLT 425.

20. Renu Nagar vs. Anup Singh Khosla and ors. 156 (2009) DLT 723.

21. B.L. Sreedhar and Ors. vs. K.M. Munireddy (Dead) and Ors. 2003 (2) SCC 355.

22. Sopan Sukhdeo Sable & Ors. v. Assitant Charity Commissioner & ors. 2004 (2) SCC 137.

23. Rev Singh v. Rishi Pal & Ors. 182 (2011) DLT 52.

24. Nirmal Singh v. GNCT of Delhi and Ors. MANU/DE/4079/2011.

25. Polymer Papers Ltd. v. Mr. Gurmit Singh and Ors. AIR 2002 Delhi 530.

26. Bimla Devi & Ors. vs. Zile Singh & Ors. 205 (2013) DLT 35.

27. Dilboo (Dead) by Lrs and Ors. vs. Dhanraji (Dead) and Ors. (2000) 7 SCC 702.

28. Kalidindi Venkata Subbaraju and Ors. vs. Chintalapati Subbaraju and Ors. (1968) 2 SCR 292.

29. Om Prakash Sharma Vs. Rajendra Prasad Shewda and ors. (2015) 15 SCC 556.

30. Shri Ram and Anr. vs. 1st Addl. Judge and Ors. (2001) 3 SCC 24.

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31. P.T. Munichikkanna Reddy & Ors. vs. Revamma and ors. (2007) 6 SCC 59.

32. Mulani vs. Maula Bakhsh (1924) ILR 46 All 260.

33. Smt. Razia Begum vs. Delhi Development Authority & ors. 2014 (215) DLT 290.

34. Minu Chibber & Ors. vs. Lt. Col(Retd.) S.S. Chibber 2014 (9) AD (Delhi) 289.

35. Harbhajan Singh vs. Kuldeep Singh and ors. 237 (2017) DLT 640.

36. Sardar Gurbaksh Singh vs. Gurdial Singh (1927) 29 BOMLR 1392.

37. Ram Niwas (Dead) Through Lrs vs. Bano and Ors. (2000) 6 SCC 685

38. Khatri Hotel Private Limited and Ors. vs. Union of India (UOI) and Ors. (2011) 9 SCC 126.

39. N.V. Srinivasa Murthy and ors. vs. Mariyamma (Dead) by Proposed Lrs and Ors. (2005) 5 SCC 548.

40. J.D. Jain and Ors. vs. Sharma Associates and Ors. 167(2010) DLT 766.

41. Sidramappa vs. Rajashetty and Ors. (1970) 1 SCC 186.

42. Deva Ram and Ors. vs. Ishwar Chand and Ors. (1995) 6 SCC 733.

43. Jagmohan Behl Vs. State Bank of India 238 (2017) DLT 228.

44. Santosh Kumar Jain and Ors. vs. Bahadur Singh Jain and Ors. MANU/DE/0156/1982.

45. Gaon Sabha and anr. vs. Nathi and ors. (2004) 12 SCC 555.

46. ASEA Brown Boveri Ltd. vs. Industrial Finance Corporation of India and ors. (2004) 12 SCC 570.

47. Krishan Gupta vs. Hari Shanar & Anr. 2008 (102) DRJ 84(DB).

48. Hira Singh vs. Smt. Sahini and Ors. AIR 1987 Delhi 168.

49. M/s. Indraprastha Ict and Cold Storage Ltd. New Delhi vs. The Union of India and Ors. AIR 1987 Delhi 171.

50. Usha Gupta vs. Subash Chand Tyagi 2012 (127) DRJ 27.

51. Ramti Devi vs. Union of India (1995)1 SCC 198.

52. Shri Bhagwan vs. Gaon Sabha of Village Nasirpur & Anr. 180(2011) DLT 75.

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53. Sudershan Singh vs. Ravinder Uppal & Ors. 180 (2011) DLT 78.

54. Gulshan v. Govt of NCT of Delhi 2008(2) D (Delhi) 225.

55. Bimla Devi vs. Financial Commissioner, 2003(106) DLT 650.

56. Ram Singh vs. Union of India. 2001(94) DLT 788.

57. Aniruddha Dutta vs. Bhawani Shankar Basu 2012(127) DRJ 70.

58. Jaswant Singh v. Surinder Kaur Kohli 2009 (159) DLT 517.

33. Per contra, ld counsel for the plaintiffs argued as follows:

a) That on the basis of the death certificate, it has been established from the record that Sh. Hemraj and Sh. Rattan Lal had expired before the execution of the sale deed, and therefore, the same deed is liable to be set aside.
b) With respect to objections taken by the defendant regarding the maintainability of the present suit in view of Section 185 Delhi Land Reforms Act, it was argued that the revenue court has no jurisdiction to declare a sale deed to be null and void and the plaintiffs have rightly filed the suit before the Civil Court.
c) On the aspect of limitation, ld. Counsel for plaintiffs argued that there can be no bar of limitation to challenge documents which are null and void.
d) It was argued by ld. Counsel for plaintiffs that even if it is presumed that the possession of the property which is the subject matter of the impugned sale deed is with the defendant, the suit of the plaintiffs for injunction and declaration is still maintainable as this court could not have granted the reliefs of possession and partition to the plaintiffs, in view of the Specific bar contained in Delhi Reforms Act.
e) Ld. Counsel for plaintiffs argued that the entire case of the defendant is based upon the mutation entries in favour of the defendant but it is well settled position of law that the mutation entries do not confer or create title.
f) Ld. Counsel for plaintiffs argued that the instant suit has been rightly valued, as the plaintiffs are in possession of the suit property. Ld. Counsel for plaintiffs placed reliance on the judgment of Hon'ble Supreme court of India titled Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112:AIR CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 19 2010 SC 2807.

34. Written arguments were also filed on behalf of the plaintiffs, in which the plaintiffs have also relied upon the several judgments. Besides, plaintiffs have also cited the following judgments in support of their case­

1) Saradamani Kandappan vs. S. Rajalakshmi and ors. 2011 AIR (SCW) 4092.

2) Suraj Bhan & ors. vs. Financial Commissioner & Ors., 2007(6) JT 152: 2007(6) SCC 186.

3) Ashok Kumar & ors. vs. Munni Devi & Ors. 188(2012) DLT 589.

4) Ms. Kamala Devi Vs. Mrs. Kususm and Anr. CRP NO. 82/2008 dt. 14.7.2008.

35. I have perused the record meticulously in the light of the evidence and rival arguments led by the parties. Considered. I shall refer to the relevant judgments cited by the parties at the appropriate stages. My issue­wise findings are as hereunder:

ISSUE NO. 1:
Whether the suit of the plaintiffs for declaration and permanent injunction is within the limitation? OPP.

36. The onus qua this issue was placed upon the plaintiff. In order to discharge this issue, the plaintiff no.1 deposing as PW1, testified in his examination in chief that he came to know about the impugned sale deed as well as the consequent mutation order based upon the impugned sale deed in favour of the defendant between the period of January 2010 to September 2010. Thereafter, the instant suit was filed in the year 2010 itself and it is within limitation.

37. To discharge the onus qua this issue, PW1/plaintiff deposed in his examination in chief that the plaintiffs have been in continuous possession of the suit property, and there was no occasion for them to find out about the mutation in the land revenue records. PW1 further deposed that he found out only in the year 2010 that the impugned sale deed has been forged by the defendant in its favour, and the suit of the plaintiffs is within limitation.

38. The testimony of PW1 does not inspire the confidence of this court, however.

CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 20 PW1 himself deposed in his cross examination that plaintiffs are not in possession of the suit property since the year 2010. This is in contradiction to the testimony of PW1 in his examination in chief as well as the version of the plaintiffs that they are in possession of the suit property. Further, while the plaintiffs have averred in the plaint that they obtained knowledge of the impugned sale deed in the year 2010, PW1/plaintiff no.1 deposed in his cross examination on 01.12.2015 that he obtained the certified copy of the land records in 2008. The credibility of PW1 as a witness becomes shaky in view of these contradictions.

39. Furthermore, while in the plaint it has been averred that the plaintiffs obtained knowledge of the impugned sale deed between the period January 2010­ September 2010, the plaintiffs have not specified the exact source of their information . After about 23 years from the date of execution of the impugned sale deed, the plaintiffs suddenly became aware of its execution, and no explanation is forthcoming of the source.It has been averred in the plaint, and PW1 deposed in his examination in chief on similar lines, that the plaintiffs did not have any occasion to find out about the execution of the impugned sale deed as the possession of the suit property has been with the plaintiffs. In his cross examination, plaintiff no.1/PW1 changed his stance and deposed that the possession of the suit property was taken over by the defendant in the year 2010 and it is then that they became aware of the execution of the impugned sale deed. This puts the entire version of the plaintiffs with regard to the aspect of limitation under a shadow of cloud.

40. PW1 also admitted in his cross examination that another piece of land belonging to their family was sold by Sh Mamchand and the plaintiffs to one Sh Ramesh Aggarwal in 1997. It seems to be improbable that even though the plaintiffs were transacting with respect to another property belonging to them, they did not have any knowledge to the status of the property which is the subject matter of the impugned sale deed.

41. The defendant, on the other hand, has proved on record the land revenue CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 21 records, as per which the defendant has been in continuous possession of the suit property ever since the purchase of the same by the defendant under the impugned sale deed dated 2.11.1987. The khasra ­Girdawari or the P4 forms are Ex DW1/21­40, and as per them, the mutation of the property is in the name of the defendant, and as per the testimony of DW6 who is the village patwari, the mutation took place on 09.09.1988. Further, DW6 also deposed that as per the Khasra Girdawari for the year 2015­2016 also, the defendant is the recorded bhumidar of the suit property. There rises a presumption that the suit property has been in the possession of the defendant since the date of the mutation itself. DW6 accepted as correct in his cross examination the suggestion that mutation is sanctioned in favour of a party when the transfer of possession takes place. The original khasra khatauni records for the period 1990­91, and from the period 1993­94 to 2014­15 have been placed on record by the defendant. There is a presumption of genuineness of these documents. These revenue records are prepared by the patwari, after on­spot verification and this Court is bound to presume that the official act was done rightly. As per the records, the defendant has been cultivating the suit property, and the possession of the agricultural land goes with the revenue records. The defendant has established its possession over the suit property, and the plaintiffs would of necessity, have the knowledge of the possession of the defendant since 1987.

42. The plaintiffs have not discharged the onus of proving that the khasra­ girdawari records are incorrect. They have not placed on record any other documentary evidence to prove their possession even for the period 1987­2010, and witnesses of the plaintiffs have themselves conceded that after 2010, the possession of the property which is the subject matter of the suit is with the defendant. The plaintiffs in natural course of events, would have attained knowledge that the defendant is asserting claim over the property, and due diligence required that they should have made proper enquiry into the basis of defendant's claim. Law cannot favour the indolent. The argument of the plaintiffs that there is no limitation to challenge null and void documents is contrary to law, as per which a document executed by fraud has to CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 22 be challenged within three years from the date on which the knowlege of the document was obtained.

43. Defendant has rightly argued that the circumstance that Sh Mamchand, who is a co­executant of the impugned sale deed, challenged another sale deed in the connected suit, did not challenge the present sale deed, and plaintiffs also made no averments regarding the thumb impressions of Sh. Mamchand being forged, casts a shadow of doubt on the version of the plainitiffs that they did not have knowledge of the impugned sale deed till 2010. In view of the above discussion, it is held the suit of the plainitff is barred by limitation. The issue is decided against the plaintiffs.

ISSUE NO.2.

Whether the plaintiffs are in possession of the suit property? OPP.

44. The onus qua this issue was placed upon the plaintiffs. With respect to this issue, a heavy burden was placed upon the plaintiffs in view of the fact that as per the revenue records ie the khasra­girdawari, the possession of the suit property is with the defendant.

45. In order of discharge the burden qua this issue, the plaintiffs examined plaintiff no.1 as PW1, who deposed in his examination in chief that the plaintiffs have been in possession of the suit property since the year 2010. In his cross­examination, however, PW1 himself deposed that the possession of the suit property is with the defendant who has construction a boundary wall around the same. PW1 also deposed in his cross­examination that the possession of the other land in Khasra no.2117, 2118 and 2119, 2125, 2126 and 2142 in village Rajokari is with the defendant since year 2010, although the properties are owned by the plaintiffs.

46. Further, PW2 who claims himself to be associated of the family of the plaintiffs for a long time, also deposed that there was no boundary wall around the suit property prior to the year 2010 and the said boundary wall around the suit property CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 23 was constructed by the defendant herein.

47. From the testimony of PW1 and PW2, it becomes clear that the possession of the suit property is with the defendant. This inference is supported by the consistent testimonies of defendant's witnesses. DW1, who is the AR of the defendant deposed that the possession of the suit property was taken over by the defendant subsequent to the execution of the sale deed in the year 1980 itself. Not even a single question has been put to DW1 to demolish his testimony in this regard. DW1 also denied the suggestion that the boundary wall around the suit property was raised in the year 2011. Further, a suggestion was put to the defendant that the construction of the boundary wall was carried out by the defendant, albeit in the year 2011. It can be inferred from the suggestion itself that the plaintiffs have admitted that they do not have possession over the suit property. DW3, who was the employee of the defendant in the period 1990 to 1997 deposed that he used to live in the suit property and takecare of the suit property on behalf of the defendant during his entire tenure. The plaintiffs could not demolish the testimony of DW3 in the cross­examination, who remained consistent in his testimony that the entire property purchased by the defendant including the suit property was bounded by the defendant with a wall. DW4, who had been the employee of the defendant company since September 1997 also deposed to the effect that he had been living in the suit property and taking care of the same from the day when he joined the employment of the defendant. DW4 has also remained consistent in his testimony to the effect that the possession of the suit property has been with the defendant.

48. It has been established on the record that the possession of the suit property is not with the plaintiffs. The plaintiffs have not been able to discharge the onus that the mutation pertaining to the suit property is incorrect and the possession of the property is with the plaintiffs. Accordingly, this issue is decided against the plaintiffs and in favour of the defendant.

ISSUE NO.3.

CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 24 Whether the suit is barred u/s. 34&31 of Specific Relief Act, 1963? OPD.

49. The onus of this issue was placed upon the defendant. It has been averred in the amended written statement that the suit of the plaintiffs is barred by Section 34 and 31 of the Specific Relief Act, 1963.

50. While adjudicating issue no.2, this court has held that it has been established from the record that the plaintiffs did not have the possession of the suit property at the time when they filed the present suit. Accordingly, it was incumbent upon the plaintiff to seek the relief of possession, which is a consequential relief to the relief of declaration sought by the plaintiffs. As the plaintiffs did not seek the relief of possession, the suit of the plaintiffs is barred by virtue of the proviso of Section 34 of the Specific Relief Act, 1963. At this juncture, this court seeks guidance from the law laid by the Hon'ble High Court of Delhi in the judgment titled Virender Gopal vs. Municipal Corporation of Delhi AIR 2007 Delhi 183, wherein it was held that as the possession of the property is with the defendant, the suit of the plaintiff filed for the relief of declaration and injunction, sans the relief of possession, is barred under the proviso to section 34 Specific Relief Act, 1963. Accordingly, this issue is decided in favour of the defendant and against the plaintiffs.

ISSUE NO.4 Whether this court has no jurisdiction in terms of provisions of Section 185 of Delhi Land Reforms Act, 1954? OPD.

51. As per the Section 185 of Delhi Land Reforms Act, the cognizance of civil courts to decide any dispute mentioned in column 7 of Schedule 1 of the Act is barred. By virtue of this provision, suit for possession of agricultural land as well as suit for declaration of bhumidari rights cannot be maintained in civil courts.

52. In the case at hand, it has come on record that the plaintiffs are not in possession of the suit property. Plaintiff no.1 while deposing as PW1 has himself admitted that atleast since the year 2010 the possession of the suit property is with the CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 25 defendant. Further, it has also been established that the name of the defendant is recorded in the land records as the Bhumidar. The land revenue records maintained by the concerned revenue authority have been mutated in the name of the defendant. This court is bound to presume that all official acts have been performed in due course and in accordance with the procedure laid down. Thus recording of the defendant to be in possession of the suit property is sufficient proof of the fact that the defendant has been in possession of the suit property since the date of execution of the impugned sale deed. The effective relief which the plaintiffs seek is the relief of recovery of possession of the suit property, as well as the declaration of their bhumidari rights over the suit property. Accordingly, the plaintiffs should have approached the concerned revenue authorities for obtaining these reliefs. Reliance in this regard can be placed upon the judgment of Hon'ble High Court of Delhi in Smt. Phoolwati and Ors vs. Smt. Ram Dei and Ors. 150(2008) DLT 105.

53. This court also seeks guidance from the law laid down by the Hon'ble Supreme Court of India in Shri Ram and Another vs Ist Addl.Distt. Judge & Ors AIR 2001 SC 1250, wherein it was held as follows:

" On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation.There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court,as CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 26 the sale deed being void has to be ignored for the purpose of giving him relief for declaration and possession."(emphasis supplied.)

54. In view of the above discussion and the legal position, this issue is decided against the plaintiffs and in favour of the defendant.

ISSUE NO.5.

Whether the suit has been under value by plaintiffs for the purpose of court fees and jurisdiction? OPD.

55. The onus qua this issue was placed upon the defendant, as this issue was framed on the basis of the pleadings of the defendant to the effect that the plaintiffs have filed a defective suit for the purpose of avoiding the payment of appropriate court fee.

56. The instant suit filed by the plaintiffs to seek the declaration against the impugned sale deed executed between the predecessor­in­interest of the plaintiffs as well as the defendant. Being a third party to the impugned sale deed, the plaintiffs have correctly sought the relief of declaration with respect to the sale deed. However, it has been proved on the record that the plaintiffs did not have the possession of the suit property at the time of filing of the present suit. Accordingly, it was incumbent upon the plaintiffs to seek the relief of declaration with the consequential relief of possession, and value the present suit on the basis of the market value of the suit property. Reliance at this juncture can be placed upon the judgment of Hon'ble Supreme court of India in Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112:AIR 2010 SC 2807, wherein it has been held that:

"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non­executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non­ est, or illegal or that it is not binding on him. The difference between a CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 27 prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B'­­ two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently, 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non­est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non­binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad­valorem court fee on the consideration stated in the sale deed. If 'B' who is a non­executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of second Schedule of the Act. But if 'B', a non­executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad­valorem court fee as provided under Section 7(iv) (c) of the Act. Section 7 (iv) (c ) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause(v) of Section 7."

57. Since the plaintiffs have failed to seek the relief of possession consequential to the relief of declaration, and have not valued the suit as per the requirement of a third party who is not in possession of the suit property, this issue is decided in favour CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 28 of the defendant and against the plaintiffs. The argument raised by Ld Counsel for the plaintiffs to the effect that possession was not sought by the plaintiffs in the present suit as a civil court is not competent to grant possession of agricultural land appears to be attractive at first blush, but is also liable to be rejected. This argument would have been helpful to the case of the plaintiffs if they had conceded that they are not in possession of the suit property, but are reserving their right to approach the concerned revenue authorities. In the case at hand however, the plaintiffs have pleaded that they were in possession of the suit property in their plaint, but could not prove their possession.

ISSUE NO.6.

Whether the suit of the plaintiffs is barred on account of non­joinder of necessary parties?OPD.

58. The onus of this issue was placed upon the defendant. It has been averred in the written statement that the impugned sale deed was executed between the defendant as the buyer and Sh Mamchand, Rattan Lal and Prabhu as the sellers. Since the instant suit has been filed by only Sh. Charan Singh and Sh. Bhagwan Singh who are the legal heirs of Sh. Rattan Lal, and the other co­sellers have not been made a party to the present suit, the suit is bad for mis­joinder of necessary parties. This court finds itself in agreement with the defendant. No sale deed can be set aside in part, if it is of a nature that it cannot be fragmented. The impugned sale deed pertains to a single piece of land, which was co­owned in 1987, the year to which the impugned sale deed pertains, by Mamchand, Rattan Lal and Prabhu. In view of the averments of the plaintiffs that the thumb impressions on the sale deed were of not of Rattan Lal, but rather were forged, the sale deed cannot be set aside in part. A document obtained by fraud must be set aside in its entirety, if at all. Neither Mamchand nor Prabhu (or their legal heirs) have been made parties to the present suit, either as plaintiffs or as proforma defendants. The sale deed cannot be set aside in the absence of the other two co­sellers as a party to the present suit. The other co­sellers, being brothers of Late Sh Rattan lal would have been the best persons to explain the circumstance in which the CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 29 impugned sale deed came to be executed, since it has not been averred that the thumb impressions of Sh Mamchand as well as Sh Prabhu on the sale deed are also forged.

59. The suit of the plaintiffs is bad for non­joinder of necessary parties. The plaintiffs did not cure this defect in the suit despite being fully aware of it, and being out to notice of the defect, by virtue of this issue. The suit is bad for non­joinder of necessary parties, whose interest would have been effected if the suit was decreed in favour of the plaintiffs. This issue is decided in favour of the defendant and against the plaintiffs.

ISSUE NO.7 Whether the sale deed dt. 02.11.1987 was duly executed and validly registered in favour of defendant? OPD.

60. The initial burden of proof, as per Section 101 of the Indian Evidence Act, 1872, to prove that the impugned sale deed was not validly executed is upon the plaintiffs.

61. It is the case of the plaintiffs that the impugned sale deed has been purportedly executed by their predecessor­in­interest Sh. Rattan Lal as a co­seller on 2.11.1987 in favour of the defendant, but the said Sh. Rattan Lal had already expired on 09.1.1987. It is the case of the plaintiffs that the impugned sale deed is a forged and fabricated document, having been executed after the demise of one of the alleged co­ sellers, by forging his thumb impression on the document.

62. In order to discharge this issue PW1 deposed in favour of the case of the plaintiffs to the effect that Sh. Rattan Lal, the father of the plaintiffs had expired on 09.01.1987. To prove the date of death, plaintiffs also examined PW3 , from the office of Sub Registrar, birth and death, Najafgarh zone, SDMC, New Delhi, who proved on record the extract of the register maintained in accordance with The Registration of Births and Deaths Act, 1969, Ex PW3/B. As per the extract and the testimony of PW3, the death of Rattan lal was reported with the concerned authority by Sh Mamchand on CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 30 19.01.1987 itself, within ten days of the incident. Nothing material could be elicited by the defendant in the cross examination of PW3 also, regarding the factum of Rattan Lal's death being recorded in the register.

63. The case of the plaintiffs to the effect that Sh Rattan lal had expired on 09.01.2987 becomes stronger by virtue of the fact that plaintiffs have examined PW5 , Patwari from the record room, SDM office Najafgarh, who proved in his evidence that the plaintiffs had duly reported the date of the death to the patwari, for the purpose of obtaining a mutation in their name, in the year 1988 itself, much before the filing of the present suit. PW5 proved in his testimony the relevant extract of the mutation file titled Charan Singh and Ors Vs Ratan Singh Ex PW5/2, as per which the plaintiffs had applied for, and obtained, mutation of the properties belonging to their father Sh Rattan Lal in their names, after reporting the death of their father on 3/10/1988 itself. This statement was made by the plaintiffs to the concerned authorities much before the present dispute arose, and it is a circumstance which speaks in favour of the plaintiffs.

64. The case of the plaintiffs further becomes more probable in view of the fact that the sale deed Ex DW1/5 does not, admittedly, bear the signatures of the AR of the defendant. Further, the defendant's case all throughout has been that the sale deed was executed after duly obtaining an NOC in compliance with the provisions of Delhi Lands (Restrictions on Transfer) Act, 1972, and it cannot be set aside unless the NOC is also challenged. However, no such NOC has been proved on record by the defendant.

65. Defendant, to prove the impugned sale deed's validity, also examined Sh. Ramji, as DW7. DW7 is stated to be the facilitator of the transaction between the vendors in the impugned sale deed, and the defendant. In his examination in chief, DW7 deposed that he was present at the time of the execution of the impugned sale deed. However, in his cross examination, DW7 deposed that he doesn't know the names of all the sellers were present at the time of the execution of the impugned sale deed. DW7 also deposed that he doesn't know the sellers personally. As such, the CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 31 testimony of DW7 doesn't help to establish the version of the defendant that the sale deed was validly executed in its favour by the predecessor­in­interest of the plaintiffs.

66. Further, the defendants have also been unable to prove the payment of consideration amount to the vendors. The receipts Ex D1/14 and Ex D1/16 do not bear the signatures of the sellers. DW8, the branch manager of Indian bank, Russel Street, Kolkata, on which bank allegedly the cheques for payment of consideration to the sellers were drawn, deposed in his testimony that the bank has destroyed all the records pertaining to the said cheques. In such a circumstance, the defendant ought to have summoned the bank records of Sh Rattan Lal, to prove that the consideration amount was paid to him by way of a cheque, which was duly encashed in his account. However, defendant failed to do so. The defendant has not been able to establish the payment of consideration amount to Sh Rattan lal, and also cannot take the benefit of being a "bonafide purchaser for valuable consideration".

67. The fact that the plaintiffs did not examine Sh Mamchand, a co­executant of the sale deed, as a witness, and concealed best evidence, or did not challenge the other sale deeds executed on the same date 02.11.1987 is a relevant fact, but is not, in itself, sufficient to establish that the impugned sale deed has been validly executed.

68. Cumulatively viewed, the plaintiffs have been able to establish, on a scale of preponderance of probabilities, that Sh Rattan Lal had expired on 09.01.1987 and therefore, the impugned sale deed was not validly executed. This issue is decided in favour of the plaintiffs and against the defendant.

ISSUE NO 8 Whether the suit of the plaintiffs is not maintainable for want of necessary particulars in terms of Order 6 R 4 CPC? OPD.

69. The onus qua this issue was placed upon the defendant. The defendant has not addressed any arguments with respect to this issue. Even otherwise, the challenge CS No. 244/2011 (26535/16) Charan Singh & Anr. vs. M/s. Visa Realty Ltd., Judgment dt. 07.02.2020 Page No. 32 of the plaintiffs to the sale deed is premised on the fact that the executant of the sale deed was not alive at the date of execution. The plaint does not appear to be wanting in necessary particulars. This issue is accordingly decided against the defendant and in favour of the plaintiffs.

ISSUES NO 9 and 10.

Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP.

And Whether the plaintiffs are entitled for relief of permanent injunction, as prayed for? OPP.

70. These issues are taken up together as they are interconnected. The onus qua both these issues was placed upon the plaintiffs.

71. The plaintiffs have proved that Sh Rattan Lal was dead on the date of the execution of the impugned sale deed. However, in view of discussion on issue no.1 (limitation) and issue no. 2 (possession of the plaintiffs), the plaintiffs cannot be held entitled to the relief of declaration. Furthermore, as the relief of declaration has been denied to the plaintiffs, they cannot be held entitled to the consequential relief of permanent injunction either.

72. These issues are accordingly decided against the plaintiffs.

RELIEF.

73. In view of the observations with respect to issue no.1,2,3,4,5,6,9 and 10, the suit of the plaintiff is dismissed. However, parties to bear their own costs.

74. Decree sheet be prepared accordingly.

Digitally signed

75. MEDHA File be consigned to record room after complianceby with due formalities. 

                                                           MEDHA     ARYA

ANNOUNCED IN THE OPEN                            ARYA   Date: 2020.02.10
                                              (MEDHA 15:28:49
                                                        ARYA) +0530
COURT ON 07.02.2020                   CIVIL JUDGE(SW)/DWARKA COURTS
                                                NEW DELHI

CS No. 244/2011 (26535/16)
Charan Singh & Anr. vs. M/s. Visa Realty Ltd.,
Judgment dt. 07.02.2020                                           Page No. 33