Delhi District Court
Sh. Mohan Lal (Now Deceased Through Lrs) ... vs . Sh. Yaspal Mahajan (Since Deceased ... on 28 April, 2018
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer: Balwinder singh, DJS
Civil Suits No. : 93486/16,
Counter claim no. : 93320/16
(A) Parties in suit no. 93486/16
1. Sh. Mohan Lal (now deceased through LRs)
(i) Sh. Niranjan Singh
S/o Late Sh. Mohan Lal
R/o WZ359, Village Shadipur
West Patel Nagar, New Delhi.
(ii) Sh. Suresh Kumar
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(iii) Sh. Rajinder Parsad
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(iv) Sh. Narender Pal
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(v) Sh. Ashok Kumar
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(vi) Sh. Sunil Dutt
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and
Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 1 of 24
(vii) Smt. Kaushalaya Devi
D/o Late Sh. Mohan Lal
W/o Sh. Shyam Avatar
R/o S559, School Block,
Shakupur, PartII, Delhi110092.
(vii) Smt. Saroj Devi
D/o Late Sh. Mohan Lal
W/o Sh. Baal Kishan
R/o D3, 101B, Ram Vihar,
Near Sector22, Rohini,
Delhi110085.
2. Sh. Mukesh Kumar
3. Sh. Vijay Kumar (now deceased through LRs)
(i) Smt. Seela
W/o Sh. Vijay Kumar
(ii) Rohit
S/o Sh. Vijay Kumar
(iii) Mohit
S/o Sh. Vijay Kumar
All residents of
3285, Ranjit Nagar, South Patel Nagar,
New Delhi11008.
4. Sh. Krishan Kumar
5. Sh. Lalit Kumar
All sons of Late Sh. Sher Singh,
R/o WZ34, Shadipur, West Patel Nagar,
New Delhi.
.......all Plaintiff in suit no. 93486/16,
Vs.
Sh. Yaspal Mahajan
(since deceased through his LRs)
i. Smt. Savita Mahajan
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and
Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 2 of 24
W/o Sh. Sudhir Mahajan
R/o H. No. B1/603, Janak Puri,
New Delhi.
ii. Sh. Sarvesh Mahajan
iii. Sh. Sandeep Mahajan
iv. Sh. Mukul Mahajan
All resident of
B1/149, Janakpuri,
New Delhi.
......Defendant in suit no. 93486/16,
(B) Parties in counter claim no. 93320/16
Sh. Yaspal Mahajan
(since deceased through his LRs)
i. Smt. Savita Mahajan
W/o Sh. Sudhir Mahajan
R/o H. No. B1/603, Janak Puri,
New Delhi.
ii. Sh. Sarvesh Mahajan
iii. Sh. Sandeep Mahajan
iv. Sh. Mukul Mahajan
All resident of
B1/149, Janakpuri,
New Delhi.
.......Plaintiff in suit no. 93320/16
vs.
1. Sh. Mohan Lal (now deceased through LRs)
(i) Sh. Niranjan Singh
S/o Late Sh. Mohan Lal
R/o WZ359, Village Shadipur
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and
Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 3 of 24
West Patel Nagar, New Delhi.
(ii) Sh. Suresh Kumar
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(iii) Sh. Rajinder Parsad
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(iv) Sh. Narender Pal
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(v) Sh. Ashok Kumar
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(vi) Sh. Sunil Dutt
S/o Late Sh. Mohan Lal
R/o WZ35, Village Shadipur
West Patel Nagar, New Delhi.
(vii) Smt. Kaushalaya Devi
D/o Late Sh. Mohan Lal
W/o Sh. Shyam Avatar
R/o S559, School Block,
Shakupur, PartII, Delhi110092.
(vii) Smt. Saroj Devi
D/o Late Sh. Mohan Lal
W/o Sh. Baal Kishan
R/o D3, 101B, Ram Vihar,
Near Sector22, Rohini,
Delhi110085.
2. Sh. Mukesh Kumar
3. Sh. Vijay Kumar (now deceased through LRs)
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and
Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 4 of 24
(i) Smt. Seela
W/o Sh. Vijay Kumar
(ii) Rohit
S/o Sh. Vijay Kumar
(iii) Mohit
S/o Sh. Vijay Kumar
All residents of
3285, Ranjit Nagar, South Patel Nagar,
New Delhi11008.
4. Sh. Krishan Kumar
5. Sh. Lalit Kumar
All sons of late Sh. Sher Singh
R/o WZ34, Shadipur, West Patel Nagar,
New Delhi.
.......defendants in suit no. 93320/16
Date of Institution of suit : 29.04.05 & 02.09.2005
Date on which reserved for judgment : 27.04.2018
Date of Judgment : 28.04.2018
JUDGMENT
(1) Vide this judgment, I shall dispose off the above said suit bearing no.
93486/16 filed by the plaintiffs and the counter claim bearing no. 93320/16 filed by the defendant.
(2) In suit bearing no. 93486/16, the plaintiffs Mohan Lal (now being represented through his LRs since deceased), Mukesh Kumar, Vijay Kumar, Krishan Kumar and Lalit Kumar are seeking the following relief : Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 5 of 24
a) A decree of declaration may be passed in favour of the plaintiffs and against the defendant Yashpal Mahajan thereby declaring that the occupation and possession of the defendant in respect of the suit property is in the nature of mortgage as per the agreement dt. 23.10.1975.
b) A decree of redemption of mortgage may be passed in favour of the plaintiffs and thereby the mortgage created vide agreement dt. 23.10.1975 may be ordered to be redeemed on payment of security amount of Rs. 15000/ and that the property no. 17/3026 min, situated at village Shadipur, Abadiat Ranjeet Nagar, New Delhi08, shown in red and yellow colour in the site plan. (hereinafter referred to as "the suit property") may be declared as free from encumbrance of the said mortgage.
c) A decree of possession may be passed in favour of the plaintiffs and against the defendant thereby directing the defendant to vacate and deliver the possession of the suit property and also that he may further be directed to remove the construction shown in the yellow colour or in the alternative the cost / compensation in respect thereof be ascertained which the plaintiffs are ready and willing to pay.
d) A decree of Rs. 33500/ as damages till the date of filing of the suit alongwith interest @ 12% p.a. may be passed in favour of the plaintiffs and for damages @ Rs. 500/ with interest from the date of the filing of the suit till the possession of the suit property is delivered by the defendant may also be passed.
(3) In counter claim bearing no. 93320/16 the defendant / counter claimant Yashpal Mahajan is seeking the following relief : A decree of specific performance may be passed in favour of the counter claimant and against the respondents Mohan Lal (now being represented through his LRs since deceased), Mukesh Kumar, Vijay Kumar, Krishan Kumar and Lalit Kumar, thereby directing the respondents/plaintiffs to execute a sale deed in respect of the suit property no. 17/3026 min, situated at village Shadipur, Abadi at Ranjeet Nagar, New Delhi08 in his favour for which the counter claimant is ready and willing to pay the necessary charges for completion and registration of sale deed.
(4) In brief, the facts as pleaded by the plaintiffs in suit bearing no. 93486/16 are following : (A)(1)That the plaintiffs are the joint owner of property no. 17/3026 min, consisting of two rooms, courtyard with enclosure constructed on a piece of land measuring 200 sq. yds. bearing Khasra No. 7, situated in the area of Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 6 of 24 Village Shadipur, Abadi of Ranjeej Nagar, New Delhi ( suit property). The suit property is shown in red color in the site plan attached with the plaint. (2) That the plaintiff no. 1 and late Sh. Sher Singh S/o Sh. Hari Chand @ Har Chand jointly inherited the suit property and became coowners.. Late Sh. Sher Singh died on 27.09.1977 leaving behind the plaintiffs no. 2 to 5 as his legal heirs who stepped into his shoes and became the coowner of the suit property jointly with plaintiff no.1 having thier half share (3) That vide agreement dt. 23.10.1975, the plaintiff no. 1 and his brother Late Sh. Sher Singh, who was also the father of plaintiff no. 2 to 5, agreed to mortgage the suit property with possession to the defendant for a security of Rs. 15,000/. The defendant paid Rs. 15,000/ to the plaintiff no. 1 and late Sh. Sher Singh as security amount and in part performance of the agreement the plaintiff no. 1 and Sher Singh delivered the possession of the suit property to the defendant. It was agreed at the time of entering into the agreement that the mortgage deed shall be executed and registered in accordance with law as and when permissible after obtaining necessary permission from the competent authorities. It was also agreed that the security amount shall not carry any interest and that defendant shall not be liable to pay occupation charges of the property.
(4) That after the receipt of the possession of the suit property, the defendant did not come forward and mortgage deed could not be executed and registered on account of his default, though the plaintiffs were always ready and willing to perform their part of obligation to execute and get registered the mortgage deed.
(5)That on various occasions the plaintiffs offered the defendant to accept and receive the security amount of Rs. 15,000/ but the defendant avoided to receive the same on one pretext or the other.
(6)That the defendant instead of accepting the security amount and to deliver back the possession of the suit property, without the consent and permission Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 7 of 24 of the plaintiffs illegally and unauthorized raised construction at the suit property by extending the construction of rooms and thereafter also constructed the first floor.
(7)That lastly the plaintiffs got served a notice dt. 22.01.05 upon the defendant enclosed with a cheque no. 410872 dt. 22.12.04 for a sum of Rs. 15,000/ drawn on Indian Bank, West Patel Nagar, New Delhi for paying the security amount and thereby expressly redeemed the mortgage by giving 15 days time in the notice.
(8)That the notice dt. 22.01.05 was duly served upon the defendant but the defendant returned the aforesaid cheque after canceling the same alongwith a false and frivolous reply and failed to deliver the vacant and peaceful physical possession of the suit property.
(9)That on the service of the legal notice dt. 22.01.05 and after the expiry of 15 days from the receipt of the same, the agreement of mortgage stands revoked and the mortgage also stands redeemed. As such the defendant has no right to continue with the possession of the suit property and accordingly the occupation and possession of the defendant is unauthorized and in the nature of trespass w.e.f 20.02.05.
(10) That defendant is liable to pay damages w.e.f. 20.02.05 @ Rs. 500/ per day up to the date of filing of the suit amounting to Rs. 33,500/. The defendant is also liable to pay damages @ Rs. 500/ per day till the possession of the suit property is delivered. Hence, the present suit. (B) Pursuant to the summons received from the court in above said suit, the defendant made his appearance in the court through his counsel and filed a written statement alongwith counter claim. In his written statement, the defendant has taken the following preliminary objections :
i) That the suit of the plaintiffs is barred by order 2 Rule 2 of CPC.
ii) That there is no transaction of mortgage but of sale, which provides protection to the defendant u/s 53 A of Transfer of Property Act (TP Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 8 of 24 Act).
iii) That the plaintiffs have not approached the court with clean hand and have concealed material facts
iv) That the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction.
On merits, the defendant has averred that the document dt. 23.10.1975 in a sense is an agreement to sell and the suit property is in possession of the defendant, who has become owner thereof within the meaning of Sec. 53 A of TP Act particularly in view of the fact that he has paid the entire consideration amount and has fulfilled all the conditions of the sale. The defendant has further stated that he has performed his part of the contract in pursuance of the agreement and paid the entire consideration amount and though it was also agreed that the plaintiffs shall also execute the necessary documents such as sale deed, however, instead of fulfilling their obligation of executing the necessary sale deed as per agreement dt. 23.10.1975, the plaintiffs have now filed the present false suit only in order to evade their responsibility. It is further submitted by the defendant that the plaintiff no. 1 had earlier filed a suit for perpetual injunction based on an altogether different story, however, when he failed to cut any ice, he filed the present false and frivolous suit. The defendant has denied that the suit property was secured against the alleged loan of Rs. 15,000/ and has claimed that the same was the full and final consideration amount which was received by the plaintiffs. Rest of the averments of the plaint were denied by the defendants.
(C) The plaintiffs filed a replication to the WS of the defendant wherein they refuted the averments of the WS and reiterated the averments of their plaint.
(5) (A) (1) In his counter claim bearing no. 93320/16, the counter claimant / defendant Yashpal Mahajan has reiterated almost the same facts as pleaded in Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 9 of 24 his WS submitting that the transaction / agreement dt. 23.10.1975 amounts to sale of the suit property and accordingly he is entitled to the statutory protection u/s 53A of TP Act and is also entitled for a decree for specific performance of contract.
(B) In their rejoinder to the counter claim, the respondents / plaintiffs have taken the preliminary objection that the agreement in question is not an agreement to sell and accordingly no claim for specific performance can be filed.
On merits also, the respondents/plaintiffs have denied the claim of counter claimant/defendant that the agreement in question is an agreement to sell or that counterclaimant is entitled to any protection under Section 53A of Transfer of Property Act.
(6) On the completion of the pleadings in main suit, after hearing following issues were settled between the parties:
(i) Whether the suit of the plaintiff is barred under Order 2 Rule 2 of CPC, as alleged in the written statement? OPD.
(ii) Whether the suit of the plaintiff is barred by Limitation? OPD.
(iii) Whether the suit of the plaintiff is under valued for the purposes of court fees and jurisdiction? OPD.
(iv) Whether the defendant has become the owner of the suit property by virtue of Section 53A of Transfer of Property Act? OPD.
(v) Whether the plaintiff is entitled to a decree of declaration, as prayed for? OPD.
(vi) Whether the plaintiff is entitled to a decree of redemption, as prayed for? OPP.
(vii) Whether the plaintiff is entitled to a decree of possession of the suit property? OPP.
(viii) Whether the plaintiff is entitled to damages, as prayed for? If so, at what rate and for what period. OPP.
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 10 of 24
ix) Relief.
(7) Similarly, in the counterclaim, the following issues were settled between the parties:
(i) What is the effect of document dated 23.10.1975? Onus of proof on parties.
(ii) Whether the counterclaimant has become the owner of the suit property by virtue of Section 53A of Transfer of Property Act? OCC.
(iii) Whether the counterclaim is barred by period of Limitation? OPD.
(iv) Whether the counterclaimant is entitled to the relief of specific performance, as prayed for? OCC.
(v) Relief.
(8) It is pertinent to mention here that as in both the suit and the counterclaim, the suit property was the same and both the sides were also seeking the relief with respect to same suit property and as the facts pleaded by the parties in their respective suit and counterclaim were also similar, both the suit and counterclaim were directed to be consolidated for the purpose of evidence by the then Ld. Civil Judge vide its order dt. 15.02.2006.
(9) In order to prove their case, the plaintiffs have examined total four witnesses.
PW1 is plaintiff Mohan Lal (now deceased) who was examined before the Local Commissioner Sh. Brijesh Yadav (Advocate) due to his ill health. PW 1 tendered his evidence by way of affidavit which is Ex.P1 before the Ld. Local Commissioner. He has also relied upon the following documents :
1. Ex.PW1/1 is the site plan of the suit property.
2. Ex.PW1/2 is the certified copy of the Khasra Girdawari.
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 11 of 24
3. Ex.PW1/3 is the agreement dated 23.10.1975.
4. Ex.PW1/4 is the site plan showing the illegal and unauthorized construction alleged to be raised by the defendant/counterclaimant at the suit property.
5. Ex.PW1/5 is cheque bearing No.410872 in a sum of Rs.15,000/ drawn on Indian Bank, West Patel Nagar, New Delhi, issued by the plaintiff for paying the security amount of Rs.15,000/ to the defendant.
6. Ex.PW1/6 is the copy of legal notice dated 22.01.2005.
7. Ex.PW1/7 is the AD Card.
8. Ex.PW1/8 is the copy of the returned canceled cheque.
It is pertinent to mention here that PW1 could not be completely cross examined as before his cross examination could be complete, he died during the pendency of the suit. Accordingly, vide order dated 20.05.2010, his LRs were impleaded as party to the suit. Further, plaintiff No.3 also expired during the plaintiff's evidence and accordingly, his LRs were also impleaded as party to the suit vide order dated 25.07.2014.
PW2 is Sh. Rajender Prasad, son of the deceased plaintiff and he tendered his evidence by way of affidavit Ex.PW2/A and also relied upon the same documents as relied upon by PW1.
PW3 is Sh. Mukesh Kumar, plaintiff No.2 and he tendered his evidence by way of affidavit Ex.PW3/A and also relied upon the same documents as relied upon by PW1, in addition to documents Ex.PW3/A which is a Special Power of Attorney executed by Sh. Lalit Kumar, Kishan Kumar, Plaintiffs No.4, 5, Smt. Sushila, Rohit and Mohit.
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 12 of 24 PW4 is Sh. Satish Chand, Head Clerk, Delhi Jal Board who produced the summoned record of water connection bearing No.109821 and K. No.1968671000, registered in the name of Mohan lal and Yashpal, installed at property bearing No.3026/7. Same is Ex.PW4/1.
All the PWs were duly cross examined by the ld. Counsel for opposite side.
(10)During defendant's evidence, the defendant has examined only one witness i.e. DW1 Sh. Sandeep Mahajan, who tendered his evidence by way of affidavit Ex.DW1/A. DW1 has relied upon the following documents :
1. Ex.DW1/1 is original Power of Attorney.
2. Ex. DW1/2 is certified copy of sale deed dated 18.05.1972.
3. Ex. DW1/3 is Certified copy of affidavit.
4. Ex. DW1/4 is certified copy of agreement to sell.
5. Ex.DW1/5 (Colly.) are the certified copies of the receipts of lease money.
6. Ex.DW1/6 is certified copy of the Sale Tax registration.
7. Ex.DW1/7 is certified copy of the Factory License.
8. Ex.DW1/9 is certified copy of electricity bill.
9. Ex.DW1/10 is certified copy of telephone bill.
10. Ex.DW1/11 is certified copy of the Fire report.
11. Ex.DW1/12 certified copy of the photographs.
12. Ex.DW1/13 is certified copy of complaint to SHO.
DW1 was duly cross examined by ld. Counsel for opposite side. Thereafter the matter was fixed for final arguments.
(It is pertinent to mention here that defendant Sh. Yash Pal Mahajan expired during the pendency of the suit whereupon vide order dt. 22.12.16 his LRs were impleaded as party to the suit.) Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 13 of 24 (11) Final arguments are heard and record is perused carefully. Now the finding of this court on the issues settled in the original suit as well as the counter claim are as follows: ISSUE No.1 Whether the suit of the plaintiff is barred under Order 2 Rule 2 of CPC, as alleged in the written statement? OPD.
The onus to prove this issue was placed upon the defendant. However, since during the final arguments, the Ld. Counsel for defendant stated in the court that he gives up this issue and does not press for the same, the same stands decided against the defendant and in favour of the plaintiffs.
ISSUE No.2 Whether the suit of the plaintiff is barred by Limitation? OPD.
The onus to prove this issue was also placed upon the defendant. To discharge this burden, the Ld. Counsel for the defendant has argued that since, the plaintiffs are seeking a declaration that the agreement dated 23.10.1975, be declared as a mortgage, the suit of the plaintiffs is barred by limitation, as a suit for declaration as per article 58 of Indian Limitation Act should have been filed within three years from the day the cause of action arose in favour of the plaintiffs. To fortify his arguments, the Ld. Counsel has further argued that in para 15 of the plaint, the plaintiffs have categorically averred that the cause of action arose in their favour on various occasions when they offered the defendant to accept and receive the security amount of Rs.15000/ but he avoided to receive the same. Accordingly, this claim of the plaintiffs in their pleadings clearly shows that the suit of the plaintiffs is barred by limitation for seeking such declaration as when the specific dates on which the offers were made to the defendant are not specified, it cannot be presumed that the period of limitation counted from the date of issuance of legal notice on 22.01.2005 would make the suit of the plaintiff Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 14 of 24 within limitation. The ld. Counsel has also submitted that since the plaintiffs have claimed that despite their offers, the defendant failed to execute and register the agreement in question, they should have filed a suit within a period of three years, in view of article 58 of the Limitation Act to seek specific performance of the conditions of the agreement. However, the present suit has been filed much after the time when such offers were refused by the defendant and accordingly, makes the suit of the plaintiffs barred in view of article 58.
The Ld. Counsel has further submitted that the agreement dated 23.10.1975 Ex.PW1/3 (also as Ex.DW1/4), relied upon by the plaintiffs is also not a mortgage deed and is an agreement to sell Ex.PW1/3 though it is drafted in such a language with the use of word "mortgage" at some places so as to suggest that it is an agreement for mortgage whereas the intention of the parties to the document was always to create an agreement to sell as is clearly reflected from the use of the word "irrevocable" as a mortgage can never be irrevocable. Accordingly, it is argued by the ld. Counsel for the defendant that since the agreement in question is not a mortgage deed, the suit of the plaintiff is barred by limitation in view of article 58 of the Limitation Act. The ld. Counsel has further submitted that as the suit property is an immovable property having worth more than Rs.100/ and the alleged secured amount Rs.15,000/ was also more than Rs.100/, the agreement in question Ex.PW1/3 being not registered as required under Section 17 of the Registration Act, the same cannot be relied upon as an evidence of any transaction affecting such property. However, the protection is still available to the defendant as his counterclaim, though, based on the same document, is a suit for specific performance of contract.
On the other hand, the ld. Counsel for the plaintiffs has submitted that there is no merit in any of the contentions of the ld. Counsel for defendant as the bare perusal of the agreement Ex.PW1/3 clearly shows that the agreement in question is a mortgage deed and accordingly, since the present suit seeking redemption of the mortgage is filed within 30 years, which is the period of Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 15 of 24 limitation prescribed under article 61(a) of the Limitation Act as no time is fixed specified for redemption, the suit of the plaintiff is within the period of limitation. Further, as far as the claim of the ld. Counsel for the defendant that a suit for declaration that the agreement in question is a mortgage should have been filed within three years from the date on which the cause of action arose in favour of the plaintiffs, is concerned the same is also in favour of the plaintiffs as on the receipt of the knowledge that the defendant is now wrongly claiming that the agreement in question to be an agreement to sell (which knowledge was gathered by the plaintiffs only on the receipt of the written statement of the defendant on 07.01.2005 in another connected suit bearing No.97692/16, pending between the parties) and they immediately filed the present suit in the court on 29.04.2005, clearly shows that the above said contention of the defendant is also without any merits as the suit is within the period of limitation for the purpose of article 58 of Limitation Act as well. Accordingly, it is argued by the ld. Counsel for defendant that the defendant has failed to discharge his onus.
I have heard both the sides on this issue at length. Before proceeding further with the appreciation of the evidence on record, it would be very apt to go through the contents of the agreement dated 23.10.1975 which is the subject matter of the present dispute. For better understanding, the entire agreement dated 23.10.1975 is reproduced below: "AGREEMENT"
"This agreement is executed at Delhi on this 23 rd of October, 1975, between Sh. Mohan Lal and Sh. Sher Singh, Sons of Sh. Hari Chand @ Har Chand, R/o Shadipur, New Delhi (hereinafter called the first party) in favour of Sh. Yashpal, s/o Sh. Diwan Chand, R/o 2736, Ranjit nagar, Delhi, partner of Yash Industries (hereinafter called the second party) whereas the first party is the owner and in possession of the property No.XVII/3026 min., consisting of two rooms, courtyard with enclosure Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 16 of 24 constructed on piece of land measuring 200 sq. yards out of Khasra No.7 situated in the area of Village Shadipur, Abadi of Ranjit Nagar, New Delhi - 110008 and bounded as under:
North - Road South - Property of first party
East - property of first party West - property of Piyare Lal
The above said property is self constructed of the first party. Whereas the first party has agreed to mortgage the above said property in favour of the second party and the second party has agreed to get it mortgaged with possession for a sum of Rs.15,000/ (Rs. Fifteen Thousand only). NOW THIS DEED IS WITNESSETH AS UNDER:
That the first party has received a sum of Rs.15000/ from the second party in advance by means of the separate receipt.
The possession of the above said property has been given to the second party who had occupied the same.
When the deeds are permissible then the first party will execute the proper deed in favour of the second party or his nominees. The rent and interests will be equal.
If the first party will not perform their part of contract the second party can get it completed through court of law at the cost and expenses of the first party.
That the above said property is free from sale, mortgage, gift, acquisition and transfer etc. prior to this otherwise then the first party will be liable for the same.
That this agreement will remain irrevocable and binding on the parties, their heirs, successors, assignee's etc. The house tax will be paid by the party no.2.
In witness whereof this deed of agreement is executed at Delhi on this date, month and year above written."
First party Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 17 of 24 (Signature of executant) Witnesses Second party (Signature of witnesses) (Signature of executant) As already observed above, there is no dispute regarding the execution of the agreement Ex.PW1/3 in dispute. Hence, the only thing which the court is required to ascertain is whether the agreement in question is an agreement for mortgage as claimed by the plaintiffs or is an agreement to sell as claimed by the defendant / counter claimant. However, after going through the contents of the agreement Ex.PW1/3, the court does not find any merits in the contention of the ld. Counsel for defendant and it cannot be presumed by any stretch of imagination that the document in question is an agreement to sell. Para 3 of the agreement clearly specifies that the first party has agreed to mortgage the property in favour of the second party and the second party has agreed to get it mortgaged with possession for a sum of Rs.15,000/. The use of the word "mortgage" clearly specifies that the intention of the parties was to create a mortgage with possession in the nature of usufructuary mortgaged as defined under Section 58 (d) of Transfer of Property Act. As far as the contention of the Ld. Counsel that the use of the word "irrevocable" suggests that the agreement in question is an agreement to sell as a mortgage can never be irrevocable is concerned the same also does not appears to be correct as the word "irrevocable" appearing in the last para of the agreement has to be read with the complete sentence and the collective reading of the same shows that what was agreed to be made irrevocable was not the mortgage but only the agreement in question. Further, not a single line of the agreement Ex.PW1/3 at any place suggests that there was any intention of the party to enter into any agreement to sell. Accordingly, when the wording of the document clearly does not suggest the same to be an agreement to sell, it cannot be imputed by any stretch of imagination that the agreement is reflecting an intention contrary to the wishes of the parties to the said document which are reflecting through its contents. As such Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 18 of 24 there is no ambiguity in the document to read it as an agreement for mortgage.
As far as the objection of the ld. Counsel for defendant that since the document in question pertains to an immovable property and the alleged security money was also worth more than Rs.15,000/, the fact that the document is not registered as required under Section 17 of the Registration Act, the same can not be relied upon in evidence in terms of Section 49 of the same Act, is concerned, the said contention also goes against the defendant as in such a case as the document being unregistered would not pass/transfer any right in the suit property to the defendant and as there is no dispute to the fact that the plaintiff was the original owner, the legal title and the legal possession of the property will remains with him only and the possession of the defendant would be only permissive in nature. In the case of Babu Parasu Kaikadi (Dead) By Lrs vs Babu (Dead), Through Lrs, AIR 2004 SC 754, also the same view was taken by the Hon'ble SC.
On the other hand, the said document can still be used for a limited purpose to ascertain the nature of possession as in the instant case the agreement shows that the possession was permissive. An unregistered document can always be availed of for the purpose of showing character and nature of possession of the person who was placed in possession of the property under that document. (reliance placed on Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 and Sardar Amar Singh v. Surinder Kaur, AIR 1975 MP 230 FB).
Accordingly, for claiming possession on the basis of title also the suit of the plaintiff would be within the period of limitation as prescribed under Article 65 of the Limitation Act as the permissive possession of the defendant would become adverse only when the defendant first time claimed to be the owner of the suit property in his WS filed in suit no 97692/16 on 07.01.15.
In view of the above said discussion, the present issue stands decided in favour of the plaintiffs and against the defendant/counter claimant. Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 19 of 24 ISSUE NO.3 Whether the suit of the plaintiff is under valued for the purposes of court fees and jurisdiction? OPD.
The onus to prove this issue also lies on the defendant. To discharge this burden, it is argued on behalf of the defendant that the value of the suit property is much more than Rs.15000/,and this fact was also admitted by the PW2 and 4 during their crossexamination. Accordingly, since the value of the suit property is more than Rs.15,000/, and the agreement in question claimed by the plaintiffs to be a mortgage is also unregistered and accordingly not admissible in evidence, the valuation of the suit for the purpose of court fee and jurisdiction is not proper and as the plaintiffs are also seeking the possession of the suit property they should have valued their suit on the basis of its market value and accordingly should have paid the advolerem court fee on the same.
On the other hand, the ld. Counsel for the plaintiffs has submitted the execution of the agreement Ex.PW1/3 is not denied by the defendant and since the plaintiffs are themselves the owner of the suit property and the present suit is only for the redemption of the mortgage and the security amount was the value of the suit property, the valuation of the suit on security amount is proper.
Admittedly, the execution of the agreement dt. 23.10.1975 is not disputed by the defendant though they have claimed it to be an agreement to sell. However, the said controversy has already been set to rest by the court by holding the agreement to be an agreement for mortgage. However, since it is also an admitted fact that such agreement is an unregistered agreement and has not complied with the mandate of section 17 of Registration Act, it can not be relied upon by the plaintiff to prove the transaction in question though it can be used for the limited use to ascertain the nature of such transaction. As such due to non registration legally no rights passed to the defendant and as such his possession is only permission in nature. However, since the title of the plaintiffs is not in dispute they have all the rights to get back the possession of the suit property on Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 20 of 24 the basis of their title as was already observed in decision on issue no.2. However, for seeking possession of the suit property the plaintiffs should have valued their suit on its market value and accordingly pay ad volrem court fee thereon.
In the present suit the plaintiffs have valued their suit for the relief of redemption of mortgage at Rs.15,000/, for the relief of possession at Rs.15,000/ , for declaration at Rs.200/ and for damages and mesne profits at Rs.33,500/. Now, as far as the contention of the defendant that it was admitted by PW2 and 4 that the value of the suit property is more than 15,000/ and therefore its valuation at security amount is not appropriate, is concerned it is pertinent to mention here that no such admission was made by either PW2 or PW4 in their depositions during their crossexaminations. On the contrary such suggestions were neither admitted nor denied by the PWs and they simply deposed that they can not say anything about the value of the suit property. Further, during his evidence also the defendant could not placed on record any material to show that the value of the suit property is above Rs.15,000/. The size of the suit property is about 200 Sq. yards. However, merely on the basis of its size it can not be said that the valuation of the plaintiffs is incorrect as it is matter of right of a plaintiff to value his property provided such valuation is not utterly arbitrary and unreasonable. However, in the instant case the defendant has failed to prove so. Accordingly, even though the plaintiffs may not be able to seek possession of the suit property on the basis of agreement Ex.PW1/3, however, since their title to the suit property is not disputed , the valuation of the suit for the relief of possession on the basis of security amount can not be said to be improper.
In view of above said discussion, this issue also stands decided in favour of the plaintiffs and against the defendant.
ISSUE NO.4 Whether the defendant has become the owner of the suit property by virtue of Section 53A of Transfer of Property Act? OPD.
The onus to prove this issue also lies on the defendant. However, in Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 21 of 24 view of the decision arrived at issue No.2, since it is already held that the agreement in question is a mortgage deed, this issue stands decided against the defendant and in favour of the plaintiffs.
ISSUE NO.5 Whether the plaintiff is entitled to a decree of declaration, as prayed for? OPD.
The onus to prove this issue has been placed upon the defendant. However, it appears to be a typographical mistake as since the relief is claimed by the plaintiffs, the onus to prove the same should also lie upon them only.
As already decided in issues No.2 and 4 that the agreement in question is a mortgage deed, this issue also stands decided in favour of the plaintiffs and against the defendant.
ISSUE NO.6 Whether the plaintiff is entitled to a decree of redemption, as prayed for? OPP.
The onus to prove this issue lies on the plaintiffs. However, as already observed in issue no. 2 and 3 that the agreement Ex.PW1/3 is unregistered and accordingly can not admitted in evidence to prove such transaction in view of mandate of section 49 of Registration Act, this issue stands decided against the plaintiffs and in favour of the defendants.
ISSUE NO.7 Whether the plaintiff is entitled to a decree of possession of the suit property?
OPP.
The onus to prove this issue lies on the plaintiff. In view of the decision of issue No.2 and 3 , this issue also stands decided in favour of the plaintiffs and against the defendant, and the plaintiffs are held entitled to a decree of possession of the suit property on the basis of their title.
ISSUE NO.8 Whether the plaintiff is entitled to damages, as prayed for? If so, at what rate and for what period. OPP.
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 22 of 24 The onus to prove this issue lies upon the plaintiffs. In view of the decision on issues No.7, this issue also stands decided in favour of the plaintiffs and against the defendant. The plaintiffs are held entitled for damages of Rs.33,500/ along with interest @ 12% per annum. The plaintiffs are also held to the further damages @ Rs.500/ per day from the date of the filing of the suit till the possession of the suit property is delivered.
(10)The issuewise finding of this court on the issues settled in the counterclaim are as follows: ISSUE NO.1 What is the effect of document dated 23.10.1975? Onus of proof on parties.
The Onus to prove this issue was placed upon both the parties. However, in view of the decision of issue No.2 in the main suit, as the agreement in question is held to be a mortgage, accordingly, this issue stands decided in favour of the respondents/ plaintiffs and against the counterclaimant/defendant. The effect of the decision is that agreement in question is a mortgage and not an agreement to sell.
ISSUE NO.2 Whether the counterclaimant has become the owner of the suit property by virtue of Section 53A of Transfer of Property Act? OCC.
The onus to prove this issue also lies on the counterclaimant. However, in view of the decision arrived at issue No.2 in main suit, since it is already held that the agreement in question is a mortgage deed, this issue stands decided against the counterclaimant/defendant and in favour of the respondents/plaintiffs.
ISSUE NO.3 Whether the counterclaim is barred by period of Limitation? OPD.
In view of the decision arrived in issue No.2 of the main suit, as the Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 23 of 24 agreement is already held to be a mortgage and not an agreement to sell, this issue also stands decided against the counterclaimant and in favour of the respondents/plaintiffs.
ISSUE NO.4 Whether the counterclaimant is entitled to the relief of specific performance, as prayed for? OCC.
In view of the decision on the above said issues, as it is already held that the agreement in question is not an agreement to sell, this issue also stands decided against the counterclaimant and in favour of the respondents/plaintiffs.
ISSUE Relief In view of the decision, in above said issues, the main suit of the plaintiffs is decreed and plaintiffs are held entitled to a decree of declaration and possession of the suit property. Plaintiffs are also held entitled to a decree of Rs.33,500/ as damages for the illegal occupation of the suit property by the defendant along with interest @ 12% per annum from the day of the filing of the suit. The plaintiffs are also held entitled to future damages @ Rs.500/ per day from the day of the filing of the suit till the possession of the suit property is handed over by the defendant. Suit of the plaintiffs is accordingly decreed. Counterclaimant is not held entitled to any relief and accordingly, the counter claim stands dismissed. The plaintiffs are also held entitled to the costs of their suit.
Decree sheet be prepared accordingly. Digitally
signed by
File be consigned to Record Room. BALWINDER
BALWINDER SINGH
SINGH Date:
Announced in the Open Court on this 2018.05.09
16:38:49
28th day of April, 2018 at 03.30 p.m. +0530
BALWINDER SINGH
CIVIL JUDGE07(CENTRAL)
DELHI/28.04.2018
Sh. Mohan Lal (now deceased through LRs) & Ors. vs. Sh. Yaspal Mahajan (since deceased through his LRs) Civil Suits No. : 93486/16, and Sh. Yaspal Mahajan (since deceased through his LRs) vs. Sh. Mohan Lal (now deceased through LRs) & Ors. Counter claim no. 93320/16 Page 24 of 24