Delhi District Court
Radha Gupta And Ors vs Deepak Singhal And Ors on 28 November, 2023
CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
IN THE COURT OF MS. SWAYAM SIDDHA TRIPATHY,
CIVIL JUDGE-02, SOUTH DISTRICT, SAKET COURT,
DELHI
Case No. : CS SCJ 223/2018
CNR No. : DLST03-000404-2018
IN THE MATTER OF :
1.RADHA GUPTA
2.DOLLY GUPTA
3.ASHISH GUPTA
All R/o H.no. 1, Block-G, Gali No. 8A,
Sangam Vihar, New Delhi-62 ............... Plaintiffs
Versus
1. DEEPAK SINGHAL
R/o H-17/216, Ratiya Marg,
Sangam Vihar, New Delhi-80
2.USHA GUPTA
R/o H-1/365, Ratiya Marg,
Sangam Vihar, New Delhi-80.
3. KAUSHAL GUPTA
R/o J-1/205, 2nd Floor, DDA Flats,
Kalkaji, New Delhi ............Defendants
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SUIT FOR DECLARATION, PERMANENT, MANDATORY
AND PROHIBITORY INJUNCTION
****
Date of Institution of suit : 09.03.2018
SWAYAM Digitally signed by
SWAYAM SIDDHA
SIDDHA TRIPATHY
Date: 2023.11.28
TRIPATHY 16:56:35 +0530
(Swayam Siddha Tripathy),
Civil Judge-02(South)
Saket Courts, New Delhi
28.11.2023 (Page 1 of 27)
CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
Date of Reserving of Judgment : 14.10.2023
Date of Pronouncement of Judgment : 28.11.2023
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JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff seeking declaration and permanent, mandatory and prohibitory injunction against the defendants.
PLAINT
2. Briefly stated the case of the plaintiffs is that the plaintiff no. 1 is the mother of plaintiff no. 2 and 3. The husband of the plaintiff no. 1 committed suicide on 08.08.2017 after being harassed and tortured by the defendants. The plaintiff no. 1 alongwith her deceased husband and children has been living in the suit property i.e. House no. 1, Gali no. 8A, Sangam Vihar, New Delhi since 1988. The defendants live near the vicinity of the house of the plaintiffs and have been known for carrying on business of money lending in cash and cash equivalents.
3. The deceased husband of the plaintiff no. 1 was also owner of the shop bearing no. E-646/7A, Main Road, Ratia Marg, Delhi (hereinafter referred to as "Suit shop") and the above- mentioned suit property. The deceased husband of the plaintiff no. 1 expired intestate leaving behind the three plaintiffs as his legal heirs. By operation of law, the plaintiffs being the legal heirs have become the rightful owners of the suit property and shop have been in SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:56:45 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 2 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
uninterrupted possession of the house since 1988 and the shop since 2015.
4. It is believed that the deceased husband of plaintiff no. 1 took certain loans from the defendants during his lifetime. The details of these loans are not known to the plaintiffs. However, it is believed that he had repaid these loans during his life time. The original documents of the premises are also believed to be with the defendants which is also mentioned in the suicidal note of the husband of the plaintiff.
5. Subsequent to the demise of husband of plaintiff no. 1, the defendants have been torturing the plaintiffs and threatening them to take the forceful possession of the suit property and the shop. They are claiming that the alleged loans have not been repaid and are threatening to dispossess the plaintiffs illegally. Hence, the present suit.
WRITTEN STATEMENT
6. After institution of the suit, summons were issued to defendants who appeared before the court after service and filed their WS.
7. The defendant no. 1 in his WS has claimed that the husband of plaintiff no. 1 was known to him for a long time and he had approached him with desire to sell the suit shop. After several negotiations, defendant no. 1 agreed to purchase the suit shop for a total consideration amount of Rs.50,00,000/. The entire consideration amount was paid to the husband of SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:56:59 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 3 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
plaintiff no. 1 Late Sh. Janardhan Gupta on 25.01.2016 in cash and in presence of two witnesses known to both the parties. The transfer documents i.e. GPA, Agreement to Sell and purchase, affidavit, receipt, possession letter and Will were executed on 25.01.2016. In presence of two witnesses, namely, Billu Nagar and Salman. The original chain of the property was handed over then and there as symbolic possession. Late Sh. Janardhan Gupta also entered into a rent agreement with defendant no. 1 to run the shop at ground floor and godown on the first floor for a sum of Rs.5,000/- per month. It was also agreed that the actual rent would be Rs.15,000/- as per the local rent but only Rs.5,000/- was mentioned on the basis of mutual understanding.
8. That Sh. Janardhan Gupta used to pay rent of Rs.15,000/- per month to the defendant no. 1 regularly but from May 2017 till his death, no rent was paid. Subsequently, defendant no. 1 came to know about his suicide when he got a call from PS Sangam Vihar informing him that his name is mentioned in the suicide note. It is claimed that plaintiffs have no locus standi to file the present suit as they have only inherited tenancy rights and are precluded from challenging the title of defendant no. 1. The defendant no. 1 also reserved a right to file a separate suit for recovery of arrears of rent and possession of the suit property.
9. Secondly, in her WS, the defendant no. 2 claimed that the suit is based on concocted story to extort money from the defendant no. 2. It is claimed that she had cordial and family Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 16:57:08 TRIPATHY +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 4 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
relations with Late Sh. Janardhan Gupta as he was also residing in the same locality. The plaintiffs as well as Late Sh. Janardhan Gupta had cheated the general public including labourers, domestic helps, rickshaw pullers etc., for a sum of Rs.25 to Rs. 30 Crores by executing endless number of forged and fabricated documents.
10.That the defendant no. 2 purchased one shop alongwith basement in the suit property for a sum of Rs.20,00,000/- in September 2013. The said amount was paid in cash to Sh. Janardhan Gupta. The allegations levelled against the defendants are absolutely vague and frivolous. The defendant no. 2 is the legal and rightful owner of the shop situated at basement of the suit property and the plaintiffs are liable to vacate the property on this ground.
11.Lastly, despite service, defendant no. 3 neither pursued the case nor filed WS. Accordingly, he was proceeded exparte vide order dated 10.09.2018.
REPLICATION
12.Replication was filed by the plaintiffs to the WS filed by defendant no. 1 and 2 wherein the plaintiffs denied all allegations made by the defendants and reiterated the submissions made in the plaint.
ISSUES
13.On the basis of pleadings of the parties, following issues were framed for trial on 25.01.2019:
i) Whether the plaintiff is entitled to injunction Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2023.11.28 16:57:16 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 5 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
against the defendants from illegally interfering with the possession of the plaintiffs in the suit properties? OPP.
ii) Whether the plaintiff is entitled to declaration that the suit properties belong to the estate of the deceased husband of plaintiff no.1? OPP
iii) Relief.
PLAINTIFF'S EVIDENCE
14.Plaintiffs, in support of their case, have placed on record the evidence by way of affidavit of plaintiff no. 3 Sh. Ashish Gupta, vide Ex. PW1/A and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. PW1/1 Suicide note of father of PW1.
2. Ex.PW1/2 (OSR) Office copy of complaint filed before Commissioner of police dated 01.11.2017.
3. Ex. PW1/3 Copy of complaint filed in the court.
4. Ex.PW1/4 Copy of ration card.
5. Ex.PW1/4A Copy of Adhar card of plaintiff no. 1.
6. Ex.PW1/5 Copy of Voter ID card of plaintiff no. 2.
7. Ex.PW1/6 Copy of my Adhar Card
8. Ex.PW1/7 Copies of electricity bills dated 09.12.2011,01.12.2017, 16.11.2016 and 17.01.2018.
SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:57:26 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 6 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
9. Mark A Copy of GPA dated 28.07.1994.
10. Mark B Copy of agreement to sell dated 28.07.1994.
11. Mark C Copy of Will dated 28.07.2015.
12. Mark D Power of attorney dated 01.03.2015.
13. Mark E Agreement to sell dated 01.03.2015.
15.The said witness was duly examined-in-chief, cross- examined and discharged. Thereafter, evidence on behalf of plaintiff was closed vide separately recorded statement dated 15.12.2021.
DEFENDANT'S EVIDENCE
16.Defendant no. 1, in support of his case, has placed on record his evidence by way of affidavit, vide Ex. DW1/A and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. DW1/1 General Power of Attorney dated (OSR) 25.01.2016.
2. Ex. DW1/2 Agreement to sale and purchase (OSR) dated 25.01.2016.
3. Ex. DW1/3 Affidavit in favor of Deponent (OSR) dated 25.01.2016.
4. Ex. DW1/4 Receipt of Payment dated (OSR) 25.01.2016.
5. Ex. DW1/5 Possession letter dated (OSR) 25.01.2016.
6. Ex. DW1/6 Unregistered Will dated (OSR) 25.01.2016.
7. Ex. DW1/7 Documents regarding ownership Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:57:33 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 7 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
(OSR) of properties owned by previous owners.
8. Ex. DW1/8 Copy of rent agreement dated (OSR) 25.01.2016.
17.Defendant no. 1, in support of his case, also examined DW2 Sh. Firay Ram in evidence who tendered his evidence by way of affidavit, vide Ex. DW2/A. Thereafter, defendant no. 2 examined herself as DW2 (inadvertently she has been examined as DW2 instead of DW3) and she tendered her evidence by way of affidavit vide Ex.DW2/X and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. DW2/A Titled document dated 2.09.2013.
2. Ex.DW2/B Titled document dated 7.08.2013.
3. Ex.DW2/C Titled document dated 25.02.2013.
4. Ex.DW2/D Titled document dated 15.01.2003.
5. Mark D-2/1 Statement of Mrs. Usha Gupta
18.All the witnesses were duly examined-in-chief, cross- examined and discharged. Defendant no. 3 neither cross- examined the plaintiff's witness nor led any evidence. Thereafter, evidence on behalf of defendants was closed on 22.05.2023.
Digitally signed by SWAYAMSWAYAM SIDDHA TRIPATHY SIDDHA Date:
TRIPATHY 2023.11.28 16:57:40 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 8 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
FINAL ARGUMENTS
19.I have heard the learned Counsels for both the parties who have argued as per their pleadings and arguments are not being reproduced for the sake of brevity.
DECISION AND REASONING THEREOF
20.Before adverting to the pleadings and evidence led by both the parties, this court deems it necessary to frame an additional legal issue pertaining to the valuation of the suit for the purpose of adjudication of the disputes between the parties. Order 14 Rule 5 CPC empowers the court to amend issues framed or frame additional issues at any stage of proceedings. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties, specifically emerging out of the pleadings. Moreover, this objection of valuation of suit was already pleaded by the defendant no.1 in his written statement and separate evidence was not required to be led on this issue. Accordingly, the following additional issue is being framed:
Whether the suit has been properly valued for the relief of declaration? OPP
21.It is pertinent to note that Section 7(iv)(c) of the Court Fees Act, 1870 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 SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:57:48 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 9 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
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.
22.Ld. Counsel for plaintiff at the stage of final arguments had argued that relief of permanent injunction is a substantial relief and not a consequential relief to declaration as the plaintiffs are in possession of the property. He has also relied upon the judgments in Vikas Wadhwa v. Pradeep Kumar & Ors. 2018 SCC OnLine Del 13056; All India OBC Railway Employees Federation, Indian Railways, New Delhi v. Vasudev Yadav & Ors., 2012 SCC OnLine Del 6394; Arvind Kumar v. Manoj Kumari, 2023 SCC OnLine Del 4853.
23.The Hon'ble Supreme Court of India while dealing with the same issue had held in Padhiyar Prahladji Chenaji (Deceased) Through L.R.s v. Maniben Jagmalbhai (Deceased) Through L.R.s and Ors,. Civ. APP. No. 1382 of 2022 that:
"From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the 11 suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent SWAYAM injunction can be said to be a consequential relief and not a Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:57:58 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 10 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is "not legal or authorised by the law", the plaintiff shall not be entitled to any permanent injunction."
24.Even in the present case, if the relief of declaration is not granted in favour of the plaintiff, then the plaintiff shall also not be entitled to relief of permanent injunction. The right to reside peacefully in the suit property flows from ownership or possessory right. It was also held by Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, that a person who is in possession can protect his possession against the world at large except the true owner. As against the true owner, the equitable remedy of injunction is not to be granted in favour of a plaintiff who is not in lawful possession. Thus, the relief of injunction cannot be separated from the relief of declaration as sought by the plaintiff in the present case.
25.Even otherwise, if mere declaration is sought without any consequential relief then, the court fees shall be computed in accordance with Article 17 (iii) of Schedule II of Court Fees Act i.e. fixed court fees shall be payable; and for the purposes of valuation, Delhi High Court Rules shall be resorted to, wherein it has been stated under Vol. 1, Ch. 3 Part C, Rule 7 that suits in which plaintiff in the plaint asks SWAYAM for a mere declaration without any consequential relief in Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:58:11 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 11 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
respect of property, suit shall be valued at the market value of the property in dispute at the date of institution of the suit.
26.In the present suit, the plaintiff has sought relief of injunction and consequential relief of declaration qua House no. 1, Block Gali no. 8A, Sangam Vihar, Delhi (First floor, basement and one shop) and shop no. E-646/7A, Main Road, Ratia Marg, Delhi.
27.Firstly, section 34 of Specific Relief Act, 1963 prescribes that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. The proviso to this section prescribes that a suit for mere declaration does not lie when the consequential relief such as injunction is available. But, under section 38 of the said Act, the relief of injunction can be granted even if no declaratory relief implicit in the injunction is expressly prayed for. Moreover, relief of injunction does not give any legal right or character in favour of any person which can be asserted while claiming declaration. Thus, seeking declaration as a consequence to relief of injunction is an anomaly and cannot be awarded.
28.Secondly, the plaintiff has stated in his plaint that court fees of Rs.60/- has been affixed with the plaint which includes Rs.39/- for the relief of permanent, mandatory and prohibitory injunction and Rs. 20/- for consequential relief of declaration.
Digitally signedSWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY 16:58:22 Date: 2023.11.28 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 12 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
29.Order VII Rule 1(i) provides that the plaint shall contain a statement of value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. The plaintiff in the present case has not made any specific averment with respect to valuation of the suit for the purposes of jurisdiction. By clever drafting, the plaintiff has avoided specifying the valuation of the suit for the purposes of jurisdiction so as to undervalue the suit as well as claimed declaration as a consequential relief. This clever drafting, has proved to be fatal to the case of the plaintiff as it will have serious bearing on the merits of the case.
30.The Ld. Counsel for plaintiff has relied upon the judgment passed by Hon'ble high Court of Delhi in All India (Supra) and argued that the plaintiff has a right to place any valuation, he likes on the reliefs sought and the Court has no power to interfere with the plaintiff's valuation. Further, the court is required to interfere only if there are materials or objective standards for the valuation of the relief and yet the plaintiff ignores the same and puts an arbitrary valuation.
31.In the instant case, the plaintiff has altogether failed to state the valuation of the suit for the purposes of jurisdiction. The plaintiff herein cannot seek benefit of oversight by the Court for not directing him to rectify or in fact add specific averment regarding valuation. Even otherwise, if this Court considers that the suit is valued at the same amount for the purposes of jurisdiction and court fees, then also the plaintiff is at loggerheads with the prescribed law. The plaintiff has SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:58:30 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 13 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
paid court fees of Rs.20/- for relief of declaration which implies that he has valued the suit at Rs.200/-. However, this amount is grossly undervalued considering that the suit is either to be valued as per the Rule 7, Part C, Ch. 3, Vol. 1 of the High Court Rules or proviso to Section 7 (iv) (c) of Court fees Act. It cannot be stressed enough that the undervaluation of the suit has led to trial by the Court having limited pecuniary jurisdiction.
32.Moreover, the valuation of the suit cannot be arbitrary and unreasonable. The plaintiff has filed the present suit seeking declaration with respect to immovable properties situated at Sangam Vihar, Delhi. Under no circumstance, the market value of the property would be less than Rs. 3 lakhs, which is the limit of pecuniary jurisdiction of this Court. The defendant no.1 has claimed that he has purchased the suit shop bearing no. E-646/&A for a sum of Rs. 50,00,000/-. Defendant no.2 has claimed that she has purchased the suit property bearing no. G-8A/1, Sangam Vihar, Delhi for a sum of Rs. 20,00,000/- from the husband of plaintiff no.1. Thus, the valuation of the suit for the relief of declaration would be at least be Rs.20,00,000/-, if not more. However, it appears that the plaintiff has valued the suit at Rs.200/-. Thus, the plaintiff has grossly undervalued the suit for the purposes of jurisdiction and court fees.
33.In view of the aforesaid reasons, this issue is decided against the plaintiffs and in favour of the defendants.
Digitally signedSWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY 16:58:38 Date: 2023.11.28 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 14 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
Issue No. 1 & 2:
34.The burden to prove these issues was upon the plaintiff. It is a settled law that a plaintiff has to stand on its own and discharge its burden and the necessity of proof cannot be dispensed with.
35.It is the case of the plaintiffs that the husband of the plaintiff no. 1 was the owner of the suit property and the shop as described in the plaint. After his death, the plaintiffs being the legal heirs, have an equal right to estate of the deceased husband of plaintiff no. 1 and father of plaintiff no.2 and 3.
However, the defendants are claiming rights over the properties in question and are disturbing their peaceful possession.
36.For proving their case, the plaintiffs have examined plaintiff no. 3 Sh. Ashish Gupta in evidence. He examined himself in evidence and filed his affidavit Ex.PW1/A. He relied upon the documents as detailed earlier. He has relied upon the copy of property documents viz., GPA, agreement to sell, will dated 28.07.1994, power of attorney and agreement to sell dated 01.03.2015 Mark A to E. It is claimed that the original documents as emerged from the suicide note Ex. PW1/1 are with the defendants.
37.If any document is lost or has been taken away, secondary evidence can be led through a copy made in accordance with Sections 63 and 65 of the Act to establish the document's existence. It be noted that the defendants have neither admitted nor denied the documents Mark A to E. Thus, the SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:58:45 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 15 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
plaintiffs ought to have led secondary evidence with respect to the property documents executed by the husband of the plaintiff no.1.
38.The plaintiffs did not cross-examine the defendant witnesses in this respect. The plaintiffs also failed to examine any other witness to prove that the photocopied documents are copies of the original and are made in accordance of Section 63 and 65 of Indian Evidence Act. As per the Section 63 clause (5), oral account of the contents of the document by a witness who has himself seen it, is considered good in law as secondary evidence. For example, in case an original will is lost, its contents can be authenticated by the oral accounts of the witnesses who attested it. In the present case, PW1 has stated in his cross- examination that his deceased father had purchased the suit property from his tauji Sh. Arvind Kumar Gupta. The plaintiffs however, did not examine Sh. Arvind Kumar Gupta to prove the contents of the photocopied documents. Moreover, neither the executants nor the witnesses to the documents Mark A to E were produced as witnesses before the Court.
39.It be also noted that the defendants produced the original GPA, will, affidavit, possession letter dated 01.03.2015 executed by Late Sh. Janardhan Gupta in their evidence. The copies of these documents were exhibited as Ex. DW1/7 and the originals were seen and returned. Since, it is the claim of the plaintiffs that the original documents might be with the defendants therefore, they could have availed SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:58:54 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 16 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
this opportunity to get their copies compared with the originals in terms of Section 63(3) of IEA but, they failed to do so.
40.When, there is a denial of existence and contents of a private document, it becomes necessary to establish the authenticity and contents of the document through the conventional methods of proving documents and their contents. Secondary evidence can, obviously, be led only of what the document states not as to whether what the document states is true as held by Hon'ble High Court of Bombay in Om Prakash Berlia v. Unit Trust of India, 1982 SCC OnLine Bom 148. Merely proving the document's existence is insufficient. To admit the document as evidence, its contents must be established.
41.In the present case, the plaintiffs have failed to meet the conditions for admissibility of a document as evidence. Not only they have been unable to adequately prove the existence of the pertinent property documents, but they have also faltered in substantiating the specific contents therein.
42.Secondly, the plaintiffs have relied upon the suicide note Ex.
PW1/1 which was left by Late Sh. Janardhan Gupta. The relevant portion of the suicide note as filed by the plaintiff is as under:
"मेरी दु कान के पेपर दीपक स िंघल के पा है। और मकान के पेपर उषा के पा 20 लाख रुपये में रखे हैं मुझे चार पााँ च लोगो ने परे शान कर रखा था मेरे पा कोई इन्तजाम नहीिं था इ सलये मैं इ दु सनया को छोड़कर जा रहा हाँ। मेरे पा भी लेन-दे न था लोगोिं SWAYAM ने हर तरीके े सलये हैं अब ये मेरे बच्ोिं को परे शान न करें सज में Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:59:02 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 17 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
कौशल गुप्ता और दीपक स िंघल मेरे बच्ोिं को परे शान न सकया जाये।"
43.The English translation of the relevant portion of the suicide note is as under:
"The papers of my shop are with Deepak Singhal and the documents are with Usha against Rs.20 Lakh. Four-five persons had been harassing me. I had no arrangement therefore, I am leaving this world. I also had transactions with people and people have taken from me in every manner and now, they should not harass my children including Kaushal Gupta and Deepak Singhal who should not harass my children."
44.It is important to note that mere tendering of a document in evidence does not dispense the burden to prove the same. The plaintiff herein, has relied upon the suicide note Ex.PW1/1 however, he has not proved the same in accordance with law. He has neither examined any witness to prove that the suicide note was written by Late Sh. Janardhan Gupta nor produced any contemporary document vide which the Court could have assessed and verified the handwriting of the deceased. Thus, the contents of the suicide note Ex.PW1/1 cannot be considered.
45.Thirdly, it is the case of the plaintiffs that during his lifetime, Late Sh. Janardhan Gupta may have taken certain loans from the defendants, the details of which are not known to the plaintiff, because of which the property documents may have been handed over to the defendants.
46.During his cross-examination, PW1 admitted that his father knew defendant no.1 from earlier but denied that his father was under debt from a lot of persons. He however agreed Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 16:59:15 TRIPATHY +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 18 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
that he did not know the persons from whom his father had borrowed loan and if his father returned money to anyone. In his cross-examination by Counsel for defendant no.2, PW1 deposed that he did not have any personal knowledge regarding the loans advanced by the defendants or that any police complaint was filed by his father prior to his death against the defendants. He also stated that the defendants used to harass his father by paying a visit to their house however, he admitted that he has not filed any police complaint before the death of his father.
47.The suicide note, even when considered, lacks explicit mention that a loan was extended to the defendants. Although it notes that documents amounting to Rs.20 lakhs are in possession of Ms. Usha, there is no clear indication of whether the loan has been repaid or if the documents pertaining to the suit shop are held by defendant no.1. Beyond the bare allegations and the unproven suicide note, the plaintiffs have failed to present substantial evidence on record to substantiate their claim that the defendants are in possession of title documents against the loan allegedly borrowed by Late Sh. Janardhan Gupta.
48.Fourthly, the plaintiffs have alleged that the documents furnished by the defendants are forged and fabricated. These documents are neither registered nor bear any stamp and hence, do not have any evidentiary value.
49.It be noted that PW1 in his cross-examination, admitted the signatures of his father in Copy of GPA, agreement to sell, SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:59:24 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 19 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
affidavit, receipt, possession letter, will and rent agreement, all dated 25.01.2016 Mark D1 to D7, which was later exhibited as DW1/1 to Ex, DW1/7. He also admitted that these documents pertain to the suit property. He although denied that his father had sold the property bearing no. E646/7A to meet his financial needs but, he admitted that previous title documents were handed over to the defendant by his father. He then denied the signatures of his father on the title documents of defendant no.2 and stated that it seems to be his signature but it cannot be.
50.He also admitted that his father had purchased this property through GPA sale documents from the previous owner and that Sangam Vihar is an unauthorized colony and the sale transactions are executed through GPA. He also admitted that all the title documents are unregistered.
51.The admission that all title documents are unregistered, including that of his father, undermines the plaintiffs' standing to contest the unregistered documents of the defendants, which they claim requires impounding. The acknowledgment that the purchase was facilitated through a GPA reinforces this position. Moreover, PW1 explicitly affirmed his father's signatures on defendant no.1's title documents. With respect to the documents of defendant no.2, no substantive reasons have been presented to cast doubt on the validity of these signatures, further weakening the plaintiffs' argument.
52.Ld. Counsel for plaintiff at the time of final arguments has Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY 16:59:32 Date: 2023.11.28 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 20 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
argued that the plaintiffs are in settled possession of the property since purchase by Late Sh. Janardhan Gupta. Even a trespasser cannot be removed without following due process of law. Even after the alleged purchase of the suit properties, the defendants never issued any notice of termination nor filed a suit for recovery possession. Further, neither any rent agreement was executed between the parties nor any rent paid by them to the defendants.
53.PW1 in his testimony denied that his father took the property on rent after selling the property to the defendant and his father sold the property to defendant no. 1 for repaying his creditors. He deposed that the suit property consists of three shops and they are in possession of all the shops. He then modified and deposed that they are in possession of two shops. He denied that the suit property was sold by his father to defendant no. 2. However, he admitted the signatures of his father on the rent agreement Ex.DW1/8.
54.On the other hand, DW1 deposed that he does not have any rent receipts in respect of the property bearing no. E- 646/7A. He was asked by the court as to whether he had issued any rent receipts and he stated that he had never issued any rent receipts to Late Sh. Janardhan Gupta. He also deposed that he had taken rent from Late Sh. Janardhan Gupta from 01.02.2016 till May 2017. He had not given any notice when he did not receive the rent.
55.Defendant no. 2 admitted that she had not filed any case to Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2023.11.28 16:59:40 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 21 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
take back her property. However, she informed plaintiff to vacate the property when they visited her house. However, she could not tell the time, day or month when they have come to visit her. All the articles belonging to the plaintiff are lying in the property. Late Sh. Janardhan Gupta used to pay rent of Rs.500/- to her from January. The rate of residential flat in that area is around Rs.5000/- per month and for a room in a flat was Rs.500 to Rs.600/- at that time.
56.It is important to emphasize that the onus on plaintiff cannot be alleviated solely through speculations and conjectures. In this context, the plaintiffs' challenge to the validity of the title documents and sale transactions of the defendants cannot be based on the assumption that their settled possession has not been disturbed despite the alleged sale of the suit properties. The new purchasers of any property retain the authority to terminate or evict the occupants from the property. However, any inaction on their part does not, in any way, imply a waiver of the owners' right to ownership or automatically creates doubt over the authenticity of the executed documents. Thus, this contention of the plaintiffs also lacks merit.
57.Lastly, the plaintiffs in order to prove their case, cross-
examined the defendant witnesses regarding the source of funds and the manner of execution of property documents. In his cross-examination, DW1 stated that he is a property dealer and his income in the year 2016 was around Rs.4-5 lakhs but, he is not an income tax payee. He deposed that he SWAYAM had purchased the suit shop for a sum of Rs.50 lakhs from Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 16:59:49 TRIPATHY +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 22 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
Sh. Janardhan Gupta and the amount of Rs. 50 lakhs was given to him by his parents. His father was also a property dealer. He thereafter, said that the money was given to him by his mother who used to work with her at the shop after the death of his father. Then he explained and stated that the money given to him by his mother belonged to his father. It appears that the testimony of DW1 regarding source of funds is highly inconsistent as to who provided the money, however, the witness may be given the benefit of lapse of time.
58.Further, DW1 also stated that he was approached by Late Sh. Janardhan Gupta to purchase the property 2-3 months before he made the payment. There was no agreement to sell before purchase the property and the payment of Rs.50 lakhs was made by him on a single date at the office of his friend Billu Nagar @ Phere Ram who has his own business of building materials. Sh. Janardhan Gupta made the payment in the afternoon. He knows Billu Nagar from a very long time and their shops are in near vicinity. He intimated Billu Nagar regarding purchase of the shop 1-2 days prior and requested him to be a witness. He also met him personally. He and Janardhan arrived at the office of Billu Nagar almost at the same time. He handed over the amount and then he endorsed his signatures. The documents were signed around 5-6 PM at the office of a document writer. No receipt was given at the time of payment and the entire cash was not counted due to faith. He did not remember as to whether Janardhan carried the cash in the SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 16:59:58 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 23 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
same bag which he had brought. It was like a school bag but he did not remember the colour of the bag. He could not tell the amount of time taken by the document writer to prepare the document. Salman was also present at the time of execution of document. He went to the office of document writer alone. The notes were in the denomination of Rs.500/- and Rs.1000/-.
59.Defendant no. 1 also examined Sh. Billu Nagar @ Firay Ram as DW2. He deposed in his cross-examination that he knows defendant no. 1 for the last 24-25 years and his shop is near the house of defendant no. 1. He didn't know the address of Late Sh. Janardhan Gupta but his shop was around 300-400 meters away from his shop. He did not have any dealings with Late Sh. Janardhan Gupta and he knew him as he was working in the same market. He deposed that he was present at the time of execution of GPA and the GPA bears his signature as an attesting witness. The GPA was executed in document shop which is 500 meters away from his shop. Both the defendant no. 1 and Late Sh. Janardhan Gupta called him separately to the documents shop. They had called at around 10 to 11 AM and informed him that the payment would be made after lunch. They had also called him one day earlier and informed him that the payment would be made on the next day. The payment of Rs.50 lakhs was made in cash in his presence and one other person whose name he doesn't know, was also present. The notes were not counted and only the bunch of the notes were counted. The notes were having denomination of Rs.500/- SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2023.11.28 17:00:14 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 24 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
and Rs.1000/-. The counting was done in his office. Defendant no. 1 had brought the entire amount in one polythene wrapped in paper. After receiving the payment, Janardhan Gupta left for his house and it was decided that everyone would turn up for execution of documents to the evening at the shop of document writer. No receipt of payment was given and Janardhan Gupta gave chain of documents to defendant no. 1. A rent agreement was also executed alongwith the GPA which he had seen but not read.
60.Lastly, defendant no. 2 was cross-examined by Ld. Counsel for plaintiff. In her cross-examination, she deposed that she is a housewife and does not work. She has 4-5 residential properties in Sangam Vihar from where she gets rent. All the properties do not have formal rent agreement. Late Sh. Janardhan Gupta used to reside in front of the house of her sister. They were not related but shared a close family relationship. She had known him for the last 20-25 years.
61.Defendant no. 2 further deposed that she had purchased only one property from Late Sh. Janardhan Gupta, whose address she does not remember but the same is in Gali no. 8, Sangam Vihar. The property is a residential property and there is a shop on the ground floor and basement which belongs to her. The size of the shop would be around 8x10 feet. She has not put any board or signage on the shop. The electricity connection in the shop is in the name of Late Sh. Janardhan Gupta and they have never got it changed. No property tax or Municipal tax is paid for properties situated at Sangam Vihar. Late Sh. Janardhan Gupta had asked her if she knew SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 17:00:24 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 25 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
any buyers in the year 2013 as he wanted to sell his property. He had told her that he wants to sell the property at Rs.20- 22 lakhs. After discussion in her house, she offered to buy the property and negotiated the price to Rs.20 lakhs. Late Sh. Janardhan Gupta asked for part payment of Rs.5 lakhs immediately. She paid Rs.5 lakhs in September 2013 by way of cash. She had paid the remaining amount within 3 months after the title documents were handed to her at her house.
62.While there are minor discrepancies in the testimony of the defendant witnesses but, these do not undermine the overall veracity of their statements. The Ld. Counsel for plaintiffs has argued that the defendant no.1 failed to summon the other attesting witness and it should be held against them. However, this contention lacks merit. The plaintiff could have independently summoned and examined such a witness if it was crucial to their case, especially if the witness became hostile to the defendant no. 1.
63.The plaintiffs are neither aware of the loans advanced by their deceased father/husband nor aware as to whether the same have been repaid. The entire case of the plaintiff is based on conjectures and surmises which has not been duly proved before the Court. The plaintiffs have failed to prove that the defendants' documents are forged, fabricated, or executed under coercion by late Sh. Janardhan Gupta. Alternatively, the plaintiffs could have also sought relief of cancellation of documents executed in favor of the defendants by their deceased father/husband. Failure to do so, makes it inconclusive to hold that the suit properties SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2023.11.28 TRIPATHY 17:00:31 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 26 of 27) CS. No. SCJ 223/2018 RADHA GUPTA & ORS V. DEEPAK SINGHAL & ORS.
were indeed not sold by Late Sh. Janardhan Gupta to the defendants before his demise.
64.Even if defendant no.3 was proceeded exparte but, the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree as was held in Maya Devi v. Lalta Prasad, (2015) 5 SCC 588. Nonetheless, the plaintiffs have failed to prove their case against the defendants.
65.Considering the aforementioned reasons and careful assessment of the plaintiff's claims, this court concludes that the plaintiff has failed to meet the burden of proving the issues under consideration. Accordingly, issue no.1 and 2 are decided against the plaintiff and in favour of the defendants.
RELIEF
66.In view of findings on additional issue of valuation of suit and issues No. 1 to 2, the suit of the plaintiff stands dismissed. Parties to bear their own costs.
67.Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance. Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date:
2023.11.28 17:00:42 +0530 Announced in the open court (Swayam Siddha Tripathy) on 28.11.2023 Civil Judge-02(South) (This judgment contains 27 pages Saket Courts, New Delhi and each page has been signed by me.) 28.11.2023 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 28.11.2023 (Page 27 of 27)