Delhi District Court
Shri Gagan Preet Singh vs Smt. Gayatri Devi on 16 August, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 685/07
Unique Case ID No. 02402C0467732005
Shri Gagan Preet Singh
s/o Shri S. Paramjit Singh
r/o 27 A, Gagan Vihar Extension,
Delhi110051.
........... Plaintiff.
VERSUS
Smt. Gayatri Devi
w/o Late Shri Krishan Avtar
r/o G106/1 & G106/2,
Village Khureji Khas, Jagatpuri,
Delhi110051.
......... Defendant.
Date of institution of the suit : 07.09.2005
Date on which order was reserved: 07.08.2012
Date of decision : 16.08.2012
SUIT FOR RECOVERY OF POSSESSION, DAMAGES/MESNE PROFITS AND
PERMANENT INJUNTION.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the owner and landlord of the property bearing house no. G106/1 and G106/2, measuring 50 sq. yards out of rectangle no. 16, killa no. 28/1, situated in village Khureji Khas, Jagatpuri, Delhi51. It has been further stated that on 01.10.2000, at the request of the defendant, the plaintiff inducted the defendant as a tenant in the said entire property at a monthly rent of Rs. 5500/ for residential purposes. It has been further stated that the tenancy of the defendant was the monthly tenancy commencing on the first day of each English calender month and ending on the last day of the said calender month. It has been further stated that since the inception of the tenancy, the defendant has been availing the facilities of electricity and water from the connections installed in the said premises and making the payment of the same directly to the concerned departments as per the actual consumption recorded in the meter. It has been alleged that the defendant is a habitual defaulter in the making of the rent and has not paid the rent from 01.09.2004 to the plaintiff. It has been further stated that the plaintiff sent a legal notice dated 30.04.2005 to the defendant terminating the tenancy of the defendant and demanding the arrears of the rent as well as calling upon the defendant to vacate and deliver the vacant possession of the tenanted premises but despite the service of the legal notice, the defendant failed to comply with the same. It has been further stated that the possession of the defendant after the expiry of the notice period i.e. after 01.05.2005, is unauthorized and illegal and as such the defendant is liable to pay compensation / damages to the plaintiff for use and occupation w.e.f. 01.05.2005 at the rate of Rs.7000/ per month till the date of delivery of the possession. It has been further alleged that after the service of the legal notice, the defendant on 04.07.2005 approached the plaintiff and demanded a hefty amount for vacation of the suit premises. It has been further stated that the defendant threatened the plaintiff to part with the possession and to create third party interest in the suit premises. It has been further stated that the defendant sent a vague reply to the plaintiff. It has been further stated that the plaintiff is entitled to recover a total sum of Rs.1,05,000/ from the defendant towards the amount of the arrears of the rent at the rate of Rs.5500/ per month from 01.02.2004 to 30.04.2005 (which comes to Rs.77,000/) and the damages from 01.05.2005 to 31.08.2005 @ Rs.7000/ per month which comes to Rs.28,000/ besides the pendetelite and future damages till the delivery of the possession of the suit property and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of possession with respect to the suit premises as shown in red colour in the site plan annexed with the plaint. The plaintiff has further prayed for a decree for an amount of Rs.1,05,000/ as prayed for by the plaintiff in para no. 9 of the plaint. The plaintiff has also prayed for pendetelite and future damages / mesne profits w.e.f. 01.07.2005 @ Rs.7000/ per month till the recovery of vacant possession of the suit premises alongwith the interest @ 18% per annum. The plaintiff has further prayed for a decree of permanent injunction restraining the defendants and her agents etc. from making any addition, alteration or structural changes or from creating third party interest in the suit property as shown in red colour in the site plan annexed with the plaint. The plaintiff has also prayed for the costs of the suit as well.
2. Written statement has been filed on record by the defendant stating therein that the present suit is without any cause of action; the plaintiff has not paid the appropriate court fees; the plaintiff has not come to the court with clean hands and suppressed the material facts from this court. The defendant has taken the stand that her husband namely Shri Krishan Avtar was seriously ill on account of failure of his kidneys and for his treatment, the defendant took a loan of Rs.1 lakh or more but below Rs.2 lakhs from the plaintiff in the month of September 2000. The defendant has alleged that the plaintiff cleverly got the alleged documents i.e. GPA, Deed of Will, Affidavit, Possession letter, executed in his favour from the defendant instead of the loan agreement because the defendant is a semi illiterate lady and is ignorant about English language. The defendant has alleged that the documents relied upon by the plaintiff are forged and fabricated and the defendant came to know about the execution of those documents, after the filing of the present suit by the plaintiff on 24.09.2005. It has been further stated that the defendant got cancelled the abovesaid documents from the concerned Sub Registrar office on 25.01.2006. It has been further stated that the defendant has paid the entire loan amount of the plaintiff alongwith interest in the month of July 2005 and as such the present suit is liable to be dismissed with heavy costs. On merits, the defendant has denied the ownership of the plaintiff with respect to the suit property. The defendant has submitted that the plaintiff is taking advantage of his own wrongs as he got the signatures of the defendant on forged and fabricated documents. The defendant has denied that she was inducted as a tenant in the suit property by the plaintiff at any point of time and consequently, the defendant has denied her liability to pay any rent or damages. It has been further stated that she is enjoying the facilities of electricity and water being the owner of the property in question. The defendant has further stated that she is the sole owner/landlord of the property in question. The defendant has admitted the receipt of the legal notice by the plaintiff but has taken the stand that the notice was sent by the plaintiff with the illegal motives to grab the property in question. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
3. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 10.11.2006.
1) Whether the plaintiff has not approached the court with clean hands and suppressed the material facts ? OPD
2) Whether the plaintiff is entitled for the recovery of possession as prayed for ? OPP
3) Whether the plaintiff is entitled for damages/mesne profits ? If so, at what rate and for which period ? OPP
4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?
OPP
5) Relief.
EVIDENCE In order to prove their respective cases, the plaintiff has examined Shri Munesh Kumar, Record clerk from the office of Sub Registrar IV, Nand Nagri, Delhi as PW1, the plaintiff has examined himself as PW2. The defendant has examined herself as DW1, Shri Rajender Verma (brotherinlaw of the defendant) as DW2, Shri Naval Kishore (relative of the defendant) as DW3.
The plaintiff has examined Shri Munesh Kumar, Record clerk from the office of Sub Registrar IV, Nand Nagri, NE Distt. Delhi as PW1 and this witness has proved on record the GPA executed by Smt. Gayatri Devi w/o Shri Kishna Avtar in favour of Shri Gagan Preet Singh s/o Shri S. Paramjeet Singh as Ex. PW1/1 and the Will executed by Smt. Gayatri Devi in favour of Gagan Preet Singh as PW1/2.
In the cross examination, PW1 has admitted it to be correct that the signatures on the original brought by him on Ex. PW1/2 does not bear the similar signatures on the document at point A. PW1 further states that he cannot say as to whether the thumb impression on the Ex. PW1/2 is the same at point B. PW1 has admitted it to be correct that the document Ex. PW1/2 is the photocopy of the record produced by him. PW1 has admitted it to be correct that the document which is produced does not bear the seal of the Registrar office.
The plaintiff has examined himself as PW2 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the site plan Ex. PW2/1, the Agreement to Sell, Affidavit, Payment Receipt and letter of delivery of possession executed by the defendant as Ex. PW2/2 to Ex. PW2/5 respectively, copy of the legal notice dated 30.04.2005, postal receipt and acknowledgment card as Ex. PW2/6 to Ex. PW2/8.
In the cross examination, PW2 has admitted it to be correct that he got the possession of the premises no. 298, Ram Nagar, Delhi in compliance of the possession letter dated 04.09.2000. He cannot tell where the defendant shifted after his locking the premises i.e. after taking the possession. PW2 has admitted it to be correct that the defendant did not execute any sale deed in his favour but executed the GPA, Agreement to Sell and Will etc. PW2 has further stated that he has not issued any legal notice to the defendant to execute the sale deed in view of the Agreement to Sell. PW2 has further stated that the defendant handed over the possession of the suit property to him after execution of the documents but again after 25 days, she took the premises on rent and thereafter, did not hand over the possession. PW2 further states that no rent agreement was executed and he has no documentary evidence to show that the defendant is a tenant in the suit property. PW2 has further stated that the rent of Rs.5550/ per month was paid by the defendant in cash and no rent receipt was issued. PW2 further states that he has no receipt regarding his payment of Rs.1 lakh on 04.07.2000, Rs.90,000/ on 18.07.2000 and on 02.08.2000 to the defendant. By way of volunteer, PW2 has stated that after the full and final payment by him to the defendant, the receipt for these payments were taken by the defendant. PW2 further states that he does not know regarding the illness of the husband of the defendant. PW2 further states that there was no agent in the transaction in between him and the defendant. PW2 further states that the husband of the defendant dealt with him. PW2 further states that his father was also present with him at the time of taking possession of the suit property from the defendant. PW2 further states that he was 20 years old in the year 2000. PW2 further states that he cannot tell that the property was valued more than Rs.20 lakhs in the year 2002 and this fact was known only to his father. PW2 has denied the suggestion that his father had given a loan of Rs.1 lakh or Rs.2 lakhs to the husband of the defendant and the documents were prepared towards the security of that amount. PW2 has admitted it to be correct that Ex. PW2/4 is not registered. PW2 has denied the suggestion that the attorney was executed with respect to the suit property in his name only to lookafter the property and the property was never sold and the amount was given as security by his father to the husband of the defendant. PW2 has denied the suggestion that the receipt Ex. PW2/4 and the attorney Ex. PW1/1 was not executed on the same date. PW2 has denied the suggestion that the documents were executed towards security and he issued the same. PW2 has further stated that his father has not signed any of the documents. PW2 further states that Ex. PW1/1 does not bear his signatures. PW2 further states that he has not issued any letter to the defendant regarding the taking over of the possession of the suit property.
The defendant has examined herself as DW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the defendant in the written statement.
In the cross examination DW1 has stated as under: "I am educated upto 45th standard. I can read Hindi only and I cannot read or write English language. I can identify my signatures. I can also identify the signatures of my husband. The suit properties were purchased by me in the year 1999, probably in the month of April. I had purchased the suit properties from one Mr. Anil Jariwala. I cannot tell as to for how much amount, the suit properties were purchased. Volt. my husband used to deal in the properties and in fact the suit properties were also purchased by my husband. The suit properties were purchased for an amount of Rs. 10,00,000/ (Rs. ten lakh). Again said, I cannot tell the amount correctly. I cannot tell as to whether my husband used to file the income tax returns prior to April 1999. I myself did not use to file the income tax returns. I had visited the office of the Sub Registrar at the time when I purchased the suit properties.
Q. I put it to you as to where are the papers which were executed at the time of purchasing of the suit properties by you ?
A. My husband was terminally ill with kidney disorder and I was not able to afford the money for the treatment of my husband and my husband talked to the plaintiff for obtaining the loan for a sum of Rs.1.5 lakhs. I was present at that time. The plaintiff asked to deposit the title documents of the suit properties which were in my favour with the plaintiff as a security for the loan amount and the plaintiff obtained my signatures in a shop near the suit properties on various documents whose description I do not know.
My husband expired in the year 2003. Plaintiff had obtained my signatures on certain documents in the year 2000. Volt. The loan amount was returned by me to the plaintiff till the end of the year 2002. I have not placed on record any documents to show that my husband was ill in the year 2000. It is wrong to suggest that my husband was not ill in the year 2000. It is wrong to suggest that I had not purchased the suit properties in April 1999 from Sunil Jariwala. It is correct that the suit properties were purchased by me from Ms. Sharda Jariwala. Volt. Sharda Jariwala is the wife of Sunil Jariwala and the negotiations for purchasing the suit properties in fact took place with her husband Sunil Jariwala. It is correct that the entire chain of documents was handed over to me by Ms. Sharda Jariwala at the time of purchasing of the suit properties. Volt. I had handed over the chain as well to the plaintiff. My husband used to know the plaintiff and I personally do not know the plaintiff. I had met the plaintiff for the first time when the plaintiff obtained my signatures on the documents of loan. At the time of putting my signatures on the said documents, my husband was there with me. It is also correct that my husband had put his signatures as a witness on the said documents. It is correct that my husband only had put his signatures as a witness on the said documents. Volt. my brother in law namely Rajender was also present at that time but he had not put his signatures as a witness. Again said, my other brother in law namely Nawal was also present at that time. It is wrong to suggest that my brother in laws namely Rajender and Nawal were not present at that time. The witness is shown a document Ex. PW1/2 and the witness admits her signatures at point X encircled in red and at point Y, the witness states that the signatures appears to be of her husband. It is wrong to suggest that I had put my signatures on the said documents in the office of the Sub Registrar. Volt. I did not visit the office of the Sub Registrar. The witness is shown a document Ex. PW1/1 and the witness states that the photograph at point X is her photograph and the witness states that the signatures and the thumb impressions below the signatures at points X1 to X5 on the said documents are her.
Ld. counsel for the plaintiff wants to ask the signatures of the husband of DW1 and Ld. counsel for the defendant raises an objection to the same on the ground that the witness cannot be asked to identify the signatures of some one else. The objection is over ruled, firstly on the ground that the person whose signatures are being asked, is the husband of DW1 and secondly on the ground that none other but DW1 has herself stated that she can identify the signatures of her husband.
The witness is asked to identify the signatures of her husband at point Y and Y1 on the said document Ex. PW1/1 and the witness states that she is unable to identify the signatures of her husband."
In the further cross examination conducted on 31.03.2011 DW1 has stated as under: "The document Ex. PW2/2 is shown to the witness and the witness admits her photograph at point A1, her signatures at point A2, at point A3 and at point A4. However, the witness is unable to identify her thumb impression on the abovesaid document. The witness has denied the signatures of her husband at point A5 on the said document. The witness is shown the document Ex. PW2/3 and the witness has admitted her signatures at point B1. The witness has denied the signatures of her husband at point B2 on the said document Ex. PW2/3. The witness is shown the document Ex. PW2/4 and the witness has denied her signatures at point C1 and the witness has also denied the signatures of her husband at point C2. The witness is shown the document Ex. PW2/5 and the witness has admitted her signatures at point D1 and D2.
I do not remember as to whether the plaintiff had sent a legal notice to me and the same was replied by me through my Advocate. The witness is confronted with the reply dated 16.05.2005 and the witness states that she is unable to admit or deny the issuance of the said reply dated 16.05.05, the said reply is hereby marked as Mark E1. The envelop is hereby marked as Mark E2. I have not placed on record the documents of cancellation in the court file. I do not remember as to when I came to know about the documents in favour of the plaintiff. I had paid the amount of the loan to the plaintiff in the year 2002, to the tune of Rs.1.5 lacs. The amount of Rs.1.5 lac was given by me at one time in cash to the plaintiff. Out of the amount of Rs.1.5 lac, Rs. 50,000/ were towards the interest and Rs. 1 lac were towards the principal amount. The interest was already taken by the plaintiff. I had taken the loan of Rs.1,50,000/ from the father of the plaintiff.
I had told to my Advocate at the time of filing of the written statement and preparation of my evidence by way of affidavit that I had taken the loan of Rs.1,50,000/ from the father of the plaintiff. The witness is confronted with the para no. 4 and 7 of the written statement wherein it has been recorded that the amount of more than Rs. One lac and less than Rs. Two lac was taken as a loan. It is correct that I have repeated the abovesaid contents of the written statement in my evidence by way of affidavit as well.
I had not taken any receipt from the plaintiff at the time of returning of the loan amount. I had returned the loan amount prior to the death of my husband. Some of the amount of Rs.1.5 lacs was with us and some of the amount was arranged. At that time I was in the business of embroidery. My husband was also in the same business. I had returned the loan amount at the shop of the father of the plaintiff situated in Lal Quarter, Delhi. At that time, Rajender Verma, Naval Verma and Kishan Avtar (my husband), I myself were present. Again said, the amount of loan was returned at a vacant plot adjacent to the shop of the father of the plaintiff. I cannot tell as to who else were present at the time of returning of the loan amount except the persons stated herein above by me and except the father of the plaintiff. I had obtained the previous chain of the documents with respect to the suit property from Ms. Sharda Jariwala and I had handed over the same to the father of the plaintiff at the time when he had got done my signatures on certain documents but I do not remember the date, month or year. It is wrong to suggest that I had sold the suit property to the plaintiff. It is further wrong to suggest that I had gone to the office of Sub Registrar and executed the documents regarding the suit property in favour of the plaintiff. It is further wrong to suggest that I had received the amount from the plaintiff in consideration of the sale of the suit property by me to the plaintiff. It is wrong to suggest that thereafter w.e.f.
01.10.2000, I had taken back the property on rent from the plaintiff at a monthly rental of Rs.5,500/ . It is further wrong to suggest that I am liable to pay the rent w.e.f. February 2004 which has not been paid by me. It is wrong to suggest that I have filed the false affidavit or that I am deposing falsely." The defendant has further examined her brotherinlaw Shri Rajender Verma as DW2 and in his evidence by way of affidavit, DW2 has supported the case of the defendant. In para no.2 of his affidavit Ex. D2, this witness has stated that the defendant took a loan of Rs. 1 lakh or more but below Rs. 2 Lakh from the plaintiff in the month of September 2000 in his presence and in the presence of Shri Naval Kishore. In para no.3 of Ex. D2 (evidence by way of affidavit of DW2), DW2 has stated that the defendant paid the loan amount to the plaintiff in his presence and in the presence of Shri Naval Kishore and the plaintiff had assured to return the documents relating the loan agreement but the plaintiff failed to return the same. DW2 has further stated that the plaintiff had obtained the signatures of the defendant on some blank papers which were forged and fabricated.
In the cross examination, DW2 has stated that the defendant is his sisterinlaw. DW2 further states that in the year 2000, he came to know that the defendant had obtained loan from the plaintiff. By way of volunteer, DW2 has stated that the loan was repaid in 2002. DW2 further states that he came to know about the loan because he had accompanied the defendant alongwith his elder brother namely Kishan Avtar and Naval Kishore for taking the loan of Rs. 1.5 lakhs. DW2 Further states that the loan was taken in the year 2000 but he does not remember the exact date or month. DW2 further states that he was called to accompany, by the defendant for taking of the loan by his elder brother Kishan Avtar. DW2 further states that the third person namely Naval Kishore might have been called by his BHABI or by his elder brother. DW2 further states that he knows the plaintiff Gagan Preet Singh but he does know the name of his father. DW2 further states that the loan was obtained by his elder brother Shri Kishan Avtar from the father of the plaintiff. DW2 further states that at the time of taking of the loan, he himself, his elder brother namely Kishan Avtar, his BHABI and the father of the plaintiff were present. DW2 further states that at the time of taking of the loan, 78 documents were in the possession of the father of the plaintiff and the same were got signed by him from his BHABI but he is not aware about the contents of the documents. DW2 further states that he can identify the signatures of his BHABI. DW2 has identified the signatures of his Bhabi at points X to X5, the signatures of the defendant on Ex. PW2/2 at points A2 to A4, the signatures of the defendant on Ex. PW2/3 at point B1, the signatures of the defendant on Ex.PW2/4 at point C1, the signatures of the defendant on Ex. PW2/5 at points D1 and D2. DW2 further states that he did not put his signatures on any of the documents at the time of taking of the loan. DW2 further states that no receipt was obtained towards the repayment of the loan amount.
The defendant has further examined Shri Naval Kishore, her relative as DW3 and his evidence by way of affidavit is exactly the same as is the affidavit of DW2. This witness has also supported the case of the defendant.
In the cross examination, DW3 has stated that the defendant Gayatri Devi in relation is his Bhabi being the daughterinlaw of his MAUSI. DW3 further states that he came to know about the present suit when the legal notice was served upon the defendant about 45 years back. DW3 further has denied the suggestion that the suit property was sold by the defendant Smt. Gayatri Devi to the plaintiff. By way of volunteer, DW3 has stated that the suit property was mortgaged by the defendant with the plaintiff. DW3 further states that the talks for mortgaging of the suit property took place in his presence with the father of the plaintiff. DW3 further states that the husband of the defendant Smt. Gayatri Devi had telephonically informed him to reach at the house of the father of the plaintiff because the husband of the defendant was ill for a long time and he was in need of money and the money was to be borrowed from the father of the plaintiff. DW3 further states that he knows the father of the plaintiff but not the plaintiff because the father of the plaintiff was dealing in readymade garments. DW3 further states that the talks for borrowing approximately Rs.1.5 lakhs took place in his presence. DW3 further states that he is not aware about the actual amount which was given by the father of the plaintiff but approximately it was Rs.1.5 lakhs. DW3 further states that the father of the plaintiff obtained the signatures of his Bhabi on certain blank papers approximately 89 in number in a vacant plot situated near the shop of the father of the plaintiff. DW3 further states that at that time, the father of the plaintiff had also got the signatures of the defendant on 12 printed papers. DW3 further states that the loan amount was returned in the year 2002 but he does not remember the exact date or month. DW3 further states that the amount which was returned was to the tune of Rs.1.5 lakh approximately and the interest was paid prior to that. DW3 further states that the amount of the interest was not paid in his presence. DW3 further states that the amount of Rs.1.5 lakhs approximately was returned in his presence, in the presence of the husband of the defendant, the defendant herself and one Shri Rajender Verma. DW3 further states that the amount was returned at the shop of the father of the plaintiff and no receipt was executed in lieu of the returning of the said amount. By way of volunteer DW3 has stated that the father of the plaintiff has stated at that time that he will return the documents pertaining to the house of the defendant and the documents which were got signed in blank. DW3 further states that he cannot identify the signatures of the defendant or the signatures of the husband of the defendants.
5. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff and the defendant as well have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
6. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 to 4.
All these issues are taken up together as the same are connected interse and overlap each other.
The onus to prove issue no.1 is upon the defendant and the onus to prove issue no. 2, 3 and 4 is upon the plaintiff. Issues no.2 3 and 4 relate to the prayer clause of the present suit.
The factual controversy and the evidence led by the parties, has already been narrated herein above.
In the written final arguments filed on record by the plaintiff, it has been argued that PW1 Shri Mukesh Kumar, the summoned witness from the office of the Sub Registrar IV has duly proved the execution of Ex. PW1/1 and Ex. PW1/2. It has been further argued that the plaintiff who has been examined as PW2 has duly proved the execution of the documents Ex. PW2/2 to Ex. PW2/8. It has been further argued that the abovesaid documents i.e. the GPA Ex. PW1/1, the Will Ex. PW1/2, the Agreement to Sell Ex. PW2/2, the Possession Letter Ex. PW2/3, Receipt Ex. PW2/4 and the Affidavit Ex. PW2/5 have been able to prove that the immovable property involved in the present suit was sold and transferred by the defendant in favour of the plaintiff. It has been further argued that the sales of immovable properties in Delhi through Power of attorney, Payment Receipt and other connected documents coupled with the delivery of possession are well, recognized in Delhi. It has been further argued that the plaintiff has been able to prove that possession of the property in question was handed over by the defendant to the plaintiff and thereafter, the property in question was given on rent by the plaintiff to the defendant. Ld. Counsel for the Plaintiff has relied upon the cross examination of DWs and has argued that there are vital contradictions in the testimonies of DWs. It has been further argued that the defendant who has been examined as DW1 is absolutely telling a lie about the entire documents executed by her in favour of the plaintiff. It has been further argued that the defence of the defendant as contained in the written statement and the deposition of DWs as is reflected from their cross examination is contradicted to each other and as such the defendant witnesses cannot be relied upon. It has been further argued that the defendant has miserably failed to prove on record the exact amount of the loan, the documentary evidence in respect to the repayment of the loan, the rate of interest and the place of payment as well as the cancellation of the documents on 25.01.2006, as is the stand of the defendant in the written statement. It has been further argued that the defendant has not been able to prove her case and the defendant is also guilty of withholding the best evidence and as such, adverse inference has to be drawn against the defendant. It has been further argued that a bare reading of the cross examination of DW2 and DW3, makes it abundantly clear that both these witnesses are the tutored witnesses having no knowledge of the facts or the transaction in between the parties to the present suit. It has been further argued that in the reply to the legal notice, the defendants took the stand that her husband had taken a loan of Rs.1 lakh or more but below Rs.2 lakh from the plaintiff; in the written statement, the defendant has taken the stand that she took a loan of Rs.1 Lakh or more but below Rs. 2 lakh from the plaintiff in the month of September 2000, but in the cross examination all the DWs have stated that the loan was obtained from the father of the plaintiff and as such, the testimonies of DWs cannot be relied upon at all. It has been further argued that the plaintiff has been able to establish his case to the effect that the suit property was purchased by him for a lawful consideration of Rs. 4,70,000/ on execution of property transfer documents Ex. PW1/1, Ex. PW1/2, Ex. PW2/2 to Ex. PW2/5 and the same was let out to the defendant on 01.10.2000 at a monthly rental of Rs.5500/. It has been prayed that suit of the plaintiff be decreed. Ld. Counsel for the plaintiff has relied upon the following authorities: (1) Cited as 94 (2001) DLT 841 titled as Asha M. Jain Vs. Canara Bank & Ors.
Wherein it has been held as under: "Civil Procedure Code, 1908 Order XXI Rule 58 - Contract Act, 1872 Section 202 Transfer of Property Act, 1882 Section 53 A Execution:
Attachment of Property : General Power of Attorney, Special Power of Attorney and Will Apart from Agreement to Sell Creates Interest in Property in Favour of Appellant and Possession Handed Over: Valuable Rights of Appellant should not be Jeopardized by Attachment Order Concept of power of attorney sales have been recognised as mode of transaction These transactions are different from mere agreement to sell as such, transactions are accompanied with documents including General Power of Attorney, Special Power of Attorney and Will and affidavits Interest created inf avour of appellant Possession handed over Provisions of Section 53 A, T.P. Act also applicable Bank debarred from enforcing any right qua property other than right conferred by agreement to sell Transferor debarred from claiming back property from appellant Rights created in favour of appellant cannot be defeated by attachment order Suit filed in 1986 If bank had knowledge of this property being owned by respondent no.3, no proceedings were taken for interim protection durijng pendency of suit - No execution proceedings taken for 2½ years post decree - Impugned order set aside - Attachment order in respect of property in question revoked."
(2) Cited as 151 (2008) Delhi Law Times 230, titled as Rama Devi Vs. Punam Chand Aggarwal, wherein it has been held as under: "Sale of Immovable Property Sales in Delhi through Power of Attorney, coupled with payment receipt, delivery of possession and other connected documents well recognized in Delhi."
(3) Cited as 151 (2008) Delhi Law Times 237 titled as Vijay Chaudhary Vs. Gyan Chand Jain, wherein it has been held as under: "Criminal Procedure Code, 1973 Section 482 Negotiable Instruments Act 1881 Section 138 Dishonour of cheque Quashing of complaint Attachment of bank account of petitioner after issuance of cheque, but prior to its presentation for encashment After attachment of account same not maintained by petitioner Once account has been attached by order of Court, said account could not be operated by petitioner He could not have issued any binding instructions to his banker and banker was not obliged to honour any of his instructions in relation to said account, so long as attachment under Court orders continued Act of attachment under bank account of drawer / petitioner cannot be said to be voluntary act of drawer."
(4) Cited as 1982 Rajdhani Law Reporter 232 titled as Union of India Vs. Syed Shah Nasir Husain, wherein it has been held as under: "Civil P.C., O. 14. Issues and decision should be confined to pleas and pleadings. If adverse possessing is not actually claimed, Court cannot grant any relief on this."
(5) Cited as 187 (2012) Delhi Law Times 73, titled as Rameshwar Dass Vs. Hakim Javed & Ors., wherein it has been held as under: "Civilized Jurisprudence A civil case is decided on balance of probabilities Balance of probabilities is arrived at after weighing respective evidence which is led by both parties."
(6) Cited as 187 (2012) Delhi Law Times 80 titled as Dhootapapeshwar Industries Ltd. Vs. Atma Ram & Another, wherein it has been held as under: "Delhi Rent Control Act, 1958 Section 14 (1)(b) Eviction Protection of tenant Possession Subletting necessarily meaning that owner has completely divested himself of suit property and is in no manner connected with the same."
(7) Cited as AIR 1968 Supreme Court 1413 titled as Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others, wherein it has been held as under: "Evidence Act (1872), Secs. 114 (g) and 103 A party in possession of best evidence which would throw light on the issue in controversy withholding it Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him."
(8) Cited as AIR 1968 Supreme Court 1416 titled as S. Kirpal Singh Duggal Vs. Municipal Board, Ghaziabad, wherein it has been held as under: "Municipalities U.P. Municipalities Act (2 of 1916), Ss. 157 (3) 128, 326, 153 (c), 160, 162 and 164 Rules under S. 296, R 5 Claim for refund of tax exempted by Government Order issued under S. 157 (3) Claim entertainable in a Civil Court Ss. 326, 153 (c), 160, 162 and 164 do not oust Civil Court's jurisdiction, which does not depend on prior compliance with condition mentioned in R.5 proved under S. 296, viz. That the claim should be made within six months of the date of payment of the tax Rule is a rule of procedure for claiming refund from Municipality and not a condition precedent for the claim Non compliance only entitles Municipality to decline to refund the toll and relegate the claimant to a suit."
Whereas on the other hand, in the written final arguments filed on record by the defendant, it has been argued that the documents relied upon by the plaintiff do not constitute a valid contract in accordance with the mandate of section 10 of the Indian Contract Act. Ld. Counsel for the defendant has relied upon the following authorities: (1) Cited as 2011 (4) Civil Court Cases 558 (S.C.) titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. wherein it has been held as under: "Transfer of Property Act, 1882, S. 54, Registration Act, 1908, S. 17 Transfer of immovable property Sale agreement, general power of attorney and Will do not convey any title nor create any interest in an immovable property Immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance."
(2) Cited as AIR 1994 Orissa 111, titled as Kuma Dei Vs. Md. Abdul Latif, wherein it has been held as under: "Evidence Act (1 of 1872), S. 111 Execution of document by illiterate lady Proof of execution Scribe of deed appearing as sole witness but not making statement that he had read over and explained contents of document to executant lady No other direct or circumstantial evidence that executant lady had understood nature and contents of agreement Due execution not proved Document invalid."
(3) Cited as AIR 1994 Orissa 113 titled as Sri Kishore Ray Thakur Bije Vs. Smt. Basanti Kumar Das and others, wherein it has been held as under: "Evidence Act (1 of 1872) Ss. 101 to 104 Transfer of Property Act (4 of 1882) S. 122 Execution of document Onus of proof Protection available to pardanashin lady Gift deed alleged to have been taken from her by practicising fraud Failure to establish fraud Yet, onus is upon defendant to establish fact that document was read over and explained to her." (4) Cited as 1956 Calcutta 575 (AIR V 43 C 162 Nov.) titled as Smt. Patal Bala Debi Vs. Santimoy Majumdar, wherein it has been held as under: " Contract Act (1872), Ss. 19, 13, 14 Deed vitiated by fraud Gift by illiterate woman instead of deed authorizing management of her property.
Where A, an illiterate woman, executes a deed under the impression that she is executing a deed authorizing B, her distant nephew, to manage her lands, but within a few months detects that it was in reality a deed of gift of those lands in favour of B and the evidence shows that A never intended to execute such a deed of gift and that the deed was not read over or explained to here before she singed it."
(5) Cited as 1956 Calcutta 577 ({S} AIR V 43 C 163 Nov.) titled as Chandrakanto Goswami Vs. Ram Mohini Debi and others, wherein it has been held as under: "Hindu Law Applicability Migration Presumption as to lex loci Nature of Migration from U.P. to Bengal Applicability of Dayabhaga law Burden of proof Time of migration Necessity to prove (Evidence Act (1872), Ss. 114, 101104), 1920 Cal 335 (AIR V 7), Dissented from."
Relying upon the ratio of the above stated authorities, Ld. Counsel for the defendant in the written final arguments has argued that the defendant put her signatures on the documents presuming the same to be the documents of loan and not on the documents of the transfer of the suit property and as such, the said documents cannot be relied upon by the plaintiff. It has been further argued that the plaintiff has miserably failed to prove that the defendant is a tenant. It has been further argued that the plaintiff has examined himself as PW2 and not even a single independent witness has been brought to the witness box by the plaintiff to corroborate his testimony and to prove that the plaintiff had ever taken the possession of the suit property at any point of time. It has been further argued that the documents relied upon by the plaintiff are merely the GPA, Deed of Will, Affidavit, Possession letter etc. which do not constitute a valid transfer of immovable property in favour of the plaintiff. Ld. Counsel for the defendant has relied upon the authorities cited as 2011 (4) Civil Court Cases 558 (S.C.) titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. Ld. Counsel for the defendant has further relied upon the contradictions in the testimonies of PW2 when he was cross examined and has argued that the plaintiff had dealt with the husband of the defendant and not with the defendant and as such, his testimony cannot be relied upon. It has been further argued that the plaintiff has miserably failed to prove his case and as such, the suit of the plaintiff is liable to be dismissed.
In the light of the abovesaid pleadings and evidence led by the parties, the vital question to be determined by this court is as to whether the plaintiff has been able to prove on record that the defendant was inducted as a tenant by him in the suit property as is the case of the plaintiff and as to whether the plaintiff has become the owner of the suit property by virtue of the documents Ex. PW1/1, Ex. PW1/2, Ex. PW2/2 to Ex. PW2/5.
I am of the opinion that Ld. Counsel for the defendant has rightly argued that there are certain contradictions in the testimonies of DWs. In the written statement filed on record, the defendant has taken the stand that her husband was suffering from kidney failure and she had taken a loan of Rs.1 lakh or more but below Rs. 2 lakhs from the plaintiff in the month of September2000. The defendant has further stated that under the pretext of getting executed the documents of loan, the plaintiff obtained the signatures of the defendant on certain papers and thereafter, forged and fabricated the documents relied upon by the plaintiff in the present suit. In the evidence by way of affidavit, DW1 i.e. the defendant herself has reiterated her abovesaid stand as taken by her in the written statement. But in the cross examination, DW1 i.e. the defendant has stated that she had taken the loan of Rs.1.5 lakhs from the father of the plaintiff. Similarly DW2 and DW3 who are the brothersinlaw of the defendant, in their evidence by way of affidavits have taken the stand the defendant had obtained the loan from the plaintiff but in the cross examination, DW2 has stated that the loan was obtained by his elder brother i.e. the husband of the defendant herein from the father of the plaintiff and DW3 has also stated that the loan was taken from the father of the plaintiff. It is also true that the defendant has taken the stand that the said documents were got cancelled by her from the office of the Sub Registrar on 25.01.2006 but no such documents of cancellation have been placed no record by the defendant. It is also true that the defendant has utterly failed to place on record any documentary evidence to show the repayment of the loan to the plaintiff as is the stand of the defendant in the written statement.
But the settled law is that the plaintiff cannot be allowed to take the benefit of lacunas left by the defendant in proving its own case or in proving its own stand as taken by the defendant in the written statement. The plaintiff has come to the court to seek the relief and as such, the plaintiff has to stand upon his own legs in order to obtain the relief from the court. The plaintiff has to prove his own case by way of independent, cogent and reliable evidence. In these circumstances, despite the fact that there are contradictions in the testimonies of DWs, the question which has to be considered by the court is as to whether the plaintiff has been able to prove his own case by way of independent, cogent, reliable and trustworthy evidence. As stated by me herein above, the plaintiff has to prove that he has become the owner of the property in question by virtue of the documents Ex. PW1/1, Ex. PW1/2, Ex. PW2/2 to Ex. PW2/5. The plaintiff has to further prove that he had taken the possession of the suit property from the defendant and thereafter, let out the same to the defendant at a monthly rental of Rs. 5500/ just after 25 days of the date of purchase.
Ld. Counsel for the defendant during the course of arguments has vehemently argued that the defendant in the case in hand is an illiterate lady and the contents of the document were not read over or explained to her and as such, the documents allegedly executed by the defendant which have been relied upon by the plaintiff cannot be relied upon. In the case in hand, it has to be seen that the defendant has herself stated that besides her husband, she was accompanied by DW2 and DW3 at the time of taking the loan. Assuming that the defendants is illiterate but she is accompanied DW2 and DW3, it cannot be said that the defendant was not able to comprehend the contents of the documents. Furthermore, it has to be seen that the defendant herself in the cross examination as well as the other DWs, particularly DW2, have admitted the signatures of the defendant on the documents filed on record by the plaintiff. The plaintiff has further examined the witness i.e. PW1 from the office of the Sub Registrar and this witness has duly proved on record the registration of the GPA Ex. PW1/1 and the registration of the Will Ex. PW1/2 with the office of the Sub Registrar. The defendant has also identified her photograph on the said documents during her cross examination. Needless to mention that the GPA Ex. PW1/1 and the Will Ex. PW1/2 are the registered documents. As such, I am of the opinion that the submission of Ld. Counsel for the defendant that the said documents Ex. PW1/1 Ex. PW1/2 and Ex. PW2/2 to Ex. PW2/5 were not duly executed, does not hold much water. I am of the opinion that the abovesaid documents were duly executed by the defendant.
Now coming to the next argument of Ld. Counsel for the defendant that even if the said documents were duly executed, then also the same cannot convey a valid title with respect to the immovable property i.e. the suit property in favour of the plaintiff. The Ld. Counsel for the defendant has relied upon the authority cited as 2011 (4) Civil Court Cases 558 (S.C.) titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. and argued that transfer of immovable property can be done only by way of sale deed and not by way of GPA, Will and Agreement to Sell. Ld. Counsel for the plaintiff has argued that the execution of the GPA, SPA, Will, Agreement to Sell creates interest in the immovable property and the same constitute a valid transfer of immovable property. It has to be seen that the authorities relied upon by the Ld. Counsel for the plaintiff are of the year 2001, 2008, but the authorities relied upon by Ld. Counsel for the defendant are of the year 2011. By virtue of Article 141 and 142 , the law as laid by the Hon'ble Supreme Court of India is the law of land and binding upon all the courts in the country. As such, I am of the opinion that the abovesaid documents relied by the Ld. Counsel for the plaintiff cannot convey a valid transfer of immovable property in favour of the plaintiff.
Furthermore, it has to be seen that the plaintiff has also failed to prove on record that he had obtained the possession of the suit property from the defendant at the time of execution of the abovesaid documents in his favour. The plaintiff besides himself has not examined any other witness so as to corroborate his testimony. The plaintiff has deposed that at the time of taking possession, his father was with him but the plaintiff has failed to bring his father to the witness box and to examine him to prove the fact that the possession of the suit property was taken over by the plaintiff. I am of the opinion that no documentary evidence has been placed on record by the plaintiff to show his physical possession over the suit property.
The plaintiff has come to the court on the ground that the suit property was let out by him to the defendant just after 25 days from the date of purchase. The question is as to whether the plaintiff has been able to prove his abovesaid stand that the defendant was inducted as a tenant in the suit property by him. If the evidence led by the parties is carefully gone through, to my mind, the only inevitable conclusion is that the plaintiff has utterly failed to prove the induction of the defendant as a tenant in the suit property by him. Needless to mention that the defendant has himself admitted that there is no rent agreement or any rent receipt to prove the factum of tenancy. There is no documentary evidence on record to prove the tenancy. So far as the oral tenancy is concerned, the plaintiff has failed to examine any other witness besides himself. As such, I am of opinion that it has been rightly argued by Ld. Counsel for the defendant that the plaintiff has failed to prove that the defendant was inducted as a tenant in the suit property by the plaintiff.
In the light of the abovesaid discussion, I am of the opinion that the plaintiff has concealed the material facts from this court and as such, issue no.1 is decided against the plaintiff and in favour of the defendant. The plaintiff has also failed to prove issues no. 2, 3 and 4 as well, in his favour and accordingly, all the abovesaid three issues i.e issues no. 2 to 4 are decided against the plaintiff.
Relief.
In the light of my findings upon the foregoing issues, the suit of the plaintiff is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 16th day of August 2012 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.